Abstract
Given the difficulties involved in proving indirect sex discrimination, the practical importance of the allocation of evidential burdens and the quantum of proof required to discharge those burdens should not be underestimated. The recent decisions by the ECJ in Case C-167/97 R v Secretary of State for Employment ex parte Seymour-Smith [1999] ECR I-623 and by the House of Lords in Barry v Midland Bank plc [1999] IRLR 581 and R v Secretary of State for Employment ex parte Seymour-Smith (No 2) [2000] 1 All ER 857 erect significant barriers to indirect discrimination claims, especially in cases challenging legislation. The apparent retreat from a vigorous application of the indirect discrimination concept may reveal judicial uneasiness with the substantive view of equality that underlies the concept, as well as discomfort with the quasi-constitutional implications of overriding legislative policy judgments.
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