Fri 18 Oct 2019

Stereotypes in Discrimination Law

In the recent case of Commerzbank AG v Rajput [2019] I.R.L.R. 772 the EAT has grappled with the concept of stereotypes and what Judges should make of them when confronted with them in evidence.

The Claimant had brought complaints against the Respondent including direct sex discrimination, harassment and maternity leave discrimination. The ET upheld the claims on the basis that the decision-makers had acted on the basis of certain stereotypical assumptions about women and about women taking maternity leave.

The Respondent appealed the decisions on sex discrimination/harassment on the grounds that it had been no part of the Claimant's case that the decisions were based on stereotypical assumptions; nor had the Tribunal suggested to the Respondent, or its witnesses, that it had such matters in mind in its consideration of the inferences to be drawn about the reasons for the alleged discriminatory conduct. The reference to stereotypical assumptions had appeared for the first time in the Judgment; and accordingly, the Respondent and its witnesses had had no opportunity to challenge the existence of the alleged stereotypical assumptions, or their application to the conduct of the decision-makers; and that this constituted unfairness.

The EAT upheld the appeal on sex discrimination/harassment, holding that the Respondent and its witnesses should have been given prior notice and an opportunity to respond to the suggestion that it had acted on the basis of stereotypical assumptions and the failure to do so was unfair.

The EAT rejected the Claimant's submission that a tribunal's use of its experience of stereotypical assumptions falls into the category of knowledge which may be applied in a general way without prior notice to the parties. The EAT held that a tribunal's use of its experience of stereotypical assumptions is at best specialist knowledge (or at least belief) which, if it is to be relied on for the purpose of drawing inferences about the conscious or unconscious reasoning of the decision-maker, must be disclosed to the parties and their advisers; and to any witness whose decision-making is in question. Without such notice, the Respondent and its representatives will not be in a position to challenge or test the alleged stereotypical assumption, either as to its general existence or as to its application in the case of the decision-maker. Likewise, a witness must be given the opportunity to answer the suggestion that he or she was influenced by such an assumption.

So whilst specialist tribunals like the Employment Tribunal which hear discrimination claims have a wide scope to apply their own body of knowledge from their experience from hearing and assessing the evidence in such claims, if they are going to cite the application of stereotypical assumptions by the alleged discriminator as a basis for upholding allegations of discrimination, it must give the party in question the right to question the existence of such a stereotype and their witnesses the right to answer the allegation that they were influenced in their decision by stereotypical assumptions.

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