Concept of Equality

Question 1

Formal equality

Answer 1

Formal equality holds that equality requires equal treatment between different individuals regardless of their characteristics. Equality as consistency, based on the Aristotlean notion that like cases should be treated alike.

Question 2

Substantive equality

Answer 2

Holds that equality means treating individuals as equals, rather than treating them in the same way. Thus, it may be legitimate to treat individuals differently in order to treat them as equals.

Substantive equality recognises that individuals are not all born equal and in fact there are significant disadvantages faced by certain groups. This means that in order to achieve equality it would be crude to require equal/consistent treatment between all individuals, and in fact does not achieve true equality.

Question 3

Strands of substantive equality

Answer 3

1) Equality of results - this is a more extreme form of substantive equality which mandates particular outcomes in order to achieve genuine equality. E.g. would impose 50-50 quotas for men and women as partners of a law firm. Note that equality of results is the most offensive conception of substantive equality to formal equality.
2) Equality of opportunity - this is a softer form of equality that may be seen as an intermediate between formal equality and equality of results. Requires equalising starting points of different individuals, which may require different treatment but to a less severe extent than equality of results. May manifest itself in the form of training, outreach programmes etc. targeted at certain groups only who are systematically disadvantaged.

Question 4

Fredman

Answer 4

‘Discrimination Law’ - argues that substantive equality of opportunity requires measures to be taken to ensure that persons from all sections of society have a genuinely equal chance of satisfying the criteria for access to a particular social good.

Individuals cannot start the race fairly if they all begin at different starting points. Systematic advantage means that X group may have an inherent advantage, so substantive equality of opportunity requires positive steps to be taken to redress this imbalance.

Question 5

Hugh Collins

Answer 5

‘Discrimination, Equality and Social Inclusion’ - argues that there is an inherent tension between formal and substantive equality because equal treatment focuses on procedure rather than outcome. Therefore, equal treatment can always be challenged as obstructing the achievement of a particular outcome.

Both models of substantive equality aim to achieve an outcome that concerns distribution of advantages among social groups, but equal treatment is supposed to forbid consideration of membership groups as a relevant criterion. Thus the two are constantly in conflict - therefore, there needs to be a better means of explaining the redistributive function of equality law. This can better explain when it is fair to treat people the same, and when it is fair to treat them differently.

Collins suggests that the alternative to explain the redistributive function of equality law is ‘social inclusion’. Social inclusion is an element of justice which aims to secure a minimum level of welfare for every citizen. All citizens should have the ability to access certain social goods. If a PCP aims to reduce social exclusion of a marginalised group, then we can justify deviation from the equal treatment principle.

Question 6

Collins on ID

Answer 6

‘Discrimination, Equality and Social Inclusion’ - in putting forward his argument of social inclusion as the redistributive rationale for equality law, Collins explains that indirect discrimination more closely approximates with substantive equality than formal equality.

Where ID applies, formal equality as equal treatment becomes unlawful because the rule disproportionately affects one of the protected groups. Hence, ID is an example of UK law explicitly deviating from formal equality over substantive equality.

E.g. London Underground v Edwards. LU treated all tube drivers the same in changing shift patterns, so complied with equal treatment principle. Nevertheless, it was this equal treatment that was actually unlawful under s 19 EqA 2010 because the CA was willing to logically infer that women were more disadvantaged than men by the policy (since 100% of men unaffected compared to 95% of women).