Equality Law and the Protected Characteristics

Abstract

UK anti‐discrimination law is founded on a grounds‐based system of protected characteristics. For this system to function as a legitimate and workable legal framework the characteristics must satisfy three conditions: they must have some definitional and categorical stability, they must broadly reflect people's understanding of social reality and lived experiences and they must align with the most significant axes of discrimination in society. This article argues that all three conditions are becoming increasingly difficult to satisfy as a result of dramatic shifts in social configurations of identity and the ongoing failure to include socio‐economic status as a legally protected characteristic. The future of the legislative framework may depend on the willingness of courts and policy‐makers to adopt a more context‐based approach to the protected characteristics. This would require them to interrogate claims of individual instances of discrimination in the context of wider, but also more particular substantive group disadvantage.