Chapter 2. The Concept of Discrimination

Abstract

Discrimination may involve either unjustifiable differential treatment or unjustifiable like treatment. This chapter presents the conceptual difference between two important sub-concepts of discrimination known as direct discrimination and indirect discrimination. Somewhat oversimplified, one may say that direct discrimination is when like cases are unjustifiably treated differently; while indirect discrimination is when relevantly different cases are treated in a way which unjustifiably fails to take into consideration the consequences of those differences. The concept of indirect discrimination has developed over the last three decades, but its full potential is yet to be reached. In some states, the courts have interpreted antidiscrimination legislation so as to include a prohibition against indirect discrimination, while other states have explicitly included its prohibition in the law.Keywords: antidiscrimination law; direct discrimination; discriminatory effect; discriminatory intent; ethnic discrimination; human rights; indirect discrimination