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In most jurisdictions, discrimination based on race/sex is illegal. Is it legal to discriminate using something that correlates with race/sex, but is not actually race/sex?

Examples:

  • So-and-so company does an analysis on their workforce and find that female workers are more productive. Since they can't legally hire women selectively, they decide to hire shorter workers, which selects for women since men are usually taller.
  • So-and-so company is looking to hire ethnic Chinese workers, and they get around the racial discrimination restriction by saying they want to hire someone with a People's Republic of China passport.

I'd guess it's illegal, but I'm unable to find information on it, e.g. it's not mentioned on this page on gender equality in the workplace at all.

I'm interested in all jurisdictions.

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    This sounds a lot like past requirements for jobs such as flight attendants that had height limits and I would guess a lot would depend on if height has any relevance to the requirements to do the job.
    – Joe W
    Jan 5 at 17:27

2 Answers 2

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Some jurisdictions have the concept of 'indirect' discrimination.

In the this is when there are rules that seem to apply to everyone but they tend to put people with a 'protected characteristic' (e.g. ethnicity, sex) at a disadvantage.

As the questioner suggests:

  • an example of 'direct' discrimination: "men prohibited"

  • an example of 'indirect' discrimination: "people prohibited who are taller than 5 feet 6 inches" (tends to disadvantage men compared to women because of their significant differences in average heights / height distributions)

Or:

  • 'direct': "we won't support deaf people"
  • 'indirect': "we only provide telephone support"

Or:

  • 'direct': "no people over 50"
  • 'indirect': "to get this job you must pass these difficult physical tests"

Indirect discrimination is lawful when the discriminator can provide an 'objective justification', i.e. a good enough reason for it. If it came to the attention of the authorities, the discriminator must persuade them that it is a 'proportionate' means of achieving a 'legitimate aim'; that this aim was necessary, there were no 'reasonable adjustments' that could be made, it could not be achieved by alternative or less discriminatory means.

In terms of being a front-line fire fighter, for example, indirect discrimination against old people (and on the basis of some other protected characteristics) seems reasonable - it requires a certain physical capability (ability to carry hoses, ladders, bodies, climb ladders, not panic when in tight spaces wearing a gas mask, etc). Applicants must pass physical tests.

A more subtle example that arose in 2022 and again in 2023 is from a campaign led by Citizens Advice (Insurance Times report). The claim is that car insurers are discriminating against non-white people, tending to charge non-white people significantly more for car insurance than white people. So Citizens Advice is demanding that car insurers explain themselves.

Car insurers do not collect data about ethnicity when they quote (if at all). They can't directly discriminate on that basis. They may price by postcode - postcodes are a risk factor. Postcodes represent information about risk factors such as population density, crime rates, accident rates, claim rates, fraudulent claim rates, traffic systems, estimates of uninsured drivers in the area. And there isn't an equal distribution of ethnicities across each postcode in the UK.

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In the US, this would be determined in court. There is a concept called disparate impact that can be used to decide if it's worthy to be a case. So if, for example, you didn't hire people who were far-sighted, that would be a disparate impact on people older than 40, and you would be in the cross-hairs.

Disparate impact doesn't require the intent to discriminate. Disparate treatment means doing it intentionally to try to get around discrimination laws.

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