Associative and perceptive discrimination 



Under section 13 of the EA 10, to claim direct discrimination 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 detrimental treatment is due in some way to a protected characteristic. This broad language has important implications for the scope of protection under the EA 10. The definition is wide enough to prohibit discrimination against a person without the protected characteristic because they associate with someone who does. For example, it would be discrimination to treat someone less favourably because their son is disabled.


Similarly, it is discrimination to harass someone by using insulting language linked to the protected characteristic, even if everybody knows the person who suffers the detriment does not have the protected characteristic. 



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.



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.


The position may be more complicated in the case of “perceived disability discrimination” (where someone is treated less favourably because they are mistakenly believed to be disabled). This kind of claim may be more difficult to bring, because of the need for a claimant to meet the strict definition of disability in the EA 10 – see page 213 (J v DLA Piper UK Limited [2010] IRLR 936). Courts and tribunals have yet to produce a binding ruling on this issue.


Protection against associative and perceptive discrimination does not extend to the protected characteristics of pregnancy, maternity, marriage or civil partnership. Only individuals who have these protected characteristics themselves are protected (sections 8 and 18, EA 10).