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Stereotypes and assumptions

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Last updated 24th July 2019.

Stereotypes and assumptions about stammering are common, as they are for other disabilities. Less favourable treatment based on a stereotype may well be unlawful as ‘direct discrimination’, for which there is no justification defence. It also gives scope to claim for ‘perceived disability’ even if one is not actually disabled. See also more generally Direct discrimination.

Summary

There is likely to be direct discrimination if the employer (or service provider etc) treats someone less favourably based on stereotypical assumptions about their disability, without considering the individual’s actual abilities and circumstances. If it is direct discrimination:

  • there is no justification defence; and
  • even if the claimant does not actually have a ‘disability’ as defined, they may well be able to claim for ‘perceived disability’ (below).

Direct discrimination is basically less favourable treatment because of a disability. The claimant will be expected to show that the legal requirements for direct discrimination are met. However this should not normally be difficult if the employer acts on a stereotypical assumption. Because of the disability (or perceived disability) the employer applied a stereotype which it would not have applied to a non-disabled person.

In a 2019 case, the Court of Appeal said that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability (below Chief Constable of Norfolk v Coffey).

Example: An applicant mentions in a job application for a sales role that she has a stammer. The employer assumes that a person who stammers would not have the communication skills required for the job, so does not invite her for interview. The employer does not look at her actual abilities. This may well be unlawful as direct discrimination.
Note: There are people who stammer who have excellent communication skills. Of course it may be difficult to show the rejection had anything to do with the stammer. This may be an argument for not mentioning the stammer in an initial job application.

The House of Lords has held that stereotyping can be unlawful even if the ‘stereotype’ has some truth in it: Roma Rights case (below).

Below are examples of direct discrimination from stereotypes in the Employment Code and in decided cases (including Court of Appeal and House of Lords cases).

There will need to be some evidence (below) from which the tribunal can infer stereotyping.

What counts as a stereotypical assumption?

This has not been much discussed by the courts in the context of disability.

Very often it should not be important, because even if there is no direct discrimination there will typically be a claim for discrimination arising from disability which the employer may struggle to justify (‘Direct discrimination’ vs ‘discrimination arising from disability’). The boundary of ‘stereotypical assumption’ might be most important if the claimant needs it to be direct discrimination because he wants to claim for perceived disability (below).

The Court of Appeal in Chief Constable of Norfolk v Coffey (2019) said that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability. The position may be different if the employer simply makes an error about the effects of the disability – without a stereotypical assumption. The stereotypical assumption in Coffey was that the claimant’s hearing loss would at some stage render her incapable of performing front-line duties. Accordingly there was direct discrimination. However the Court of Appeal commented that the EAT judge accepted – and the claimant did not dispute – that if the employer had simply made an error about what the hearing test results meant in terms of the claimant’s ability to do the job, it would not be direct discrimination. There are other examples of stereotypical assumptions in the cases below.

Examples of possible stereotypical assumptions on stammering:
– Someone who stammers will not have good oral communication skills (but see Excellent communication skills).
– Someone who stammers will be less intelligent, or “If they talk slower they think slower”. (Stammering does not affect speed of thought).
– Our clients will not like someone who stammers (but see Excellent communication skills).
Also see below What if stereotype has some truth in it?

The legal test underlying this is broadly whether the less favourable treatment was because of the disability (Direct discrimination). One might say therefore that a ‘stereotypical assumption’ is an assumption made because of the disability. Normally the employer etc would look at the skills of the particular individual, and it is treating the disabled person less favourably by instead making assumptions from their disability.

Let us illustrate some of the issues with some examples on stammering:

As in the sales role example above, a job applicant tells the employer in a job application that he has a stammer, and says nothing more about its effects. The employer turns the person down because of the stammer.

This looks like a stereotypical assumption, as the employer had no concrete information on the effects of the stammer. It should be direct discrimination, though this may be difficult to prove.

What about the following example:

A job applicant for a customer service post does not mention the stammer in her job application. However when invited for interview she asks for extra time for the interview because she has a stammer. The employer withdraws the offer of an interview.

The most important point here is that she should be able to claim discrimination arising from disability, which the employer is likely to find it very difficult to justify.

However what if she wants to also claim direct discrimination, perhaps so she can claim for perceived disability in case the employer argues the stammer is not a disability? She effectively said to the employer her speech may be slower in the interview. What if the employer’s excuse for withdrawing the interview offer is that it does not want someone whose communication with customers will be slow. Is a perception by the employer in this situation that she will communicate too slowly with customers a stereotypical assumption? A stammer will often be more severe in an interview than in the job situation (Assessment of oral skills in recruitment>Oral interview not appropriate way to assess oral skills). Does it make a difference if the applicant specifically tells the employer that her stammer is more severe in an interview? Does it make a difference if the applicant’s job application includes successful similar customer service roles? The employer might argue there is no direct discrimination because it would treat anyone who needs more time to speak (even just in an interview?) in the same way; that argument may or may not succeed (eg Direct discrimination>Relevant circumstances). Accordingly the position is not clear on direct discrimination. However I suggest that such a peception by the employer is arguably a stereotypical assumption. The applicant may at least be able to argue that a stereotypical assumption (examples above) by the employer was a contributory factor (below) in its decision. This will depend on the evidence.

Even if it is not direct discrimination so she cannot claim for perceived disability, a tribunal would very often find a stammer to be a disability anyway. This seems especially probable in her case given she needs more time in the job interview, which itself is likely to be a ‘normal day-to-day activity’: see Normal day-to-day activities>Recruitment and promotion.

Is the following example different?

A job applicant stammers significantly in a job interview, but makes the point that he is more fluent in the job situation, perhaps citing previous roles he has performed successfully. The employer nevertheless thinks his interview performance is a good guide to how he will speak in the job so does not appoint him.

Does the employer here make a stereotypical assumption? The employer has greater first-hand knowledge of the job applicant’s speaking abilities. However it may also have ignored a lot of the evidence. The position is unclear but claimant might argue the employer was at least partly influenced (below) by a stereotypical assumption (examples above). As ever, even if direct discrimination were not available the applicant could claim for discrimination arising from disability, which the employer could try and justify.

In summary, I don’t have any clear conclusion on the boundary between what is and isn’t a stereotype. However:

  • often it will not matter in practice;
  • even so it may be worth claiming direct discrimination as well as discrimination arising from disability, arguing that the employer was at least in part influenced by a stereotypical assumption, of which there are examples above (below Stereotype need only be a contributory factor).

Stereotype need only be a contributory factor

Direct discrimination does not require that the stereotypical assumption was the only reason for less the favourable treatment. It need not even be the main reason. It should be sufficient that the role of the stereotypical assumption was significant in the sense of being more than trivial. See Direct discrimination>Disability need not be the only or main cause of the less favourable treatment.

Accordingly, it should be possible to argue that even if part of the reason for the treatment was, say, non-stereotyped abilities, there is direct discrimination if a stereotypical assumption played a signficant part.

Court of Appeal reflected this in Coffey when it said that the employer’s concern about the person’s abilities need only be “significantly influenced by” a stereotypical assumption.

Interaction with ‘perceived disability’

Normally the stammer will be a ‘disability’ as defined. However if the employer made a stereotypical assumption about the stammer, this will commonly mean that the employer saw the stammer as a disability in any event. This should allow the person to claim that even if the stammer does not actually meet the definition of disability, there is direct discrimination because of perceived disability. This would be ‘insurance’ in case the employer argues the stammer is not a disability.

In the first example above of applying for a sales job, the employer made a stereotypical assumption that a person who stammers would not have the communication skills required for this job. Legally this appears to be a perception that the person’s impairment has a substantial effect on normal day-to-day activities – in the same way as the Court of Appeal in Coffey held that the employer had such a perception where it thought the claimant would be unable to perform her full duties as a police officer. Therefore it seems likely that the job applicant could claim direct discrimination because of a perceived disability, even if she does not actually have a disability within the Equality Act definition.
In practice it may be difficult to show the rejection had anything to do with the stammer.

What about the following example already used on this page:

A job applicant for a customer service post does not mention the stammer in her job application. However when invited for interview she asks for extra time for the interview because she has a stammer. The employer withdraws the offer of an interview.

As discussed above (What counts as a stereotypical assumption?), it is not clear whether there is a stereotypical assumption. However even if it is not direct discrimination, she should have a claim for discrimination arising from disability, and (though not able to claim for perceived disability) is likely to have an actual disability.

Importantly, there is likely to be clearer evidence than the previous example that the employer’s action was related to the stammer, so more evidence on which to base a tribunal claim.

Interaction with ‘discrimination arising from disability’

Even where there is no direct discrimination, unfavourable treatment related to the disability is likely to be unlawful as ‘discrimination arising from disability’ unless the employer can justify it. It would be very difficult for an employer to justify stereotyping. See ‘Direct discrimination’ vs ‘discrimination arising from disability’>Is the distinction important in practice?

Unlike direct discrimination, on a claim for ‘discrimination arising from disability’, the stammer will probably need to be a ‘disability’ within the Equality Act. This is because ‘perceived disability’ is likely not to apply to discrimination arising from disability.

Employment Code

The status of the Employment Code is much weaker legally than the appeal cases given below. However the cases are consistent what the Code says, and the Code is a good place to start for simple examples.

The Employment Code at paragraph 3.15 says: ‘Direct discrimination also includes less favourable treatment of a person based on a stereotype relating to a protected characteristic, whether or not the stereotype is accurate.’ The Code goes on to give an example about age, which should apply equally to disability:

From the Employment Code, para 3.15:
An employer believes that someone’s memory deteriorates with age. He assumes – wrongly – that a 60-year-old manager in his team can no longer be relied on to undertake her role competently. An opportunity for promotion arises, which he does not mention to the manager. The employer’s conduct is influenced by a stereotyped view of the competence of 60 year olds. This is likely to amount to less favourable treatment because of age.

Later in the Employment Code there is an example specifically on communication skills:

From the Employment Code, para 11.36
A deaf woman who communicates using British Sign Language applies for appointment as a Chair of a public body. Without interviewing her, the public body making the appointments writes to her saying that she would not be suitable as good communication skills are a requirement. This could amount to discrimination because of disability.

Court decisions

Disability

Normally unfavourable treatment because of someone’s abilities will be discrimination arising from disability rather than direct discrimination, so that the tribunal needs to decide whether or not the treatment was justified (Direct discrimination’ vs ‘discrimination arising from disability’). However the Court of Appeal in Chief Constable of Norfolk v Coffey (below) clarified that stereotyping is an exception to this. The court said that an employer’s concern about the ability of a disabled claimant to do the job may constitute direct discrimination if it is significantly influenced by a stereotypical assumption about the effects of the disability. It may be different if the employer simply makes an error about the effects of the disability – without a stereotypical assumption.

Chief Constable of Norfolk v Coffey, Court of Appeal, 2019
A police constable applied to transfer to Norfolk. She had a hearing impairment which gave no problems doing her job as a police officer. However Norfolk police were concerned it would get worse so that she would have to be put on restricted duties. The medical evidence was that her hearing was stable.

The Court of Appeal upheld a claim for direct discrimination, because the employer perceived her to have a progressive disability. There was direct discrimination because the employer’s concern about her ability to do the job was significantly influenced by a stereotypical assumption about the effects of the disability. The stereotypical assumption was that her hearing loss would render her incapable of performing front-line duties.

It might be different if the employer had simply made an error about what the hearing test results meant in terms of her ability to do the job.

The Court of Appeal in Coffey cited its earlier decision in Aylott on stereotyping a mental health condition:

Aylott v Stockton on Tees Borough Council , Court of Appeal, 2010
The court held there was direct dicrimination against a claimant with bipolar disorder, due to the employer’s stereotypical view of mental illness. The court emphasised that stereotyping may be a legitimate basis for claiming direct discrimination, providing there is appropriate evidence. The court said (and the court in Coffey above quoted these passages):

‘Direct discrimination can occur, for example, when assumptions are made that a claimant, as an individual, has characteristics associated with a group to which the claimant belongs, irrespective of whether the claimant or most members of the group have those characteristics. ….’

‘The council’s decision to dismiss the claimant was based in part at least on assumptions that it made about his particular mental illness rather than on the basis of up-to-date medical evidence about the effect of his illness on his ability to continue in the employment of the council.’

See also below Evidence of steretyping.

Eagle Place Services v Rudd (link to bailii.org) [2010] IRLR 486, Employment Appeal Tribunal (EAT)
A solicitor had detached retinas, and required various adjustments including doing some work from home. He was dismissed. The tribunal found the real reason was that the employer was concerned it would not get an appropriate financial return in terms of the claimant’s billable hours.

The tribunal held there was direct discrimination (and the EAT upheld this). The employer had taken a ‘stereotypical view to the effect that the Claimant’s disability made him an inconvenient liability that would inhibit or damage the [employer’s] commercial objectives.’ The ‘comparator’ was a lawyer of the same grade and skills as the claimant and who shared a similarly good relationship with the client. The comparator would also need to work from home for two days per week, but not because of a sight disability. The tribunal decided that such a comparator would not have been dismissed; there would have been no need to as the employer, employee and client’s needs/expectations would be met. So there was direct discrimination.

Price v Action-Tec Services, [2013] EqLR 429, Employment Tribunal
A telesales executive had just passed her trial period, but was then dismissed after an absence from work related to her husband’s leukemia. The reason for dismissal was said to be under-performance.

The tribunal held the real reason was that the employer had just found out about the likely effect on the claimant of her husband’s disability, and also about the extent of, and ongoing nature of, the claimant’s own disabling back condition which would require regular hospital visits. The tribunal said the employer could have embarked on a performance management process, and/or set out requirements to improve attendance. Instead, the employer made a stereotypical assumption that, because of the disabilities of herself and her husband, the claimant would be an unreliable and under-performing employee. The employer would not have made this assumption of an employee with the claimant’s attendance record in the absence of the disabilities. Accordingly there was direct discrimination.

This is not an appeal case so is not legal authority, but is nevertheless a useful example of direct discrimination. It is also an example of Discrimination by association – the discrimination was partly because of her husband’s disability.

Tudor v Spen Corner Veterinary Centre, 2006, Employment Tribunal
An animal nursing assistant and receptionist lost her sight as a result of her stroke. She was dismissed.

The tribunal held there was direct discrimination. The employer had made generalised and stereotypical assumptions about the claimant. The vet running the practice simply assumed that the claimant would not recover her sight. Moreover the vet did not meet the claimant or seek any input from her before the dismissal. Further the vet failed to make any proper enquiries as to what reasonable adjustments might be made.

This is not an appeal case so is not legal authority, but is nevertheless a useful example of direct discrimination.

What if stereotype has some truth in it?

That stereotyping can be direct discrimination is supported by sex discrimination cases, and also by the Baroness Hale in a House of Lords decision on race discrimination:

‘Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify.’
Baroness Hale in the Roma Rights case (cited by Court of Appeal in the Aylott case).

As that quote illustrates, stereotyping can be unlawful even if the ‘stereotype’ has some truth in it:

In the Roma Rights case itself, the court held it was unlawful for UK immigration officers stationed at Prague airport to treat Roma seeking to come to the UK with particular scepticism, even though the vast majority (if not all) Czech nationals applying for asylum in the UK were Roma.

Accordingly, for example, even if it were true that – averaged out – people who stammer as a whole had lower communication skills than the general population, it is likely to be unlawful direct discrimination to make a decision based on a stereotype that someone who stammers will have poor conmunication skills. The employer should look at the abilities of the particular individual. (I do not know whether it is true on average that people who stammer have ‘lower communication skills’.)

Baroness Hollis’s statements in 2003 House of Lords debates (in Hansard) may support the argument that decisions based on stereotyped and generalised assumptions cannot be justified.

Evidence of stereotyping

It can be difficult to prove discrimination, even on a balance of probablities, ie showing it is more likely than not. There is therefore a rule that the burden of proof shifts to the employer or service provider etc if the claimant makes out a prima facie case. See Proving discrimination>Shift in burden of proof.

Even so it is not enough that the claimant just asserts there has been some stereotyping. The Court of Appeal said in Aylott:

“…a [tribunal] can err in law if they conclude that liability for direct discrimination has been established simply by relying on an unproven assertion of stereotyping persons with that particular disability. Direct discrimination claims must be decided in accordance with the evidence, not by making use, without requiring evidence, of a verbal formula such as “institutional discrimination” or “stereotyping” on the basis of assumed characteristics. There must be evidence from which the [tribunal] could properly infer that wrong assumptions were being made about that person’s characteristics and that those assumptions were operative in the detrimental treatment, such as a decision to dismiss.

“In this case there was evidence from which the [tribunal] could, and did, make detailed findings of primary fact about the Council’s [ie the employer’s] reactions to the claimant’s mental disability and could properly make inferences from those facts to support the conclusion that the Council dismissed him on the ground of his mental disability. The Council’s decision to dismiss the claimant was based in part at least on assumptions that it made about his particular mental illness rather than on the basis of up-to-date medical evidence about the effect of his illness on his ability to continue in the employment of the Council.”


20th anniversary of stammeringlaw, 1999-2019