Indirect discrimination

Discrimination can take many different forms. Amongst other things, discrimination can be direct, indirect, intersectional, intentional, unintentional, based on association with a person to whom a prohibited ground applies, and based on the perception of a person having a characteristic associated with a prohibited ground. In today’s article, we will be briefly looking at the concept of indirect discrimination.

According to article 5 of the Declaration of Principles on Equality:

“Discrimination must be prohibited where it is on grounds of race, colour, ethnicity, descent, sex, pregnancy, maternity, civil, family or carer status, language, religion or belief, political or other opinion, birth, national or social origin, nationality, economic status, association with a national minority, sexual orientation, gender identity, age, disability, health status, genetic or other predisposition toward illness or a combination of any of these grounds, or on the basis of characteristics associated with any of these grounds”.

Article 5 of the Declaration of Principles on Equality goes on to define indirect discrimination. It states that:

“Indirect discrimination occurs when a provision, criterion or practice would put persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.

One example of indirect discrimination is if a company creates a policy that requires all employees to work every week from 9:00 a.m – 5:00 p.m between Monday – Saturday. Though this policy does not explicitly state that Seventh Day Adventists (“SDA’s”) or persons who worship on Saturday must come to work on Saturdays, it is indirectly requiring them to do that. This would go against their beliefs as they observe a Saturday Sabbath. Such a policy would indirectly discriminate against SDA’s and persons who worship on Saturday and would be discriminatory on the ground of creed or religion.

In St Vincent and the Grenadines (“SVG”), the right to non-discrimination is exposited under section 13 of SVG’s Constitution titled “Protection from discrimination on the grounds of race, etc”.

In a nutshell, section 13 of SVG’s Constitution explicitly prohibits the State and public authorities from discriminating against persons on certain expressed grounds.

Indirect discrimination can also be found under section 13 (1) of SVG’s Constitution. Section 13 (1) of SVG’s Constitution states that:

“Subject to the provisions of subsections (4), (5) and (7) of this section, no law shall make any provision that is discriminatory either of itself or in its effect”. Indirect discrimination can be identified under the words “any provision that is discriminatory…of its effect”.

Today, I encourage us to continue to learn about the different forms of discrimination and in particular indirect discrimination. Let us work together to end all forms of discrimination in SVG, especially against vulnerable groups in Vincentian society.

Author: Jeshua Bardoo is a Vincentian Barrister-at-law and Solicitor. He is the President of Equal Rights, Access and Opportunities SVG Inc. He also has an LLM in International Human Rights Law. He can be contacted via email at jeshuabardoo@gmail.com