Sex Discrimination – A Problem of Just ‘A Few Bad Apples’?

Keywords: discrimination, sex/gender, protected ground, intent, motive, burden of proof, formal and substantive equality

Abstract: In Czechia, anti-discrimination law is not faring well. Using the example of sex discrimination, the paper shows and attempts to explain this (and continues the analysis presented in previous issue’s Sex Discrimination before Czech Courts – a Typology of Cases, Evasion Strategies, and Fear of Protected Grounds). This paper discusses two problems in depth. First, most courts look for motive and their understanding of motive is akin to intent. Moreover, they rarely correctly shift the burden of proof to defendants. Both approaches make discrimination practically unwinnable for plaintiffs. Second, indirect discrimination is interpreted exceptionally narrowly – instead of targeting the structures which have a gendered impact, courts believe that it is up to the individual to overcome them. The second part aims to answer the question why by exploring the conceptual underpinnings of these inhibitions in application and interpretation and the doctrinal minimization of anti-discrimination law. First, it observes that equality and anti-discrimination are either understood very widely (as a general prohibition of disparate treatment) or very narrowly (courts look for intent and believe that discrimination is an exceptional act committed only by ‘a few bad apples’). Second, judges are at most willing to apply formal equality, but are clearly uncomfortable with a substantive understanding of equality. Third, the perception of differences between the sexes as natural, as well as the ready acceptance of the motherhood penalty as an unproblematic consequence of women’s free choice, means that judges can be incapable of seeing men and women as truly comparable. This constrains their ability to find discrimination. Finally, the blindness to gender order / patriarchy and the structural nature of inequality means that courts are not suspicious of practices which indicate bias or show disparity of treatment or impact.