Article 21 - Non-discrimination
Article 26 - Integration of persons with disabilities
Article 1 - Human dignity
19. The Directive prohibits direct discrimination, (12) harassment (13) and indirect discrimination. (14) The distinguishing feature of direct discrimination and harassment is that they bear a necessary relationship to a particular suspect classification. The discriminator relies on a suspect classification in order to act in a certain way. The classification is not a mere contingency but serves as an essential premise of his reasoning. An employer’s reliance on those suspect grounds is seen by the Community legal order as an evil which must be eradicated. Therefore, the Directive prohibits the use of those classifications as grounds upon which an employer’s reasoning may be based. By contrast, in indirect discrimination cases the intentions of the employer and the reasons he has to act or not to act are irrelevant. In fact, this is the whole point of the prohibition of indirect discrimination: even neutral, innocent or good faith measures and policies adopted with no discriminatory intent whatsoever will be caught if their impact on persons who have a particular characteristic is greater than their impact on other persons.(15) It is this ‘disparate impact’ of such measures on certain people that is the target of indirect discrimination legislation. The prohibition of such discrimination ties in with the obligation of employers to accommodate those groups by adopting measures and designing their policies in a way that does not impose a burden on them which is excessive compared with that imposed on other people.(16) In this way, while the prohibition of direct discrimination and harassment operates as an exclusionary mechanism (by excluding from an employer’s reasoning reliance on certain grounds) the prohibition of indirect discrimination operates as an inclusionary mechanism (by obliging employers to take into account and accommodate the needs of individuals with certain characteristics). It is for this reason that even if we were to accept the argument of the United Kingdom Government that discrimination by association is clearly outside the scope of the prohibition of indirect discrimination that does not mean in any way that it also falls outside the scope of the prohibition of direct discrimination and harassment. On the contrary, including discrimination by association in the scope of the prohibition of direct discrimination and harassment is the natural consequence of the exclusionary mechanism through which the prohibition of this type of discrimination operates.
23. Therefore, if someone is the object of discrimination because of any one of the characteristics listed in Article 1 then she can avail herself of the protection of the Directive even if she does not posses one of them herself. It is not necessary for someone who is the object of discrimination to have been mistreated on account of ‘her disability’. It is enough if she was mistreated on account of ‘disability’. Thus, one can be a victim of unlawful discrimination on the ground of disability under the Directive without being disabled oneself; what is important is that that disability – in this case the disability of Ms Coleman’s son – was used as a reason to treat her less well. The Directive does not come into play only when the claimant is disabled herself but every time there is an instance of less favourable treatment because of disability. Therefore, if Ms Coleman can prove that she was treated less favourably because of her son’s disability she should be able to rely on the Directive.