Discrimination is perhaps one of the most controversial topics in labour law when it is viewed from the rights and economics perspectives. First, there is controversy between the two camps. Rights theorists are almost universally in favour of legislation to combat discrimination, whereas some (though by no means all) economists argue that governmental intervention is unnecessary. Second, there is controversy within each camp. Within the rights camp, for example, there is a fierce debate surrounding the concept of equality. Within the economics camp, there is a debate about the costs and benefits of tackling discrimination, and even a debate about whether or not discrimination exists at all.

This chapter will begin by considering economics perspectives on discrimination, since they offer a good introduction to the debate as to whether or not the law should intervene at all in this area. We will then consider the rights perspectives, which will help to explain what form legal intervention should take if it occurs. And we will conclude with a discussion of English law. The law generally adopts a rights perspective, but we need to ask which rights perspective it is and to what extent it is influenced by economic factors.

Economics perspectives

Our discussion of economic accounts of discrimination will be divided into two sections: those accounts which do not support legal intervention, and those which may be used to do so. In the former category, we find the argument that much alleged ‘discrimination’ may not be discrimination at all, and the argument that discrimination does exist but will ultimately be cured by the market itself.