What makes something qualify as indirect unlawful discrimination versus simply being lawful practice?

Question

Imagine that Nike makes a particular model/style of trainer, for example, called the Nike Jordan 4128s, which come in a men's and women's version respectively. They both normally retail for £200, but a shop, either Nike itself or a secondary retailer, decide to run a promotion on the women's version, so that they sell it, temporarily, for £150. No customer is prohibited from buying either version based on their sex or gender, but needless to say this price regime will disproportionately affect male purchasers from the business over female ones.

Is this unlawfully discriminatory on the basis of customers' sex?

Of course the thinking here is that it may be indirect discrimination, but what could cause it to qualify or not qualify as indirect discrimination even though it is presumably not done for misandrous motivations?

Possible starting points for research that survey the case law fleshing out this concept of legitimate aims, and the “costs plus” principle:

• https://www.stammeringlaw.org.uk/disability-equality-law/discrimination/discrimination-arising-from-disability/justification/#cost
• https://www.michelmores.com/news-views/news/age-discrimination-and-proportionate-means-achieving-legitimate-aim

Answer 1

Part 3 of the Equality Act is the Part that applies to the provision of services to the public, which includes "the provision of goods." This Part prohibits service providers from discriminating as to the terms on which a provider provides the goods to the customer.

Indirect discrimination is defined at Section 19 of the Equality Act 2010. It establishes that indirect discrimination is a form of discrimination:

19 Indirect Discrimination

(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—

• (a) A applies, or would apply, it to persons with whom B does not share the characteristic,

• (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

• (c) it puts, or would put, B at that disadvantage, and

• (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are—

• age;

• disability;

• gender reassignment;

• marriage and civil partnership;

• race;

• religion or belief;

• sex;

• sexual orientation.

In characterizing the "practice" that is being applied, the Court of Appeal has said this word is not a term of art and is not to be construed narrowly or in a limited way (see Ishola v Transport for London, [2020] EWCA Civ 112). A fair way to characterize the "practice" being applied in this circumstance is that the store is "selling Nike Jordan 4128s (women's) at £150 and Nike Jordan 4128s (men's) at £200." (If instead the "pratice" were characterized more narrowly—selling Nike Jordan 4128s (women's) at £150—then the analysis would not even get past 19(2)(b). Likewise, if the "practice" were characterized more broadly—selling both the women's and men's versions at a discount from time to time, not necessarily at the same time—then the analysis will also have difficulty getting past 19(2)(b).)

The question is whether the application of this practice indirectly discriminates against "male purchasers."

19(2)(a): does the Nike store apply this practice to male and non-male purchasers?

Yes. (This is why we're in an indirect discrimination analysis rather than direct discrimination.)

19(2)(b): does this practice put male purchasers at a disadvantage?

Depending on evidence showing that male purchasers are more likely to want to purchase the Nike Jordan 4128s (men's), then yes. (I could also see a tribunal cutting the analysis off at this stage, depending on how much weight they place on choice. I know that Canada avoids inquiring into the "source" of the disadvantage or blaming it on an individual's choice, but I have no idea what the approach in the U.K. is to this aspect.)

19(2)(c): would this practice put a particular male claimant at that disadvantage?

Depending on evidence showing that the particular claimant wants to purchase the Nike Jordan 4128s (men's), then yes.

19(2)(d): is it the case that the Nike store cannot show the practice to be a proportionate means of achieving a legitimate aim?

My prediction is that the store would be able to justify the practice as a proportionate means of achieving a legitimate aim.

One example of a legitimate aim: a charging policy at swimming pools that disproportionately affected "disabled swimmers" was found to be a proportionate means of achieving a legitimate aim, being part of "an overall financial structure which covers the provision of a wide range of public services" (https://www.bailii.org/ew/cases/EWHC/Admin/2022/1588.html)

Other examples of legitimate aims: "running an efficient service," "requirements of a business," "desire to make a profit." However,

Economic reasons alone are not enough to justify discrimination. Someone can’t justify discrimination by saying it’s cheaper to discriminate. But costs can be taken into account as part of the justification if the person can show there are other good enough reasons for the treatment.

So, depending on the business rationale, and the proportionality of the discount compared to the business need (e.g. cost of holding extra stock, risk of failing to sell stock as a new model comes in, etc.), the price differential could be a proportionate means of achieving a legitimate aim. This will depend on the evidence. I predict most stores would be able to justify a modest and occasional price differential, even in the case that the production costs of each shoe are identical.

Summary

I see four ways through this analysis, each leading to the conclusion that this would not be indirect discrimination:

• a narrow characterization of the "practice" as simply selling the women's version at £150 (probably too narrow of a view)
• a broad characterization of the "practice" as selling all versions at a discount from time to time, albeit not necessarily at the exact same time
• a view that any disadvantage experienced by men is due to their choice not the price discrepancy (dubious)
• the price discrepancy is a proportionate means to achieve a legitimate aim (admittedly, a thin analysis requiring more research)

Answer 2

It certainly can be lawful. You, by all means, are allowed to buy either pair, the female or male one. If there is a rationale why they differ in prices (higher production, storage or shipping costs because of heavier, bulkier and more material-needing, pricier manufacture products) in reasonable proportion with the difference (not like male cost to sell £37, female £33, msrp £200, and msrp £100 respectively) would likely fail this test before a half decent tribunal. But if its an outgoing model, they try to swipe the stock, then clearly, the rationale is not related to sex or gender hence such discrimination could not reasonably be argued under any legal theory.

So, it would likely be generally lawful, and unlawful in the exception. Predominantly, businesses are in business to make business, and not to make political statements (unless that affects their business) otherwise they would go out of business. And this is a good general starting point to determine who has the onus.

To put a situation like this to a test, maybe garment is a better example where confection of substantially identical quality and substantially similar volume is used with other factors (production complexity, cost etc.) are similar, i.e. premium underwear and the prices between male and female counterparts are apart on multiple scales.

There, the decision to part prices based on gender, may flow more naturally from something inherent to the sex and gender of the two groups, but — then again — there may be substantially greater competitive pressure on some top brands of women’s lingerie then among male underwear brands which is a legitimate reason to lower their profit margin in the female lingerie and not the male counterparts to stay alive and turn a reasonable profit. But in that case, the price difference flows from market dynamics, and merely indirectly and not proximately or any fashion recognizable under the law as imposing liability for reasons of sexual discrimination.

On another note, while it’s completely possible that a misogynist (and perhaps also not completely impossible that a misandrist) or a group of them runs a shoe company for both sex to exert their sexist agenda, but this seems like a means that would both hurt them more, would probably not be recognized by the alluded target group as the expression of this group hate, but it is rather implausible and facially asinine. (You could lose or waste your money in more efficient ways to expose yourself to lawsuits that are easily understood as sexist declarations, no need to do it covertly hidden in price differences and relative profit margins) Anyone trying to sue on this basis would have an uphill battle to have a case that even reaches discovery to see any pattern to establish a believable motive of sexual discrimination.

UPDATE (interim):

Although secondary legislative material, but Citizens’ Advice requires, among others, that “the person [or entity] applying [a] policy, practice or rule [of indirect discrimination not be able to] show there’s a good enough reason for it”, and thereby engaging in discrimination of a protected group.

It’s questionable that discrimination exists at all where any sex is permitted to buy the male and female shoes, but if there was, there are plenty of “good enough reason” merely flowing from market dynamics substantiating “good enough reason” for, for the sake of the argument, “discrimination”.