Associative and perceptive discrimination 




To claim direct discrimination under section 13 of the EA 10, there is no need for the person who suffers the detriment to have the protected characteristic themselves. The test is simply that “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.




In other words, it is enough that the less favourable treatment is due in some way to a protected characteristic. The definition is wide enough to capture less favourable treatment of someone because they associate with someone else who has the protected characteristic (associative discrimination). For example, it would be discrimination to treat someone less favourably because their son is disabled.
 


For the same reason, it can be unlawful discrimination to treat a person less favourably because they do something that is connected to a protected characteristic, for example, acting as a witness to support the grievance of a co-worker who has suffered discrimination, speaking up in the workplace on behalf of disabled workers, or campaigning politically against discrimination. This would also be victimisation (see page 225).




The definition of direct discrimination is also broad enough to ban “perceptive” discrimination. This is where an employee is treated less favourably because they are mistakenly believed to have a protected characteristic, for example, where an employee is treated less favourably for being a Muslim when they are of another faith, or of no faith, or where a worker is discriminated against because they are mistakenly thought to be older than they are, or a job applicant is denied a role because of a mistaken belief that they have a disability (see page 198: Perceived disability). 


There is no protection from associative and perceptive discrimination due to pregnancy, maternity, marriage or civil partnership. Only individuals with these protected characteristics are protected (sections 8 and 18, EA 10).