3 | What does the law say? For example, an insurer who requires all customers to prove their identity by providing a driver’s licence is likely to indirectly discriminate against anyone who is unable to drive because of a disability. This is because the person with disability is unable to comply with the requirement, with the result that they may be denied insurance services, and it would be reasonable to allow them to prove their identity in another way. While there are some differences between the Discrimination Acts in their definitions of indirect discrimination (see Appendix 1), broadly, the key elements to indirect discrimination are: 1. A requirement is imposed, or proposed to be imposed. For the RDA and DDA, it must also be shown that the person with the protected attribute does not, or cannot or is not able to, comply with the requirement. 2. The requirement has the effect, or is likely to have the effect, of disadvantaging people with a protected attribute. 3. The requirement is not reasonable in the circumstances.12 Requirement The Discrimination Acts refer respectively to the imposition of a ‘term, condition or requirement’ (RDA), ‘requirement or condition’ (DDA), or ‘condition, requirement or practice’ (ADA and SDA). These terms are interpreted broadly to cover any form of qualification or prerequisite.13 Nonetheless, the relevant requirement should be identified with some precision.14 12 In the context of providing goods and services, a requirement is imposed where there is ‘some stipulation or set of circumstances that must be obeyed or endured if those goods or services are to be acquired, used or enjoyed’.15 Failure or inability to comply The failure or inability of the customer to comply with the requirement is necessary to establish unlawful conduct under the RDA and DDA. Under the RDA, it is necessary to show that the person ‘does not or cannot comply’ with the requirement. This should be understood with its ordinary meaning – a person who has not complied with the requirement will generally be a person who ‘does not’ comply with the requirement16 The DDA provides that ‘because of the disability, the aggrieved person does not or would not comply, or is not able to, or would not be able to comply’, with the requirement. Here, it must be shown that the failure or inability to comply was because of the disability. The courts have emphasised the need to take a broad and liberal approach when considering this issue.17 In assessing a person’s inability to comply with a requirement, it is a person’s ‘practical’ (as opposed to theoretical or technical) ability to comply that is most relevant.18 Moreover, in relation to the DDA, the courts have more broadly considered whether the complainant would suffer ‘serious disadvantage’ in complying with the requirement, rather than just their technical ability to comply.19