Indirect discrimination occurs in cases where the same treatment is applied to everyone, but it affects certain people in a worse way.
As stated originally by the European Court of Justice, the principle of non-discrimination prohibits "not only overt (direct) discrimination […], but also all covert (indirect) forms of discrimination which, by applying other distinguishing criteria, lead in fact to the same result".
Indirect discrimination is where a seemingly neutral practice, policy or rule that applies to everyone, has a worse effect on, or consequences for, some people as compared to others, due to their particular characteristics (also called protected characteristics). Indirect discrimination does not necessarily require a discriminatory intent.
However, even in cases where there is a negative effect or consequences, it might not result in discrimination, if the treatment is justified. To prove the justification, it must be shown that there is a legitimate aim to a certain practice (a real need) and that the practice is proportionate to that aim. Namely, that it is necessary and that there is no alternative means available that is less discriminatory.
example Cases of indirect discrimination can include a job requirement to speak an official language at the level of a native speaker, which may put minority language speakers at a disadvantage, a requirement for a specific height for a job which may disadvantage women, or an employer’s requirement to meet a physical fitness test, which might work to the disadvantage of older people.
In practice, it is sometimes difficult to distinguish between indirect discrimination and allowed differential treatment.
example An employer may legitimately establish requirements related to official language proficiency for those employees who regularly work with clients. But, the same requirement may be too high and constitute indirect discrimination on the grounds of ethnic origin, if established for persons cleaning back offices, where there is no regular communication with other people.
An indirect discrimination may arise from a neutral rule, from a de facto situation related to a general practice, or from a policy. It can also arise from an action by private individuals such as an employer.
example There is an indirect discrimination when an employer decides to grant a pay rise to all employees who will declare themselves as disabled after his decision is taken, but not to those who have already declared themselves as such. Although this measure is neutral in appearance, it creates a difference in treatment depending on when the disability was declared. It results in a disadvantage for those who could not hide their disability and had to declare themselves disabled prior to the employer’s decision.
The law does not require the victim of indirect discrimination to provide statistical evidence of the discrimination they suffered from, however in practice, one of the only ways to prove this discrimination is to demonstrate through statistics that their group will be treated less favourably than another group. This condition is implicitly required by the European Court of Justice who states that “an indirect discrimination is likely to arise where the application of a neutral measure disadvantages a much greater number of persons who possess the protected characteristic than persons who do not possess it.”