The myth of associative discrimination and the Court of Justice’s great vanishing act: part 2

Abstract

This article complements an article (part 1) recently published in this journal (72(1) NILQ 29–60) contending that the notion of associative discrimination as a term of art renders it so vulnerable to manipulation that it can be used to narrow the scope of the legislation. That argument was rooted in the UK Supreme Court’s reasoning in Lee v Ashers Bakery [2018] UKSC 49. Part 2 continues the theme, but this time to show that the vulnerability can work the other way, producing, first, an ‘extended’ notion of associative discrimination and, second, radically broad notions of direct and indirect discrimination. This limb of the thesis also argues that a case heralded as one of associative discrimination, CHEZ [2016] CMLR 14, was no such thing. It concludes that the ambitious approach of the European Court of Justice and its Advocates General will blur the traditional form-based distinction between direct and indirect discrimination.