Comparators in marital status discrimination: General or specific?

Abstract

Discrimination can be broadly defi ned as indefensible differential treatment based on certain prohibited grounds. It is implicit in the concept of differential treatment to have a comparator who is in similar or not materially different circumstances. It is argued that it is not always possible to fi nd an appropriate comparator in the context of marital status discrimination, and a liberal and holistic approach is called for in the case of hiring or dismissal involving a spouse. The article concludes with some refl ections on when such hiring or dismissal decisions could be justifi ed, and points out that while a liberal and holistic approach is desirable, the present statutory regime may not permit such an analysis in the case of direct discrimination, and that the court will fi nd itself engaged in a tortuous and artifi cial comparator analysis to avoid a fi nding of discrimination when the differential treatment may be justified.