Pregnancy and Sex Discrimination

SIMON HONEYBALL*

ABSTRACT
In the absence of specific protection against pregnancy discrimination, the sex discrimination head of claim has been widely used, although perhaps not the marital status
ground to its full potential. However, the difficulties in so doing have become clearer in
a number of recent cases, such as Dekker, Webb, James and Gillespie. Although the
attractions in seeing it as direct sex discrimination have received recognition by the
courts, there is still support (eg from Robert Wintemute in an earlier issue of this
journal) for the idea that pregnancy discrimination is best viewed as a form of indirect
sex discrimination. Nevertheless, Wintemutes argument remains unconvincing. The
disadvantages in this approach, both on a conceptual and a practical level, remain. The
alternative, however, that pregnancy discrimination is non-comparative direct sex discrimination is also unsatisfactory (but for different reasons than Wintemute gives) as
comparison is a necessary element of any discrimination claim. The comparative element
need not be abandoned because it is not necessary to look to male norms to retain it,
and it is consistent with a but-for approach. (However, this requires a new form of
comparison, namely self-comparison.) It is not necessary, because pregnancy discrimination is not sex discrimination at all. Neither is it always discrimination against the
pregnant woman, but sometimes justified discrimination in her favour. Anti-discrimination law is thus inappropriate in this context. Therefore the law should recognise
defensive pregnancy discrimination claims as a separate head of discrimination law, and
positive rights as a complementary rather than alternative system outside the antidiscrimination legislative scheme.

1. INTRODUCTION

t has long been a problem in discrimination law as to whether discrimination

on the grounds of pregnancy is a form of sex discrimination. The reasons why it
has been attractive to argue that it is fall into two basic categories, the one
conceptual and the other practical and defensive. First, there are prima facie
good conceptual reasons for treating pregnancy claims as sex discrimination.
*
School of Law, University of Exeter. I would like to thank Robert Wintemute and the Editor
for their helpful comments on an earlier draft of this article. However, I alone am responsible for
the views expressed here.

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Pregnancy is not just something that is peculiar to women, creating a biologically

unbreakable and exclusive link between it and one sex, but also there is a
widespread understanding, or at least perception, that women are at their most
female when they are pregnant.1 This is, or should be, a controversial view,
because it seems to denigrate women who are not pregnant, and especially
those who can never bear children, as well as attacking the femaleness of older
women beyond the menopause. Nevertheless, it is a sincere and well-respected
view which needs to be considered seriously. But as well as having prima facie
attractions, this view also has immediately discernible difficulties, both on the
conceptual level and with regard to the framework of the existing legislative
protection.
The second category of reasons is that it was not thought necessary when the
original anti-discrimination legislation was introduced to create pregnancy
discrimination as a separate head of claim. It is thus essential to bring such
claims under an existing statutory provision. An obvious candidate is the marital
status head of sex discrimination in the Sex Discrimination Act 1975. It is
clearly possible to do this in many cases as a higher proportion of married
people become pregnant than unmarried persons, thus providing a foundation
for an indirect discrimination claim. Perhaps surprisingly, nevertheless, this form
of claim does not have a high profile and one may wonder whether the
possibility is explored to the full in practice. For whatever reason the reported
cases have been concerned primarily with the situation where women have
attempted to bring their claims under the sex (gender) discrimination head. It
might be thought that to bring pregnancy within another ground of claim has
something to commend it in that women are very rarely discriminated against
because they are pregnant per se. It is usually something associated with the
pregnancy that gives rise to the adverse treatment, such as absence from work
or reduced working capacity. However, these are not sex grounds. Neither is it
at all obvious that the same could not be said of sex (gender) discrimination in
general to the same degreeit is normally something associated with the sex of
a person rather than the sex itself that gives rise to the discriminatory treatment.

2. PREGNANCY DISCRIMINATION AS INDIRECT DISCRIMINATION

For these reasons, it may be thought suitable to treat some cases of pregnancy
discrimination as indirect sex discrimination. Robert Wintemute, in a highly
stimulating recent article in this journal,2 has done just this. He does so for a
1
See Wintemute, When is Pregnancy Discrimination Indirect Sex Discrimination?, (1998) 27
ILJ 23 at 24 (hereafter Wintemute).
2
See n 1 above.

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number of reasons. Firstly, he believes that whilst some pregnancy cases are
rightly seen as examples of direct sex discrimination, some cases are better seen
as involving indirect discrimination. This is so particularly where it is needsbased, for example where the employer treats the woman in a particular way
not directly because of her pregnancy but because of some requirement he has
associated with it, such as availability for work. In this case, the employer
requires this of both men and women, but the effect on women is greater than
that of men. Secondly, he believes that some of the decisions of the European
Court of Justice (the ECJ) in this area make more sense if this approach is
taken. He includes within this list Webb v EMO Air Cargo (UK) Ltd,3 Handelsog Kontorfunktionaerernes Forbund i Danmark (acting for Hertz) v Dansk
Arbejdsgiverforening,4 Gillespie v Northern Health and Social Services Board5
and Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus.6 Need-base discrimination may be either direct or indirect, Wintemute acknowledges, but where it involves neutral treatment resulting in a
disproportionate impact rather than an exclusive impact, the discrimination will
be indirect.7
However, be this as it may, there are a number of difficulties which can be
identified in seeing pregnancy discrimination as indirect sex discrimination,
some of which Wintemute notes, although he does not attempt to provide
solutions to them all. Interestingly, he states8 that this approach conflicts with
the but-for test expressly adopted by the House of Lords in James v Eastleigh
Borough Council.9 This is the idea that discrimination occurs when a person is
treated in a particular way if they would not have been but for some fact about
them. Thus a woman is discriminated against on the grounds of her sex when
she is treated in a particular way which would not have occurred but for the
fact that she was a woman. Hence no comparison is required. A woman would
not be pregnant if she were notbut for the fact that she isa woman. It
therefore follows, it was said, that pregnancy discrimination is direct sex
discrimination. However, it would not seem to be a test that defines or
delineates direct discrimination at all. It can be applied equally well to indirect
Case C-32/93 [1994] ECR I-3567.
Case C-177/88 [1990] ECR I-3941.
5
Case 342/93 [1996] ECR I-475.
6
Case C-177/88 [1990] ECR I-3941.
7
Wintemute at 31. It is not at all clear why Wintemute sees direct discrimination as requiring
exclusive impact. A person may treat a woman, on the grounds of her sex, less favourably than he
treats or would treat a man, but he may treat some men equally unfavourably. This would not
prevent such action being directly discriminatory. It is the nature of the cause rather than the impact
that is of relevance here.
8
Op cit at 34.
9
[1990] ICR 554, [1990] IRLR 288. Wintemute also attributes this idea possibly to the ECJ in
Dekker, but see below.
3
4

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discrimination cases in that it is possible to say that, but for the victims sex, she
would not have had a requirement or condition applied to her which women
are less able to fulfil than men, or at least, but for her sex, the woman would
not have failed to satisfy the requirement or condition which is applied to both
sexes. Paradoxically, then, Wintemute need not have allowed this as a difficulty
at all.
He does, however, also attempt a counter to the familiar objection that
finding neutral treatment (inherent in indirect discrimination) requires comparing the treatment of a pregnant woman with an ill man, an approach which
several people have found highly offensive. Wintemute here adopts Paul
Daviess reply10 that the nature of the physical condition giving rise to unavailability for work is irrelevant, but the fact of the unavailability is what matters.
Presumably then (although he does not say so) unavailability for any reason,
not just medical, is capable of providing a comparison. There is force in this
argument, but it does not fully meet the objection, which is perhaps two-fold.
The first is that pregnancy should be seen to be something that is in the normal
run of things, not to be compared with aberrative and unfortunate events. The
second objection sometimes made,11 and the one which gives rise to most
offence being taken, is that comparisons are still to be drawn with treatment of
males, as if this gives the touchstone of normality. It is not that women are
being compared with ill men rather than men who need medical treatment that
offends, for what is offensive about illness?
The third objection Wintemute identifies is that indirect discrimination, unlike
direct, may be justified. To many, this is anathema, and the UK courts would
be willing to find justification all too often, and possibly the ECJ too.12 To this,
Wintemute offers no reply, except to state that it highlights the issues regarding
pregnancy discrimination, which is but small comfort.
There are other objections to pregnancy discrimination as indirect discrimination. The first is that, although the barrier to compensation in these cases has
now been removed, it is all too easy for tribunals to see any form of indirect
discrimination as somehow more excusable than direct discrimination, and not
just because the possibility of justification exists. It may be thought that indirect
discrimination, being to some extent a hidden form, is often more inadvertent
than direct discrimination, and more susceptible to a sympathetic response,
rather than often a rather more pernicious form of ill-treatment with the
perpetrator trying to hide his tracks. But another, perhaps more substantial
10
Davies, The European Court of Justice, the National Courts and the Member States in
European Community Labour Law: Principles and Perspectives (Oxford: Clarendon Press, 1996) at
127.
11
See eg Fredman, Women and the Law (Oxford: Clarendon Press, 1997) p 192f.
12
Wintemute at 35.

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objection is that indirect discrimination is to some extent dependent upon

chance facts. It may be that a requirement or condition is applied to pregnant
women which they would much more easily satisfy if they were not pregnant,
but no indirect discrimination claim will lie unless this happens to be more
easily satisfied by a higher proportion of men. This is, of course, one of the
prices to be paid by piggybacking the protection of pregnant women on
legislation designed to deal with problems of sex.

3. PREGNANCY DISCRIMINATION AS NON-COMPARATIVE DIRECT DISCRIMINATION

Is the solution to these difficulties, then, to take discrimination claims out of the
element of comparison, and to see pregnancy discrimination as direct discrimination not requiring a comparison with a male norm?
One practical difficulty with this is the requirement in the sex discrimination
legislation for a comparator. This is the case for both forms of claim, both direct
and indirect. On a conceptual level this would seem straightforward in that the
notion of discrimination requires at least two parts (persons, ideas, situations
etc) to be treated differently in some respect. In the case of direct discrimination
it would seem clear that the scheme envisages this in that the Sex Discrimination
Act 197513 (the SDA) defines discrimination as occurring when a person on the
grounds of her sex treats a woman less favourably than he treats or would treat
a man. Indirect discrimination likewise requires a comparison to be drawn
between the proportions of sexes in the group which can comply with the
allegedly discriminatory requirements or conditions.14 Nevertheless, the ECJ in
Dekker (a case brought under the Equal Treatment Directive) held that a
finding of sex discrimination does not require a comparison to be made between
the treatment of women and either a real or hypothetical man, or vice versa.
The reasoning was very simple. The Court stated that:
[O]nly women can be refused employment on the ground of pregnancy and such a
refusal therefore constitutes direct discrimination on the ground of sex.15

and:
Section 1(1)(a).
Section 1(1)(b).
15
Above, n 6 at 3973. This is, of course, not strictly true. A man can be discriminated against on
the grounds of pregnancy, for example because he has made a woman pregnant and refuses to
marry her. What cannot occur (at least at present) is that he is discriminated against on the grounds
of his pregnancy. As the argument is that pregnancy discrimination is a form of sex discrimination,
and the Sex Discrimination Act 1975 section 1(1)(a) requires direct discrimination to be on the
grounds of the applicants own sex, presumably it is considered that this excludes the grounds of
anothers pregnancy. However, it is by no means clear that this is necessarily the case.
13
14

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It should be stressed that the reply to the question whether the refusal to employ a
woman constitutes direct or indirect sex discrimination depends on the reason for that
refusal. If that reason is to be found in the fact that the person concerned is pregnant,
then the decision is directly linked to the sex of the candidate . . . [it] must therefore
be that the fact that no man applied for the job does not alter the answer to [the
question as to whether this constitutes sex discrimination].16

Thus the ECJ seemed to conflate the two issues as to whether there can be sex
discrimination when it is on the grounds of pregnancy and whether a comparator is required in such circumstances. Little reasoning for this conclusion was
offered, and the Court seemed to take it as self-evident. The House of Lords
took a similar course (by a bare majority) in James when it created the so-called
but-for test because this can be shown without comparison with real or
hypothetical men. As in Dekker a direct connection was made that persons who
are subjected to pregnancy discrimination are necessarily women and therefore
such discrimination is sex discrimination.
It should be noted, however, that the test in Dekker, whilst making a
necessary link between pregnancy and sex, is not a strict but-for test, although
it is obviously similar to that in James. In those circumstances where there is
more than one ground of discrimination it cannot be said that, but for the
prohibited ground, the applicant would not have been discriminated against.
She would in any event have been the victim of discrimination for this other
reason.17
Wintemute challenges the analysis in both Dekker and James. He argues that
comparison is always required in a discrimination claim, be it direct or indirect,
because equality is a comparative concept. He writes:
When an individual claims direct discrimination, they compare their treatment with
that (actually or hypothetically) received by another person and argue that the
difference in treatment would not have occurred but for a particular difference
between them and the other person which is a prohibited ground (eg sex). The
treatment of one person can only be less favourable when compared with that of
another person. When a person claims indirect discrimination, they argue that neutral
treatment applied to them and to other persons has a disproportionate impact on
their group (defined by one manifestation of the prohibited ground) when compared
with the impact the treatment has on other groups (defined by manifestations of the
Ibid at 3974.
Cf Ellis, The Definition of Discrimination in European Community Sex Equality Law, (1994)
19 Eur L Rev 563 at 567 where she writes of the decision in Dekker: Since employment can only
be refused because of pregnancy to a woman, such a refusal, the Court held, must be direct
discrimination on the ground of sex . . . In other words, the Court was saying that, but for Ms
Dekkers sex, she would have been appointed, so that her adverse treatment must be grounded on
her sex . . . See too Wintemute at 34 where he draws a comparison between James and Dekker in
this respect.
16
17

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prohibited ground). Comparison is thus essential to show either that the prohibited
ground is the cause of or reason for the different (less favourable) treatment, or to
demonstrate the disproportionate impact of neutral treatment. Claims of discrimination without comparison are impossible.18

So Wintemute rightly uses the but-for test, not to establish a direct-link test of
the type in Dekker, but to argue for the requirement of a comparison. However,
he does so without recognising that the scope of comparison should be rather
narrower than he acknowledges.
It is possible (perhaps even necessary) to retain the comparative approach
seemingly essential to a discrimination-based claim without odious references
to the male norm. To accept that the concept of discrimination requires
comparison does not entail that it requires comparison with others. It would
seem to be of the essence of discrimination that an element of investigation
between at least two otherwise identical situations is necessary, but that does
not mean that this entails two or more people. In order to establish the ground
for the particular treatment, it is necessary to ensure that the two scenarios to
be compared are otherwise identical but for the purported ground of discrimination only. If not, then of course one cannot be sure that other features not
shared between the two cases (existing only in the one but not the other) do
not include the cause of the discrimination. It would thus seem to follow that
one ought to pare down the non-identical features as much as possible, and this
would seem to mean that the correct course should be to compare the situation
of the victim with that that person would have been in had it not been for the
purported discriminatory cause. This is not a fallback position in the event of
no comparator being available, either for practical or conceptual reasons, but
would seem to the best way to isolate and identify the discriminatory factor. In
the case of a pregnant woman who claims discrimination, it should therefore
not be, as Wintemute claims, that what matters is who the comparator should
be, but what the hypothetical scenario (without the discriminatory factor) is.
Thus, quite simply, one should ask the question: Would X have been treated
differently but for the fact that she was pregnant? In other words, the but-for
test without a comparator does not abandon the requirement inherent in
discrimination that a comparison be drawn. Indeed, it applies it in its purest
form.
It should be noted, however, that the requirement for a comparison to be
drawn is pertinent primarily to the issue whether there has been discrimination
this may be called the discrimination point. It is not (definitionally) relevant
to the nature, or the ground, of that discriminationthe grounds issue. Most
cases, including Dekker and James, are concerned with the grounds issue alone.
18

At 25 (footnotes omitted).

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The courts in these cases are concerned with whether pregnancy discrimination
is sex discrimination. This is a grounds issue, not a discrimination point. They
were not exercised by the problem as to whether there had been different
treatment afforded to the pregnant employee. They were exercised by what the
reason for that different treatment was. Comparisons should be made in order
to determine if there has been discrimination. What the reasons for it are is a
separate issue. But that does not mean, of course, that there need be no
comparison to establish particular grounds. On the contrary, this can only arise
given that the comparison has been made and disparate treatment identified.

4. PREGNANCY DISCRIMINATION AS SEX DISCRIMINATION

It is important to recognise what the but-for approach of the courts amounts to,
but also what it does not. It is not a correct application of the test to conclude
that, as discrimination on the grounds of pregnancy can only happen to a
woman, it follows that discrimination on the grounds of pregnancy is therefore
sex discrimination, whether direct or indirect. This common error is caused by
a failure to fully understand the importance of recognising that there are four
categories of relevance in pregnancy cases.19 These are:
(A)
(B)
(C)
(D)

All women
Pregnant women
Women who are not pregnant
Men

Consider the composition of, and the relationship between, these groups.
Category A consists entirely of categories B and C. Categories B and C belong
only to category A and never to D. Those in category D cannot belong to any
of categories A, B or C. The argument that to discriminate against a pregnant
woman is necessarily to discriminate against her on the grounds of her sex is to
say this: discrimination based on membership of B is discrimination on grounds
of sex because B is in A (a feature shared by C) and never in D which is a
distinction based on sex. This may seem attractive, but its illogicality can be
shown by constructing a different example. Now consider these groups:
(A)
(B)

All white people

Naturally red-headed people

19
It is usually the case that just two categories are considered relevant, namely pregnant women
and non-pregnant persons, with sometimes a third added by making a further distinction between
non-pregnant women and all men.

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(C)
(D)

Pregnancy and Sex Discrimination

White people with other-coloured hair

All non-white people

In the same way as in the previous example, categories B and C comprise

category A, and are never in category D, which is entirely distinct from any of
the other categories. Is it true to say that to discriminate against naturally redheaded people is to discriminate against them on the grounds of the fact that
they are white because only white people are natural redheads? Of course not,
because category C is relevantit may be that redheads are discriminated
against only as against natural blondes, who also do not belong to category D,
but do belong to A, along with those in B. They may never be discriminated
against as against non-whites. There would not have been discrimination but
for the fact that the redheads were white, but that is not the reason for the
discrimination. It can hardly be labelled race discrimination. The treatment is
not in favour of non-whites. That category, D, (though relevant to note in that
it closes the possible categories) is not active in both these examples.
So, what is the root of this mistake? It is, quite simply, not to recognise that
the but-for test can only take us so far. The only correct formulation of the test
in pregnancy cases is to determine whether the different treatment would have
occurred but for the pregnancy. To examine whether it would have occurred
but for the victims sex is to commit the error just described. This is made clear
when considering the other possible roots of pregnancy discriminationit may
be, for example, nothing to do with gender at all, but caused by a desire to hurt
the young, the heterosexual or the non-celibate, or caused by the jealousy of
those (men or women) who are able to have children.20 It may even be in
discrimination which aims to advantage non-pregnant women, disadvantaging
both pregnant women and men.21 Wintemute does not deal with this, instead
considering a comparison between pregnant women on the one hand and nonpregnant persons (male or female) on the other. This of course still puts
pregnant women and men into opposing categories, facilitating an argument
that pregnancy discrimination is sex discrimination in that being pregnant is
part of what it is to be a woman. But this is not at all clear where the
advantaged group is non-pregnant women, with all men and pregnant women
treated the same. The women in those circumstances would not be disadvantaged but for their pregnancy, but it could certainly not be said they would not
20
It is important to note here that this point does not confuse the grounds of discrimination with
the motives for it, as it goes to causes rather than desires. It is just that here the ground here is
identified by a particular motive.
21
For example, an employer may feel that non-pregnant women have more reliable attendance
records, or are more resilient, or more healthy, or are more professionally more caring than either
men or pregnant women.

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have been discriminated against but for their sex. On the contrary, had they
been of the opposite sex, they would certainly have been discriminated against.

5. CONCLUSION
There are several advantages to the method of approach suggested above.
Firstly, the concept of discrimination is meaningless without an element of
comparison. It is part of what is involved in discriminating that different
treatment is made between different parts (circumstances, people etc), and that
cannot occur without an element of comparison. To attempt to abandon this is
to do violence to the concept of discrimination.
Secondly, this approach nevertheless maintains the comparative element
without the protection afforded to pregnant women being reliant on the equality
principle. Pregnancy demands special treatment. Pregnant women do not need
to be treated equally with other people, but to be treated differently. They,
paradoxically, require discriminatory treatment, and they need it because they
are pregnant. To argue that pregnancy discrimination is direct sex discrimination
is thus to entail one of the heresies of the statutory discrimination scheme,
namely that direct discrimination can be justified. And yet discrimination in
favour of pregnant women because they are pregnant is justified. Are we to
therefore acknowledge that direct sex discrimination can be justified? Of course
not. The answer is that pregnancy discrimination is not sex discrimination. But
it is discrimination nonetheless.
It would thus seem desirable to create a separate head of discrimination law
(such as a Pregnancy Discrimination Act22) for what might be called defensive
claims, namely those where the pregnant woman is claiming that she is being
treated less favourably than her non-pregnant male and female comparators,
but that there should be other legislative provision made for positive claims,
namely where it is justified to treat pregnant women more favourably. These
are not alternatives, but complementary forms of protection suited to differing
needs. Although care must be taken that positive rights do not continue to
reflect male norms, or to be provided for in such a way as to in fact shore up
social female disadvantages, it would seem that there is no other realistic
possibility.23 Justified discrimination cannot rest on the back of anti-discrimination protection.

22
Some pregnancy claims originally came under the Employment Protection Act 1975 rather
than the SDA, but this was very limited, giving the employer a defence where the woman was
incapable of working adequately.
23
See further Fredman, Women and the Law (Oxford: Clarendon Press, 1997) 192ff.

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