case study equality discrimination

Landmark US Cases Related to Equality of Opportunity in K-12 Education

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*denotes US Supreme Court Case

School Finance

Serrano v. Priest (CA, 1971)

The 1971 case, also referred to as Serrano I, was the first of three cases called  Serrano v. Priest .  Students of Los Angeles County public schools and their families argued that the California school finance system, which relied heavily on local property tax, disadvantaged the students in districts with lower income. The California Supreme Courtfound the system in violation of the Equal Protection Clause because there was too great a disparity in the funding provided for various districts.

*San Antonio Independent School District v. Rodriguez (TX, 1973)

Parents of students in a Texas school district argued that the school finance system in Texas, which relied on local property tax for funding beyond that provided by the state, disadvantaged the children whose districts were located in poorer areas. Unlike the state court in  Serrano v. Priest , the Supreme Court found that the system did not violate the Equal Protection Clause after determining that the system did not intentionally or substantially discriminate against a class of people.

Robinson v. Cahill (NJ, 1973)

Prior to this case, the New Jersey public school funding system relied heavily on local property tax.  The New Jersey Supreme Court found that this system violated the state constitutional guarantee of access to a “thorough and efficient” public education system.

Levittown v. Nyquist (NY, 1982)

The New York school finance system also relied on local property tax, and several districts with low funding challenged the system.  The New York Court of Appeals recognized inequality in the per-pupil spending between districts but concluded that the disparity was not great enough to jeopardize the constitutional right to education.

Abbott v. Burke (NJ, 1985-2011)

New Jersey’s Education Law Center claimed that New Jersey’s school finance system both disadvantaged students in low-income districts and contributed to significant differences in the adequacy of education offered in poor districts compared to wealthy districts.  The New Jersey Supreme Court found the system unconstitutional and ordered that the state implement a program to ensure that funding in the “Abbott Districts” would be comparable to that of the wealthier districts.

Rose v. Council for Better Education (KY, 1989)

The Kentucky Supreme Court found the state school finance system in violation of the Kentucky constitution, formally recognizing adequate education as a fundamental constitutional right.  The Court ordered the state to adhere to seven specific goals in its education reform. 

DeRolph v. State (OH, 1997)

Ohio’s school finance system, which relied heavily on local property tax and contributed to disparities between wealthier and poorer school districts, was found unconstitutional by the Ohio Supreme Court. The Ohio constitution requires that the state provide a certain level of education.  The court called for decreased reliance on property tax as well as other reforms, but the finance system was found unconstitutional several more times in subsequent cases  DeRolph II  and  DeRolph III .

Campaign for Fiscal Equity v. State of New York (NY, 2001-2006)

The Campaign for Fiscal Equity argued that New York’s school finance system was unconstitutional because it failed to provide adequate funding to public schools, thus denying students access to the constitutionally-guaranteed right to a basic education. The Court of Appeals ordered the state to reform the system to ensure students would have the opportunity to receive an adequate education.

Desegregation

*Brown v. Board of Education (1954)

Prior to this case, the "separate but equal doctrine" allowed public schools to deny admission to students based on race.   The Supreme Court unanimously found that segregation of public schools violated the Equal Protection Clause on the basis that segregation was psychologically harmful to black students. The case outlawed state-sanctioned segregation of public schools.

*Green v. County School Board (1968)

Although  Brown v. Board of Education  made de jure segregation, or segregation by law, illegal in public schools, public school districts were still experiencing de facto segregation.  This case found that "freedom of choice" plans, which allowed students to choose the public school they attended, did not adequately address the issue of integrating public schools. The Court declared that school districts must adopt realistic plans for active integration.

*Swann v. Charlotte-Mecklenburg Board of Education (1970)

Before this case was heard by the Supreme Court, a district court had ordered that busing be used to integrate public schools in the Charlotte-Mecklenburg school district.  The Supreme Court unanimously upheld the district court's decision.

*Keyes v. School District No. 1 (1973)

In one of the first cases involving segregation in the northern United States, Latino and African-American students claimed that their Denver school district was practicing de jure segregation.  The Supreme Court found that the district could not consider a school desegregated simply because it had both Latino and African-American students, as both groups of students were similarly discriminated against.  The Court also ruled that if a significant portion of the school district were shown to be de jure segregated, the rest of the district could be assumed to practice de jure segregation (as opposed to de facto segregation) unless the district were able to prove otherwise.

*Milliken v. Bradley (1974)

This case concerns plans for public school integration across districts.  A district court had ordered a system to integrate a segregated Detroit school district; this system involved busing students into and out of neighboring school districts that were not de jure segregated.  The Supreme Court found that this ruling was unconstitutional and specifically that integration could only be legally enforced in districts that displayed de jure segregation.

*Washington v. Seattle School District No. 1 (1981)

A Washington state initiative prevented districts from enforcing mandatory busing policies.  A school district in Seattle, which relied on such a policy to integrate its schools, challenged the initiative in court.  The Supreme Court found the initiative in violation of the Equal Protection Clause because it clearly targeted integration efforts and primarily disadvantaged minority students.

*Freeman v. Pitts (1992)

A school district in Georgia had been found to be segregated several decades earlier and ordered to desegregate by eliminating segregation in six specific areas.  After four of the areas had been accounted for, the district court supervising the school district ceased to supervise those four areas but continued to oversee the integration of the other two.  The Supreme Court upheld the district court’s decision, ruling that a court did not need to maintain control of a school district’s desegregation efforts in all areas if the district was compliant; it only needed to supervise the areas that had not yet been integrated. 

*Missouri v. Jenkins (1995)

A district court sought to remedy de facto segregation in a Missouri school district.  The court ordered a number of changes, including higher pay for teachers and staff that would be funded through increased taxes.  The Supreme Court found that the plan proposed by the district court was unconstitutional because the segregation was de facto and only affected a single school district.  The plan, which would have affected multiple districts, did not fall within the district court’s scope of power.

*Parents Involved in Community Schools v. Seattle School District (2006)

This case concerned the student placement practices of two school districts.  The districts normally allowed students to choose which school they attended, unless a school was overenrolled. In that case, with the goal of racial balance within schools in mind, the districts looked to race as one of the primary factors in placing the student.  The Supreme Court found this practice unconstitutional.  The districts had either not been segregated or had already achieved integration, and the goal of racial balance was found not to be well-defined enough to justify using students’ as the sole factor in their placement.

Sheff v. O’Neill (2008, Connecticut Supreme Court)

The 2008 settlement of the Sheff v. O’Neill case was one of several settlements following a 1996 hearing.  Students in Hartford, Connecticut argued that the city’s schools were segregated and that minority students were not receiving the same resources as white students. District lines had been drawn such that students in the city were separated from students in the suburbs. The Connecticut Supreme Court found the districting unconstitutional and ordered the state to remedy the segregation. Over the following years, various settlements called for the creation of charter and magnet schools to increase racial diversity in Hartford.

Language Equity

*Lau v. Nichols (1974)

Non-English-speaking Chinese-American students in San Francisco claimed that they were being denied equal protection by the school system’s failure to provide additional English language instruction.  While the Supreme Court ruled in favor of the students, it did so by relying on Section 601 of the 1964 Civil Rights Act rather than the Equal Protection Clause; Section 601 protects against discrimination on the basis of national origin. This case paved the way for future decisions regarding bilingual education.

*Plyler v. Doe (1982)

A Texas law allowed the state to withhold school funds for undocumented children.  The Supreme Court found that this law violated the Fourteenth Amendment rights of these children because it discriminated against them on the basis of a factor beyond their control, and because this discrimination could not be found to serve a large enough state interest.

Gender Equity/Title IX (Focused on K-12 Only)

Force v. Pierce City R-VI School District (1983)

A female middle-school student was unable to try out for her school’s football team, as the tryouts were restricted to boys only.  She claimed that the school’s policy violated her Fourteenth Amendment equal protection rights.  The district court ruled in the student’s favor, finding that the school offered no justifiable reason for preventing girls from trying out.

Sharif by Salahuddin v. New York State Education Department (1989)

The state of New York awards merit scholarships to high-achieving high-school students.  Prior to this case, scholarships were awarded based solely on SAT scores.  There was evidence to show, however, that female students received lower SAT scores than males, and that SAT scores were not adequate predictors of female student performance in college.  When female students challenged the practice in court, a federal court determined that the reliance exclusively on SAT scores discriminated against female students and ordered that the state consider high school grades in conjunction with SAT scores in determining scholarship eligibility.

Pfeiffer v. Marion Center Area School District (1990)

A female high school student was dismissed from her school’s National Honor Society (NHS) chapter upon discovery that she was pregnant.  The NHS faculty council cited the student’s engaging in premarital sex as the reason for her dismissal, claiming that this behavior was inconsistent with the values expected of NHS members. The district court found no violation of Title IX. However, the Court of Appeals found that the district court had ignored testimony that the NHS had not dismissed a male student who had also publically admitted to fathering a child while unmarried and ordered the district court to consider this evidence.

*Franklin v. Gwinnett County Public Schools (1992)

A female high school student had been sexually harassed by a teacher.  Faculty and administration at the school had discouraged the student from pressing charges against the teacher, and the student sought monetary damages.  The Supreme Court ruled that the student could indeed sue for damages under Title IX.

Chipman v. Grant County School District (1998)

Female high school students who were unmarried mothers were denied admission to their school’s National Honor Society (NHS).  The NHS chapter claimed that the denial was based on the girls’ characters.  However, the court ruled that the chapter had violated Title IX by discriminating against pregnant women.

Pennsylvania Association of Retarded Children v. Commonwealth (1971)

Prior to this case, a Pennsylvania law allowed public schools to deny admission to students with cognitive disabilities.  The district court hearing the case found the law unconstitutional and required that the state ensure the right to free education for children with disabilities at an appropriate level for the individual child. 

Mills v. Board of Education of District of Columbia (1972)

Shortly after the  PARC v. Commonwealth  decision, several children challenged the District of Columbia public schools in court for both expelling and refusing admission to disabled students.  The schools argued that they did not have the funding or resources to provide an education to disabled children. The district court found the practice in violation of the Equal Protection Clause and ordered the school board to provide equal access to education for disabled students.

*Board of Education v. Rowley (1982)

A New York public school refused to provide a sign-language interpreter for a deaf student, claiming that her academic performance and progress demonstrated that she did not need one.  The student’s parents argued that the school denied her access to education at a level equal to that of her peers. However, the Supreme Court found that the school was providing the child with a free and appropriate public education (FAPE), guaranteed to children with disabilities under the Education for All Handicapped Children Act (EHA, later revised and now called the Individuals with Disabilities Education Act (IDEA)). The Court determined that the school was not responsible for providing a maximally beneficial education and that FAPE could be achieved even if the instruction provided only some educational benefit.

*Smith v. Robinson (1984)

The parents of a boy with cerebral palsy brought suit against his school district for transferring him to a school with inadequate resources.  Before bringing the case to court, the parents had gone through the administrative process detailed in the Education for All Handicapped Children Act (EHA).  The Supreme Court determined that since the EHA was designed to be comprehensive, disabled students and their families must rely only on the EHA in making such claims against schools.

*Honig v. Doe (1988)

The EHA (now IDEA) contains a “stay-put” clause, which states that, in cases where a school wishes to take disciplinary action against a student with disabilities, the school cannot remove the student from the program set in that student’s Individualized Education Program (IEP) until the new plan has been agreed upon by the parents.  A student with an IEP who had been threatened with expulsion brought suit against his school for violating the stay-put clause.  The Supreme Court confirmed that schools must adhere to the stay-put clause, although they can take other disciplinary actions (e.g. a ten-day suspension) if they suspect a student’s behavior may be dangerous.

*Forest Grove School District v. T.A. (2009)

A student with learning disabilities switched from a public school to a private school after the public school failed to meet his needs as a student (a free and appropriate public education, or FAPE). A hearing officer ordered that the public school district reimburse the student for the private school expenses. However, the student had not been receiving special education at the public school. The Supreme Court ruled that the school could be forced to reimburse the student if FAPE had not been provided, regardless of whether the student had previously received special education.

« Section 4: Lawsuits

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Disability Discrimination Case Study – The Equality Act 2010

BY ADISH FARKHAD, EMPLOYER LAW  

Taken from: NRAS magazine, Autumn 2012  

The following is a real case which  Adish  dealt with…  

Joe suffers from left hip early osteoarthritis with femoroacetabular impingement. He believes that this condition amounts to a disability within the meaning of the Equality Act 2010.    Joe is currently employed as a Personal Trainer at “All About Health” gymnasium (his “Employer”) and has worked with them for the past 10 years. Joe was diagnosed with hip early osteoarthritis with femoroacetabular impingement 3 years ago. He feels that he has been treated less favourably by his Employer because of his disability, contrary to the Equality Act 2010.    Joe has, on several occasions, made his Employer aware that he is suffering from a disability for which he requires reasonable adjustments to his working practices. Joe has requested the following adjustments:    1.    regular breaks from his shifts so that he can rest to ease the pain in his hip;  2.    a reduction in his hours but not so much of a reduction that would prevent him from earning a living. He wants to work 27 hours per week;  3.    an adjustment to the shift pattern for Personal Trainers to allow him to work Mondays and Tuesday which are his busiest days (so that he can continue to look after his key clients); and  4.    that his Employer waives its unreasonable request that Joe works every weekend (the quietest times) as part of his working hours as Joe wants to be treated in the same way as his non-disabled colleagues who only have to work one weekend per month.    Employee Booklets

Whilst Joe’s Employer has been on notice of his disability for over 3 years; it has persistently failed to make any adjustments to accommodate his disability. Joe’s manager regularly picks on him for demonstrating his hip pain in the way that he sometimes walks around the gym. His manager’s view is that Joe’s physical impairment does not create a positive image for the gymnasium and its Personal Trainers.    The subjecting of Joe to disability discrimination has meant that Joe has been prevented from working the reduced hours he requested and this has had a detrimental effect on his current health which has exacerbated the effects of his disability. Two months ago, Joe raised a formal grievance as he felt that he had no alternative but to do so in circumstances where all of his previous concerns raised verbally had been ignored. Joe’s Employer did not uphold his grievance and denied all liability for discrimination. Joe’s Employer did, however, agree to reduce his hours to 20 hours per week (with no flexibility or adjustment to enable him to work in excess of that should the need arise), requesting that he works at the quietest times every weekend and preventing him from working at the busiest times on Mondays and Tuesdays. He has also been allowed to take a 10-minute break when he feels in pain on the condition that he authorises the break with his manager so that his manager is aware of his whereabouts.    Joe’s Employer wishes to vary Joe’s terms and conditions of employment to reflect his new working hours (20 hours per week) and days of work to include working every weekend. Joe was told that he would face “proceedings” if he does not accept the proposed varied terms.    Joe considers that his Employer has failed to give any good reason for not agreeing to make the adjustments he requested and that the proposed adjustments that it is willing to make are unreasonable in the circumstances. Joe is aware that new staff are being recruited or being asked to cover Mondays and Tuesdays (his Employer has the maximum number of Personal Trainers already because it is allowing employees without a disability to work on a Monday and Tuesday instead of him).    Joe went to see a solicitor for legal advice to see if he had any potential employment claims against his Employer. He was advised that the Equality Act 2010 requires employers to make reasonable adjustments for employees who have a disability. Also, that employees with a disability should not be treated less favourably because of a disability. In Joe’s case, his employer did not provide any business reasons as to why it could not allow Joe to work 27 hours per week and on a Monday and/or Tuesday. Joe’s Employer had not sought a medical opinion from an Occupational Health Therapist about his disability and what recommended adjustments could be made. In all the circumstances, therefore, Joe’s Employer had failed to make reasonable adjustments. In addition to this, Joe’s Employer subjected him to less favourable treatment by insisting he works at the quietest times every weekend (when his colleagues who did not suffer from a disability did not have to work every weekend) and by insisting that he seeks his manager’s approval before taking breaks, in circumstances when it knew Joe had been bullied by him and that it would not always be possible to obtain such authority.    In addition to a claim for disability discrimination, Joe could also claim victimisation under the Equality Act 2010 because he was subjected to further less favourable treatment because he made a complaint (by raising his grievance) about disability discrimination, as his Employer threatened that he would face ‘proceedings’ if he does not accept the proposed variation to his terms and conditions of employment.    Joe was advised that if he were to pursue a claim in the Employment Tribunal for disability discrimination, he would be entitled to compensation for his injury to feelings, his future loss of income (if he were to resign and leave the gymnasium) and possibly the personal injury he had suffered due to his condition becoming worse as a result of his Employer’s failure to accommodate his disability. It was also explained to Joe that the Employment Tribunal would make a recommendation about reasonable adjustments for his continued employment (if he did not leave).    At the interview with his solicitor, Joe was concerned about the costs involved in pursuing an Employment Tribunal claim. However, when his solicitor discussed the matter with him, it became clear that he had Legal Expenses Insurance which would fund legal assistance. Joe was very surprised he had not realised he had such cover in his Home and Contents Policy. Joe’s solicitor assisted him to apply to his insurers for funding and then issued an Employment Tribunal claim on his behalf.    Employer Law     The Equality Act 2010 is the law which bans unfair treatment and helps achieve equal opportunities in the workplace and in wider society.  For further information and to download publications visit:  www.homeoffice.gov.uk/equalities/equality-act  

Privacy Overview

Ten years of the Equality Act 2010: key cases for employers

Ten years ago, the Equality Act 2010 consolidated discrimination laws into a single piece of legislation. We highlight 10 key employment-related judgments decided under the Act since its introduction on 1 October 2010.

1. Post-employment victimisation confirmed as unlawful

Rowstock Ltd and another v Jessemey (Court of Appeal, 26 February 2014)

Podcast: Ten years of the Equality Act 2010 – what it means for employers

Jo Broadbent, counsel knowledge lawyer at Hogan Lovells, explores the practical impact on employers of discrimination legislation, ten years on from the introduction of the Equality Act 2010.

The Court of Appeal ruled once and for all that the Equality Act 2010 does protect individuals against victimisation after their employment has ended, resolving previous conflicting case law on this issue.

The decision has meant that employers have had be more careful than ever not penalise an ex-employee who is bringing proceedings against them under the Equality Act.

Typically, this would involve the employer refusing to provide a reference, or providing a poor reference, to an employee on the basis of a potential tribunal claim.

2. Associative discrimination: no duty to make reasonable adjustments

Hainsworth v Ministry of Defence (Court of Appeal, 13 May 2014)

It is widely accepted that employers can be liable under the Equality Act 2010 for “associative discrimination” (aka “discrimination by association”). This is discrimination against an individual because of an association with someone who has a protected characteristic, such as an employee’s disabled child.

The nine protected characteristics

• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Religion or belief
• Sexual orientation

What was less clear was whether or not the concept extends to an employer’s duty to make reasonable adjustments for disabled people, or is limited to instances of direct discrimination and harassment.

The Court of Appeal made clear that, while the duty on employers to make reasonable adjustments for disabled employees and job applicants is wide, it does not extend to non-disabled staff and potential recruits.

This means that the reasonable adjustments provisions do not place any extra burden on employers when dealing with an employee’s flexible working arrangements purely on the basis that the employee’s child is disabled.

3. Negative verbal reference and job offer withdrawal were discriminatory

Pnaiser v NHS England and another (Employment Appeal Tribunal (EAT), 4 December 2015)

In the last decade, “discrimination arising from disability” has been a key battleground in equality cases.

The Equality Act 2010 makes it unlawful for an employer to treat an individual unfavourably because of something “arising in consequence of” a disability. An employer can successfully defend a claim if it can justify the treatment as a proportionate means of achieving a legitimate aim.

As this case demonstrates, giving negative verbal references because of a former employee’s disability-related absence may amount to discrimination arising from disability. So too can the subsequent withdrawal of a job offer by a prospective employer.

Here, the employee’s disability meant that she had a number of lengthy absences and regularly needed to work at home. The EAT held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.

4. Discounting triggers in attendance policy not reasonable adjustment

Griffiths v Secretary of State for Work and Pensions (Court of Appeal, 10 December 2015)

Disability discrimination FAQs

Is obesity a disability?

Is dyslexia a disability?

Could employee who is refused time off to care for disabled dependant bring claim?

Can employer use its absence management procedure for employee who has been absent due to disability?

This is an important decision because it establishes that the duty to make reasonable adjustments under the Equality Act 2010 is likely to be engaged in any case in which a disabled employee has disability-related absences that trigger the application of an attendance policy.

Here, the Court of Appeal held that it would not to be reasonable for the employer to disregard 62 days of disability-related absence and extend the trigger point under its attendance policy.

The Court of Appeal emphasised that, while an employer may not be required to make adjustments to an absence management procedure, a dismissal could constitute discrimination arising from disability if dismissal was not a proportionate response in all the circumstances.

5. Immigration status does not equate to nationality

Onu v Akwiwu and another; Taiwo v Olaigbe and another (Supreme Court, 22 June 2016)

Modern slavery

Example modern slavery statement

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The Supreme Court held that the mistreatment of migrant workers on the basis of their immigration status did not amount to direct race discrimination.

In other words, the Supreme Court accepted that an individual’s “immigration status” is not necessarily equated with their “nationality” under the Equality Act 2010.

The alleged mistreatment included taking the migrant workers’ passports from them on arrival in the UK and requiring them to work very long hours for little pay.

While the outcome was harsh for these claimants, it is important to remember that the focus in this case was direct discrimination. On the right facts, claims for indirect direct discrimination and harassment might succeed.

In 2021, this controversial decision could take on great significance if employers find themselves having to dismiss workers who lose the right to work in the UK because of Brexit.

6. Long-term sick leave dismissals: guidance on borderline cases

O’Brien v Bolton St Catherine’s Academy (Court of Appeal, 15 March 2017)

In this case involving a teacher who was off sick for more than a year, the Court of Appeal provided guidance on when employers can dismiss an employee on long-term sick leave. The decision is particularly valuable for HR professionals faced with employees on long-term sick leave whose diagnosis and timeframe for recovery are uncertain.

The Court made it clear that employers are not expected to wait forever for an employee to recover from illness, and dismissal is a valid possibility even where there is a vague promise from an employee of an imminent return.

However, the Court went on warn employers that, when balancing whether the time has come to dismiss, the employer needs to have considered the disruption to the business that the absence is causing.

7. Indirect discrimination: no need to explain why claimant disadvantaged

Essop and others v Home Office (UK Border Agency) (Supreme Court, 5 April 2017)

In Essop , and its companion case Naeem v Secretary of State for Justice , the Supreme Court removed some of the barriers that have built up for claimants bringing indirect discrimination claims.

In particular, the cases remove the requirement to show a tribunal why a neutral policy or rule puts the affected group at a disadvantage.

The practical effect for employers is that employment tribunals are able to move more swiftly to the issue of justification, which should be at the forefront of HR professionals’ minds when creating or reviewing workplace policies and rules.

Employers can still defeat claims of indirect discrimination if they can show that the policy or rule is justified, and that it is a proportionate means of achieving a legitimate aim.

8. Employment tribunal fees system discriminatory

WR (on the application of Unison) v Lord Chancellor (Supreme Court, 26 July 2017)

The Equality Act 2010 was invoked in this landmark victory for trade union Unison against the Government’s employment tribunal fees regime.

The Supreme Court agreed wholeheartedly with Unison’s arguments that paying up to £1,200 to bring a claim against an employer was a serious impediment to access to justice.

The Government was forced to cease employment tribunal fees immediately after the judgment and introduce a repayment scheme for claimants who paid fees.

9. Equal pay: shop workers could compare themselves with warehouse staff

How to carry out an equal pay audit Podcast: Equal pay

Asda Stores Ltd v Brierley and others (Court of Appeal, 31 January 2019)

In recent years, court battles for equal pay have moved from the public sector towards the private sector. While there is a long way to go in these cases, this Court of Appeal ruling was an important landmark.

Thousands of shop workers, mostly female, claimed that they have historically been paid less for work of equal value to the work undertaken by their predominantly male colleagues working at depots as part of Asda’s distribution operation.

Here, the preliminary issue was whether or not the shop workers were able to compare their pay with the pay of workers at the depots. The Court of Appeal had little doubt that workers in Asda supermarkets were entitled to compare their pay with the pay of depot workers because common terms of employment apply.

10. No sex discrimination where shared parental pay not enhanced

Capita Customer Management Ltd v Ali; Hextall v Chief Constable of Leicestershire Police (Court of Appeal, 24 May 2019)

The common consensus is that one of the main reasons that shared parental leave has not been more popular is that employers that enhance maternity pay are not legally obliged to enhance shared parental pay.

Shared parental leave

Shared parental leave policy (birth)

Shared parental leave policy (adoption)

In these two cases heard together in the Court of Appeal, male workers claimed that their employers discriminated against them because of their sex by denying them the opportunity to take shared parental leave on full pay. The employers in both cases enhanced pay during maternity leave, but not during shared parental leave.

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The Court of Appeal rejected their claims, reducing the risk of sex discrimination or equal pay claims by male employees against employers that operate a policy of enhancing maternity pay but paying shared parental leave at the statutory minimum. relx_copyright – This article is Brightmine content – Copyright 2024 LexisNexis Risk Solutions

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Stephen Simpson is Principal HR Strategy and Practice Editor at Brightmine. His areas of responsibility include the policies and documents and law reports. After obtaining a law degree and training to be a solicitor, he moved into publishing, initially with Butterworths. He joined Brightmine in its early days in 2001.

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Case Study: Gender Equality, Anti-Discrimination at Tokyo 2020

Author - Centre for Sport and Human Rights

The Tokyo 2020 Summer Olympic and Paralympic Games, postponed by one year due to the Covid-19 pandemic, took place in a highly unique context and served as an opportunity to bring people back together. In its 2016 Action and Legacy Plan , the Tokyo Organising Committee of the Olympic and Paralympic Games (TOCOG) highlighted “Achieving Personal Best, Unity in Diversity and Connecting to Tomorrow” as its main legacy objectives. This legacy plan highlighted five pillars to achieve this goal. The Centre for Sport and Human Rights collaborated with TOCOG specifically on the “Unity in Diversity” aspect, and supporting TOCOG who wanted to embody diversity and inclusion (D&I), and ensure that nobody would experience discrimination throughout the preparation and operation of the Games.

Like many countries, Japan has long had a paternalistic culture creating gender equality issues and sexism. While preparing to host the Games, Japan recognised that this culture needed to change – for example, despite business and human rights being a relatively new topic in Japan, TOCOG was determined to leave a legacy based on human rights setting ‘human rights, labour and fair business practices’ as one of the key priorities in its pre-Games Sustainability Report .

The Centre supported TOCOG in two key ways toward realising this objective – the first was in providing access to a network of D&I experts and reviewing guidelines and training materials that were being developed. The second was offering support on further promoting gender equality.

Focus on Anti-Discrimination :

D&I was a relatively new topic in Japan, which is why TOCOG decided to use the opportunity of the Games to shine a spotlight on anti-discrimination and D&I efforts. Before the Games, workshops were organised for volunteers to train them on guidelines around anti-discrimination, including outlining scenarios of what could happen, how to react and how to respond to the situation and questions related to it. The Operational Readiness Program provided information on all the different venues, including information from test events and each department was required to be aware of the guidelines and how to implement them. This Program helped identify football for example as a higher risk sport regarding discrimination, which meant special training for the venue, sports team, staff, and others. Different training was offered to staff (who followed all guidelines) and volunteers (who were given general training and additional training depending on the venue)

The Centre supported TOCOG in its anti-discrimination efforts by first providing a briefing to TOCOG on the human rights that could be infringed upon by discriminatory practices, as well as good examples from other sport federations to give an idea on how to respond. The Centre also connected TOCOG with corporate partners who had a long history of implementing anti-discrimination within their workplaces. These corporates shared materials they used to train staff. Finally, the Centre connected TOCOG with other sport federations, as well as the FARE Network – international experts in anti-discrimination in sport. Together, they were able to identify a list of potentially offensive banners, flags and phrases that volunteers should look out for during the event. One example of where this training was used was during the Games, there was an incident with a spectator waving a “Rising Sun” flag (seen as a symbol of Japanese militarism and colonialism during World War II, and therefore considered discriminatory by affected populations). Security was able to talk to the spectator in question and after understanding the situation, put away the flag. This was a good example of a calm, appropriate response to a potentially defamatory situation. Whilst many of the potential benefits were denied by the lack of spectators, a lasting legacy was still realised by those who received the training.

Focus on Gender Equality :

In February 2021, just a few months before the start of the Games, then President of TOCOG Yoshiro Mori caused chaos in Japanese society by making a sexist comment which had a huge impact on the media, young Japanese people, and the public who called for it to be an opportunity to change Japanese culture. TOCOG itself recognised in its post-Games inclusion case study that they had work to do on gender, noting that the country had ranked 101 out of 135 on WEF’s Gender Gap Index. Following this scandal, a female president was put in place at TOCOG, alongside female Directors who were added to the Board. Whilst there was criticism from some NGOs that these posts were simply for show, it still sent a strong message to Japanese society. This was complemented with several programmes put in place by TOCOG to accelerate gender equality. Some positive examples include:

• TOCOG established a Gender Equality Promotion Team.
• The Tokyo Games were the most gender-balanced in history with 48% of all athletes competing in the Olympics being female and 42% in the Paralympics
• The Tokyo Games were also the first that insisted on having both a male and female flag bearer for each country
• TOCOG ensured the prohibition of photography taken that could lead to sexual harassment and requested gender-equal and fair reporting of all athletes.

The Centre also provided a briefing to TOCOG suggesting ways in which it could capitalise on the opportunity to use these Games as an opportunity to advance gender equality in Japan and the wider region.

• athletes competing in the Olympics being female : 48%
• athletes competing in the Paralympics being female : 42%

Key Takeaways :

• Despite the success of the Games, Covid-19 limited the opportunities to present the accomplishments and the preparations made ahead of the Games in order to build a society where unity in diversity and inclusion are part of the reality.
• Collaboration and open management were emphasised by organisers as a key point and the Centre for Sport and Human Rights (CSHR) was recognised as a constructive partner introducing TOCOG to organisations like FIFA, FARE, and others.
• It was also emphasised that every host has its own culture and needs to adapt to different elements of the Games.
• Throughout the preparation and the delivery of the Games, communication was one of the most powerful elements of it – it was necessary at every interface, including with the stakeholders.
• Finally, it is important to recognise that one can never get everything right, but organisers can share mistakes and lessons with partners to continue to grow

Related Articles

The Impact of a Sport Mega Event in the Right to Access Public Education: The Case of the Porto Alegre Communities Affected by the 2014 Brazil World Cup

Sport Ecosystem Responses to the Invasion of Ukraine

Case Study: Tokyo 2020 Pro Bono Legal Mechanism

Case Study: Managing Acts of Discrimination and Activism at Mega-Sporting Events

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Unlawful discrimination examples

1.1 disability, direct discrimination.

Example 1 A school finds out that a pupil has been diagnosed as autistic and immediately excludes him from the school play as they suspect he will ‘not be able to cope’ . This is likely to be unlawful direct disability discrimination.

Example 2 A school plans a trip to a natural history museum. A pupil with Down’s syndrome is excluded from the trip as the school believes she will not be able to participate in the activities provided by the museum for school groups. This is likely to be unlawful direct disability discrimination.

Example 3 The admissions tutor for an independent school interviews an applicant who has cerebral palsy which makes her speech unclear. The tutor assumes that the applicant also has learning difficulties and refuses to admit her as he thinks she will be unable to cope with the highly academic environment of the school. This is likely to be unlawful discrimination arising from disability.

Indirect discrimination

Example 1 A pupil with cerebral palsy who is a wheelchair user is told she will be unable to attend a school trip to a local theatre putting on a production of a play she is currently studying in English, because the building is not wheelchair accessible. The pupil and her parents are aware that the play is also on at a theatre in a neighbouring city which is accessible but the school does not investigate this option. This is likely to be direct discrimination because of a disability.

Examples of failure to make reasonable adjustments

• A deaf pupil who lip-reads is at a substantial disadvantage because teachers continue speaking while facing away from him to write on the board.
• A pupil with dyslexia is told she cannot have her teacher’s lesson notes, and that she should take notes during lessons 'like everyone else'.

Read more information on disability discrimination .

A mixed sex school attempts to maintain a gender balance in the school by admitting one sex and not another when places are limited. This is likely to be direct sex discrimination and to be unlawful.

Indirect sex discrimination

A school provides a work placement in joinery with a local firm. The school states that it is necessary for any applicant for this course to have taken woodwork at the school as an option in their design and technology course. There is a significant under-representation of girls on both the design and technology course and the woodworking option within that, so this could be considered indirect sex discrimination as it will put girls at a particular disadvantage. In the same school, if pupils want to undertake a work placement in fashion and fabric design, and it is not necessary for them to have undertaken the textiles option in design and technology, this could be a valid comparator to demonstrate indirect sex discrimination..

Read more information on gender discrimination .

Direct discrimination example

After a fight in the school playground between Asian and White pupils, an independent school limits the time the Asian pupils involved in the fight can spend in the playground during lunch hour but does not impose a similar restriction on the White pupils. If ethnicity is one of the causes of the disadvantageous treatment of this group of pupils, this is likely to be direct racial discrimination.

Indirect discrimination example

A school bans 'cornrow' hairstyles as part of its policies on pupil appearances. These hairstyles are more likely to be adopted by specific racial groups. Hence a blanket ban is likely to constitute indirect discrimination because of race as it is unlikely to be objectively justified and proportionate. The criteria although indirectly discriminatory are very close to direct discrimination, in particular if it only applies to a small group of individuals.

A pupil from an Irish Traveller background overhears a teacher on a number of occasions making racial slurs about gypsies and travellers stating their site should be shut down and they were ‘trouble’. This is likely to be harassment related to the protected characteristic of race.

Read more information on racial discrimination .

1.4 Religion or belief

Example 1 A Muslim pupil asks for some flexibility in the school timetable to fit in with his religious commitments linked to the month of Ramadan. He asks not to have to participate in physical education classes held in the afternoon during the month of Ramadan when he will be fasting. This request is denied and he is required to attend PE classes in the afternoon. Another pupil requests some flexibility in the timetable to fit in with his confirmation classes at his church. He is permitted to leave class half an hour early on Fridays. This is likely to be unlawful direct discrimination against the first pupil because of religion or belief.

Example 2 A Catholic school excludes a pupil who has turned away from the Catholic faith and declared himself an atheist. This is likely to be unlawful direct discrimination because of religion or belief.

Example 1 A school requires male pupils to wear a cap as part of the school uniform. Although this requirement is applied equally to all pupils, it has the effect of excluding Sikh boys whose religion requires them to wear a turban. This is likely to be indirect discrimination because of religion and belief as it is unlikely that the school would be able to justify this action.

Example 2 A school instigates a policy that no jewellery should be worn. A young woman of the Sikh religion is asked to remove her Kara bangle in line with this policy, although the young woman explains that she is required by her religion to wear the bangle. This could be unlawful indirect discrimination on the grounds of religion and belief.

Read more information on discrimination against religion and belief .

1.5 Sexual orientation

Example 1 During a PSHE (personal, social, health and economic education) lesson, a teacher describes homosexuality as 'unnatural' and 'depraved' and states he will only be covering heterosexual relationships in the lesson. A bisexual pupil in the class is upset and offended by these comments. As harassment doesn’t apply to the protected characteristic of sexual orientation in schools, this is likely to be unlawful direct discrimination because of sexual orientation.

Example 2 A pupil who is gay is offered a place at an independent school on the condition that he hides his sexual orientation and pretends that he is straight (heterosexual). This is likely to be unlawful direct discrimination because of sexual orientation.

Example 3 A sixth form pupil is bullied for being bisexual and although he reports the bullying to a teacher no action is taken as the teacher believes that it is just a bit of banter and he deserves 'some teasing' if he is going to say he is bisexual. This is likely to be unlawful direct discrimination because of sexual orientation, rather than harassment.

Read more information on discrimination against sexual orientation .

1.6 Transgender

A pupil undergoing gender reassignment is told she will not be able to attend the school camp because they do not have any suitable toilet facilities. This is likely to be less favourable treatment because of gender reassignment, which would constitute direct discrimination.

Read more information on discrimination against transgender .

2. Equality success stories

Case 1 - pregnancy.

Pregnant women in the armed forces will be given greater protection from discrimination after a ruling by the Employment Tribunal in 2010. The Equality and Human Rights Commission funded the case brought by a female officer against the Royal Air Force in which she claimed she was removed from her job and had her promotion prospects delayed because she was pregnant.

A law firm represented the officer, who was on a posting in the Falkland Islands when she informed her superiors that she was 12 weeks pregnant. Her request to stay on in her desk-based job was denied, despite her husband, who was also a RAF officer, being based on the Island and she was ordered to return to the UK immediately.

As she wanted to be with her husband during her pregnancy she was forced to take leave to return to the Falkland Islands. This meant she missed out on a performance review which delayed her promotion prospects.

The Tribunal found that the officer had been discriminated against because of pregnancy and awarded her more than £16,000. The Tribunal also recommended that the Ministry of Defence:

• carry out an individual risk assessment for each pregnant woman and consider adjusting their role to enable them to remain in their post,
• establish a monitoring process in respect of any removal of a pregnant woman from her post; and
• undertake a performance appraisal for each pregnant woman commencing maternity leave.

Case 2 - sex

In 2010, more than 4,000 female council workers have won the right to be paid the same as their male colleagues in a case which could lead to payouts worth about £200m.

An employment tribunal found in favour of female workers employed by Birmingham city council in 49 different jobs, including lollipop ladies and cleaners, who complained of being excluded from bonuses – worth up to 160% of their basic pay – paid to men.

All the women were employed in traditionally female-dominated roles, such as cleaning, care and catering, as well as administrative jobs. During the seven-week hearing, the tribunal heard how a man doing the same pay-graded job as a woman could earn four times more than her.

Under a bonus scheme, male refuse collection staff sometimes received up to 160% of their basic pay. In one year a refuse collector took home £51,000, while women on the same pay grade received less than £12,000.

Unions described the women's victory as a 'major' case which could encourage other female public sector workers to bring similar claims.

Case 3 - religion and belief

In 2008 a Muslim girl was awarded £4,000 after the owner of a hair salon refused to employ her because she wears a headscarf.

Bushra Noah, 19, who was rejected for 25 hairdressing jobs, had accused Sarah Desrosiers of discrimination after she failed to offer her a position in May last year. Ms Desrosiers, 32, said she needed staff to display their hairstyles to customers at the Wedge salon in King’s Cross, North London.

Mrs Noah, of Acton, West London, applied for a job as a junior assistant. When she arrived at the salon she claimed that the owner was shocked that she wore a headscarf. Ms Desrosiers told the court she was surprised that Mrs Noah had not mentioned it. She said she needed stylists to reflect the 'funky, urban' image of her salon.

The panel found that Mrs Noah had been badly upset by the 15-minute interview and awarded her £4,000 damages for 'injury to feelings'.

Case 4 - sexual orientation

In 2010 a gay couple won their discrimination claim against the owners of a hotel in a landmark judgment in the Bristol County Court in a case which was funded by the Equality and Human Rights Commission.

The judge's ruling in one of the first legal cases taken under the Equality Act (Sexual Orientation) Regulations 2007 means that people in civil partnerships will have greater protection from discrimination.

Civil partners Martyn Hall and Steve Preddy sued the owners of the Chymorvah Private Hotel in Cornwall on the grounds they were not allowed to share a double room because they were a gay couple.

The hotel owners, Peter and Hazel Bull, are devout Christians who do not allow couples who are not married to share double rooms because they do not believe in sex before marriage. Mr. and Mrs. Bull maintained that their refusal to accommodate civil partners in a double room was not to do with sexual orientation but 'everything to do with sex'. The owners said the restriction applied equally to heterosexual couples who are not married.

Judge Rutherford ruled that the hotel had directly discriminated against the couple on the ground of their sexual orientation and awarded them compensation of £1,800 each.

Case 5 - age

In 2011, former BBC presenter Miriam O’Reilly won her age discrimination case against the BBC after she was dropped from BBC1's rural affairs show, Countryfile.

O'Reilly, 53, took the BBC to court claiming discrimination after she was one of four female presenters, all in their 40s or 50s, who were dropped from the 23-year-old show. O'Reilly was dropped from the show, along with Charlotte Smith, Juliet Morris and Michaela Strachan, when it was moved from Sunday mornings to a new peak-time slot in April 2009.

The BBC said it chose new 'second tier' presenters for Countryfile over O'Reilly because they had 'substantial network profile that might attract primetime audience' - but the court ruled that this was not the case. 'We consider age to be a significant factor in the decision not to consider O’Reilly.'

In the course of her evidence to the court O'Reilly claimed a Countryfile director had warned her 'to be careful with those wrinkles when high definition comes in' nine months before she was axed.

The tribunal said: 'The wish to appeal to a prime-time audience, including younger viewers, is a legitimate aim. However, we do not accept that it has been established that choosing younger presenters is required to appeal to such an audience,' the judgment stated.

The presenter, who received compensation from the BBC as a result of this verdict, told MediaGuardian.co.uk: 'Words cannot describe how happy I feel. It's historic and it's going to have huge implications for all broadcasters.'

In light of the court’s ruling, the BBC said it would give additional training to senior editorial executives and issue new guidance on the fair selection of presenters.

3. Positive action example

For more information about positive action, refer to  the Commission's guidance .

Tackling underachievement among ethnic minority boys

A London school experienced issues with under achievement and behaviour among some ethnic minority pupils, particularly boys. It was felt that this was fuelled by issues around deprivation, low expectations within families about schooling and English as a second language.

To take corrective action, the school worked with a charity to develop a project that would improve behaviour, raise aspiration and facilitate a more positive attitude to learning. For one day every two weeks, the boys visited the charity to work with youth workers, who got them involved in positive activities, such as using role-play to resolve conflict, producing plans for their futures and looking at barriers to success and ways in which to overcome these.

Pupils benefited from two terms of work and the evaluation showed that the students attendance to school, academic performance, behaviour and progression all improved.

4. Public sector equality duty examples

For more information about the public sector equality duty, refer to  the Commission's guidance .

Raising participation / tackling gender stereotyping in sports, both within the curriculum and in out-of-school activities

An Academy in North East England, with mixed sex students, decided that it needed to take action on extremely low levels of participation in sports by female pupils. They also recognised that gender stereotyping in sport for all pupils needed to be tackled. At this time they offered a very limited and 'traditional' sports curriculum and there was a culture of separating male and female pupils for teaching.

The school put together a new equality plan for how they could tackle the issues and this was sent to all stakeholders for input, including school governors, parents, the police and other external agencies.

The equality plan involved:

• Developing a partnership with a local sports college to help tackle the problem of an under-resourced PE department and to conduct a review of the PE curriculum and extra-curricular activities provided.
• Offering an enhanced range and quality of PE and sports provision, including a fitness gym, dance, out of school mountain biking etc.
• Ensuring equality of opportunity for all pupils by making all activities open to female and male pupils.

The schools work on tackling inequality in sports had a significant impact across the school, on both male and female pupils. There was a marked increase in female participation in sport, both in and out of school. There was also a knock on effect on other types of outcomes for all pupils e.g. alertness, concentration, confidence and self-esteem.

Developing a disability equality scheme in a secondary school helps staff and students address discrimination across all strands

In developing its disability equality scheme, Framwellgate (secondary) School in Durham set up a disability equality group drawn from pupils, governors, parents, as well as teaching, support and administrative staff. The majority of group members have a disability or care for a disabled child. The group’s first step was to review school policies. A good amount of time was allocated for this process to enable wide engagement and involvement. Text could also be prepared which was jargon free and pupil friendly. The pupil representatives got feedback from fellow pupils by holding focus groups. By taking enough time, the school felt that it gained a much better understanding of its duties and responsibilities as well as a more thorough appreciation of disability and its impact on pupils, parents and staff.

After this initial review work, the group felt able to develop its action plan and disability equality scheme. This now has wide ownership across the school and is integrated into the business of the organisation. A significant outcome has been the development and self-confidence of the student members. They were treated as equal members of the group and they received formal notice and minutes of meetings, were able to attend meetings in lesson times, and were invited to chair meetings. This has hugely increased the confidence and involvement of the pupils. The pupils have:

• successfully bid to the governors for money to implement the action plan
• developed and presented a fully-costed business plan to the group and amended these plans following their own risk assessment
• evaluated and bought products for the school (disability awareness posters) having negotiated with staff for their display in the achievement centre and the library
• secured funds from the school business manager for refurbishment of the peer support meeting room.

When the time came to review the scheme, the group decided to widen the terms of reference to include gender and race issues, as well as other issues such as homophobic bullying.

5. Reasonable adjustment duty examples

Use of technology to enable college to support disabled students.

Stanmore College installed accessible software on all of their computers to assist disabled students. They provided students with Alphasmart word processors which have proved to be very useful with dyslexic students for taking notes. The College developed a more effective means of recording illness such as cancer / diabetes and epilepsy as well as severe allergies so that students can be properly supported both in class and during examinations.

All students who have disclosed a disability or an illness are risk assessed. The new Health and Safety Policy and Procedure also ensure that students are well supported if an emergency arises.

Last updated: 16 May 2016