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An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 8: The Burden of Proof

An International Comparison of the Racial Discrimination Act 1975

Chapter 8: The Burden of Proof


8.1 The Burden of Proof in Australia
8.2 The Burden of Proof in the European Union
8.3 The Burden of Proof in the United Kingdom
8.3.1 Pre-Directive Judicial Approaches
8.3.2 Implementation of the Racial Equality Directive
8.3.3 Requirements of a Prima Facie Case
8.3.4 The Effect of Shifting - or Failing to Shift - the Burden of Proof
8.3.5 Further Complications: The Relevant Comparator
8.3.6 Questionnaires
8.4 The Burden of Proof in the United States and Canada
Stage 1: The Prima Facie Case
Stage 2: The Legitimate Explanation
Stage 3: Proving that Race is the Real Motivation
8.5 Indirect Discrimination
8.6 Standards of Proof and Standards of Evidence
8.6.1 Australia
8.6.2 Standards of Proof in Other Jurisdictions

8.1 The Burden of Proof in Australia

It is a basic principle of many adversarial legal systems that, in civil
matters, ‘he who asserts must prove’. That is, it is the person
seeking the benefit of the law who bears the burden of persuading the court that
it should exercise its authority. Like many general principles, however, this
rule has its exceptions, where for reasons of justice or public policy it makes
sense to require the respondent to carry the onus of proof, or at least bear the
burden of bringing evidence on a particular issue, which the plaintiff must then
refute. In Australian tort law, for example, while the burden of proof generally
rests on the plaintiff, it has been established that the defendant bears the
burden of proving contributory negligence, or proving that the plaintiff failed
to take steps to mitigate damages.[1]

Under the Australian Racial Discrimination Act 1975 (Cth), the person
alleging racial discrimination is required to establish all the elements of the
offence on the balance of probabilities. Where direct discrimination is alleged,
for example, the plaintiff is required to prove:

  • - that the respondent did an “act involving a distinction,
    exclusion, restriction or preference... which has the purpose or effect of
    nullifying or impairing the recognition, enjoyment or exercise, on an equal
    footing, of any human right or fundamental freedom in the political, economic,
    social, cultural or any other field of public life”
    and;
  • - that this act was based on race, colour, descent or national or ethnic
    origin.[2]

Of these two
elements, it is often the second which presents the plaintiff with the greatest
difficulty. As Professor Gaze notes: “Proving the reason for an action
or decision that exists in another person’s mind, where all the evidence
is controlled by the other person and they are not required to give any reason,
is very difficult”.
[3] The
difficultly for the plaintiff is compounded by the high standard of evidence
required by the court, which has been historically reluctant to find that a
respondent has discriminated on the basis of race without clear and cogent
evidence (based on the Briginshaw principle, which will be discussed
further at 8.6.1). As a result of these two factors, there have been very few
successful cases in which direct racial discrimination has been proved under
Australian federal law.[4]

This interpretation of the Racial Discrimination Act 1975 (Cth), which
places the entire persuasive and evidentiary burden on the plaintiff at all
stages of the case, has been criticised in some quarters. The Committee for
the Elimination of All Forms of Racial Discrimination
, for example, has
urged Australia to “envisage regulating the burden of proof in civil
proceedings involving racial discrimination so that once an alleged victim has
established a prima facie case that he or she has been a victim of such
discrimination, it shall be for the respondent to provide evidence of an
objective and reasonable justification for differential
treatment.”
[5] In light of
this, it is useful to consider the alternative approaches taken in each of the
other four jurisdictions studied in this paper. In each of these jurisdictions,
there is an onus on the defendant to give an explanation for conduct which is
prima facie discriminatory, either by proving on the balance of probabilities
that their actions were not racially motivated, as in the U.K. and the rest of
the European Union, or simply by articulating a legitimate explanation for the
apparently discriminatory behaviour, as in the U.S. and Canada.

Interestingly, this concept of a reversed burden of proof in discrimination
matters is not entirely alien to Australian federal law. The Workplace
Relations Act 1996
(Cth) sets out certain proscribed reasons for terminating
the employment of a person covered by the act, one of which is “race,
colour... national extraction or social
origin”
.[6] When an employee
seeks to make a claim under this section of the act, “it is not
necessary for the employee to prove that the termination was for a proscribed
reason”
, rather “it is a defence in the proceedings if the
employer proves that the termination was for a reason or reasons that do not
include a proscribed
reason”
.[7] Thus, it appears
that the employee need only prove that their employment was terminated, after
which the burden of proof falls on the defendant to prove that race was not a
reason for the termination. It is unclear why such a different standard of proof
should apply only to a limited subset of employees (those covered by federal
regulation) and only in the narrow field of employment termination.

8.2 The Burden of Proof in the European Union

The Racial Equality Directive sets out certain minimum standards
regarding the burden of proof to be applied in cases of racial discrimination,
while noting that it remains open to member states to put in place rules which
are more favourable to plaintiffs.[8] Where a person alleging discriminatory treatment manages to establish “facts from which it may be presumed that there has been direct or
indirect discrimination”
the burden of proof shifts to the respondent
to “prove that there has been no breach of the principle of equal
treatment.”
[9] This
principle applies only to civil, and not criminal proceedings, and need not be
applied in cases that are tried under an inquisitorial system, where the court
itself is responsible for establishing the facts of the
case.[10]

Crucially, the question of what facts will be sufficient to create a
presumption of discrimination, and therefore shift the onus on to the
respondent, is left to the discretion of national
courts.[11] Some guidance may be
provided, however, by the approach taken by the European Court of Human
Rights
(ECHR) and the European Court of Justice (ECJ).[12] When ruling on whether
the right to non-discrimination contained within the European Convention on
Human Rights
has been breached by a state party, the ECHR has stated that
the applicant is only required to show evidence of a difference in treatment,
after which the onus passes to the state to demonstrate that the difference in
treatment can be justified.[13] Thus, the plaintiff must show that they have been treated differently to a
(perhaps hypothetical) group of persons in a comparable situation but from a
different racial background. Once this has been shown, the respondent is then
obliged to provide evidence of a non-discriminatory explanation for such a
difference in treatment, in order to displace the assumption that it constitutes
unlawful racial discrimination. The rationale for this shift in the burden of
proof is that it is very difficult for the plaintiff to prove that any
particular treatment is due to the plaintiff’s race, since the facts that
go to prove such a matter are likely to be known only to the respondent.
Likewise, in cases of indirect discrimination, it is difficult for the plaintiff
to prove a negative (that there is no objective justification for the actions
which have an adverse effect), but correspondingly easier for the respondent to
prove a positive justification where one
exists.[14]

8.3 The Burden of Proof in the United Kingdom

8.3.1 Pre-Directive Judicial Approaches

Prior to the implementation of the Racial Equality Directive, the
courts in the U.K. had already established a practice of requiring the
respondent in a racial discrimination case to provide an explanation for actions
which appeared prima facie to be discriminatory. In the case of King v Great
Britain-China Centre
, Lord Justice Neil stated that “a finding of
discrimination and a finding of a difference in race will often point to the
possibility of racial discrimination. In such circumstances, the Tribunal will
look to the employer for an explanation. If no explanation is then put forward
or if the Tribunal considers the explanation to be inadequate or unsatisfactory
it will be legitimate for the Tribunal to infer that the discrimination was on
racial grounds.”[15]
This
requirement that the respondent provide an adequate explanation was not
expressed as a shifting legal burden of proof, since the risk of non-persuasion
remains at all times with the plaintiff. Nonetheless, the court described this
approach as “almost common sense” given the unlikelihood that
any evidence will be available to the plaintiff to directly prove the causal
link between the differential treatment and the difference in
race.[16]

While it may be ‘legitimate’ for the court to draw an inference
of discrimination where the respondent fails to provide an adequate explanation
to rebut the plaintiff’s prima facie case, the pre-Directive case law in
the U.K. also emphasises that the court is not legally bound to find in the
plaintiff’s favour.[17] It
will therefore not always be sufficient for the plaintiff to demonstrate
differential treatment and difference in race and rely on the absence of an
explanation to infer racially discriminatory grounds.

8.3.2 Implementation of the Racial Equality Directive

In 2003, several changes were made to the Race Relations Act 1976 (UK) in order to implement the E.U. Racial Equality
Directive
.[18] These changes
included a statutory procedure for shifting the burden of proof from the
plaintiff to the defendant once a prima facie case has been established. The new
sections of the Act state that:

“Where, on the hearing of the complaint, the complainant proves
facts from which the tribunal could, apart from this section, conclude in the
absence of an adequate explanation that the respondent... has committed such an
act of discrimination or harassment against the complainant... the tribunal
shall uphold the complaint unless the respondent proves that he did not commit
or, as the case may be, is not to be treated as having committed, that
act.”[19]

This new burden shifting process applies only to those types of
discrimination which are covered by the Directive. Non-Directive grounds of
discrimination, such as colour or national origin, continue to be governed by
the pre-existing judicial approach outlined
above.[20]

The new statutory requirements effectively mean that once a plaintiff has
established a prima facie case of discrimination or harassment, the burden of
proof shifts to the defendant to convince the court that racial discrimination
was not a factor in the decision or treatment in question. While it is clear
that this section alters the existing law to the extent that a court is now
required, rather than simply permitted, to find in favour of the plaintiff when
the respondent fails to provide an adequate explanation to rebut the prima facie
evidence,[21] there remains a
significant degree of confusion as to what facts must be established by the
plaintiff before the burden of proof is shifted to the respondent.

8.3.3 The Requirements of a Prima Facie Case

In some cases, the British courts have suggested that a prima facie case is
only established, and the burden shifted to the defence, once the plaintiff has
established all the elements of the offence. In Madarassy v Nomura
International
, the court stated that merely proving “a difference
in status and a difference in treatment only indicate a possibility of
discrimination. They are not, without more, sufficient material from which a
tribunal ‘could conclude’ that, on the balance of probabilities, the
respondent had committed an unlawful act of discrimination.”
In
addition to proving the plaintiff was treated differently to those of a
different race (or, in this case, gender), it is also necessary for the
plaintiff to prove that race (or gender) was the reason for the disparate
treatment.

In contrast, the court in Igen v Wong described the rationale behind
the statutory changes as making ‘good sense’ since “a
complainant can be expected to know how he or she has been treated by the
respondent whereas the respondent can be expected to explain why the complainant
has been so treated.”
Such an approach seems to suggest that the
plaintiff need only prove the difference in treatment in order to establish a
prima facie case, with the reasons for the treatment to be established by the
respondent at the second stage. This conclusion is born out by the finding in
this case that, where the plaintiff had shown only that they belonged to a
racial minority and were treated unreasonably by their white employer, it was
open to the court to draw an inference of discrimination, and thus shift the
burden of providing an explanation onto the
respondent.[22]

The guidelines established in Igen v Wong and affirmed in Madarassy go some way to resolving this confusion. These state that the
plaintiff must prove all the elements of the offence, showing “facts
from which conclusions could be drawn that the respondent has treated the
claimant less favourably on the grounds of race”
before the burden of
proof shifts to the respondent.[23] They thus require the plaintiff to show both less favourable treatment, and
facts that would allow the court to conclude that the less favourable treatment
was on racial grounds. At the same time, the plaintiff’s prima facie case
need not be established by direct proof, which is unlikely to be available, but
may depend upon inferences available from the primary
facts.[24] Where the plaintiff can
show only that they come from a racial minority, and were treated differently,
it seems that the pre-amendment case law will continue to apply and, as a matter
of ‘common sense’, the court will in some circumstances be able to
infer from these facts that the treatment was based on
race.[25] At this point, the burden
of proof will shift to the respondent to disprove the allegations of racial
discrimination.

8.3.4 The Effect of Shifting - or Failing to Shift - the Burden of
Proof

Once the onus of proof is transferred to the respondent, it imposes quite a
heavy burden. The respondent must “prove, on the balance of
probabilities, that the treatment was in no sense whatsoever on the grounds of
(race)”
.[26] Moreover,
while inferences might be sufficient for the plaintiff at the initial stage,
more direct evidence may be expected from the respondent. “Since the
facts necessary to prove an explanation would normally be in the possession of
the respondent, a tribunal would normally expect cogent evidence to discharge
that burden of
proof”.[27]

Even in cases where the complainant fails to make out a prima facie case,
this will not necessarily mean that their claim will not succeed. This is
because, when the court is assessing whether a prima facie case has been made
out, it is obliged to ignore any explanation offered by the defendant. In some
cases, however, if the defendant’s explanation itself reveals a
discriminatory line of reasoning or is demonstrably fabricated, the explanation
itself will lend weight to the plaintiff’s case. It is possible,
therefore, for the plaintiff to fail at the initial stage to shift the burden of
proof onto the respondent, but still ultimately succeed in proving
discrimination on the balance of
probabilities.[28]

8.3.5 Further Complications: The Relevant Comparator

Before deciding whether the complainant has established a prima facie case
sufficient to shift the burden of proof, the court will consider all the
evidence of both parties, excluding only the defendant’s explanation for
why the treatment occurred.[29] In
some cases, it may be difficult to decide which evidence should be ignored at
this stage, since evidence adduced by the respondent to show that the plaintiff
was not subject to different treatment may also be evidence of an alternative,
non-racial explanation for the respondent’s actions. For example, if the
complainant asserts that she is the only racial minority employed by the
respondent, and the only employee to be demoted, the respondent may reply that
the reason the complainant was demoted was because she frequently failed to show
up for shifts. This argument is clearly an explanation, and would be ignored by
the court when assessing whether a prima facie case had been made out. The
respondent might also claim, however, that the complainant was treated
identically to (hypothetical or actual) non-minority employees, who would also
be demoted if they failed to show up for shifts. In this case, it is less
obvious that the employer is presenting an explanation, since the argument is
phrased in terms of denying the complainant was treated differently, and
disputing the relevance of the comparator group chosen by the complainant.

Those cases that attempt to distinguish between arguments regarding the
appropriate comparator (which may be taken into account at the first stage) and
explanations (which are relevant only once the burden of proof has shifted to
the respondent) often involve a great deal of highly complex and artificial
reasoning. In Laing v Manchester City Council, the court held that, since
it was so difficult to distinguish between these two types of evidence, and
since the allocation of the burden of proof was really only relevant when the
evidence of both parties was exactly matched, it made sense in most cases to
abandon the two stage test all
together.[30] Perhaps a better
solution, and one which seems to have been adopted in Dattani v West Murcia
Police
, is to exclude at the first stage of decision-making all of the
respondent’s evidence which “could properly be
described”
as explanations, even where such evidence is phrased as a
challenge to the complainant’s prima facie
case.[31] Such an approach avoids
artificial distinctions, and has little risk of causing injustice for the
respondent, since their evidence will be given full consideration at the second
stage of the decision making process.

8.3.6 Questionnaires

Even with a shifting burden of proof, it would still be possible for a
respondent to remain silent and refuse to give any explanation for the alleged
discriminatory acts, taking the tactical risk that the plaintiff will not be
able to establish a prima facie case. To assist claimants to make out their case
against such uncommunicative respondents, the U.K. legislature has established a
system of questionnaires. Under the Race Relations (Questions and Replies)
Order 1977
, a complainant may ask the respondent any question relating to
the allegation of race discrimination using a prescribed
form.[32] The plaintiff may
therefore ask the respondent to confirm that a particular event occurred, give
an explanation for why they were treated differently, or provide statistical
information about the racial makeup of the workforce in order to support a claim
of direct or indirect discrimination. Answers to these questions are admissible
in court, and a failure to respond or an ambiguous answer may allow the court to
draw an adverse inference against the party
concerned.[33]

8.4 The Burden of Proof in the United States and Canada

In the United States and Canada, a similar procedure has developed, which
requires the person accused of discrimination to explain or justify their
conduct once a prima facie case has been established. In cases where direct
discrimination is alleged,[34] the
deliberative process in both jurisdictions may be divided into three stages:

  1. The plaintiff establishes a prima facie case of racial discrimination.
  2. The respondent articulates a legitimate reason for the apparent difference
    in treatment.
  3. The plaintiff proves that the reason given by the respondent is a mere
    pretext, and that the real reason for the disparate treatment is race
    discrimination.[35]

Stage
1: The Prima Facie Case

A prima facie case has been described by the Canadian court as “one
which covers the allegations made, and which if believed, is complete and
sufficient for a decision in favour of the complainant in the absence of an
answer from the respondent.”
[36] Thus, as in the United Kingdom, the
defendant’s explanation is ignored at this initial stage.

The case of McDonnell
Douglas
,[37] which has been
cited in both U.S. and Canadian
jurisprudence,[38] sets out an
example of facts that would be sufficient to establish a prima facie case. It is
sufficient for the plaintiff to prove:

  • (i) that he belongs to a racial minority;
  • (ii) that he applied and was qualified for a job for which the employer
    was seeking applicants;
  • (iii) that, despite his qualifications, he was rejected; and
  • (iv) that, after his rejection, the position remained open and the
    employer continued to seek applicants from persons of complainant’s
    qualifications.[39]

The
plaintiff is not required, at this stage, to prove that the respondent’s
actions were motivated by race, but only to “carry the initial burden
of offering evidence adequate to create an inference that an employment decision
was based on a discriminatory
criterion...”.[40]
Thus,
in the example above, the plaintiff need not bring direct proof of
discrimination, but must “demonstrate at least that his rejection did
not result from the two most common legitimate reasons on which an employer
might rely to reject a job applicant: an absolute or relative lack of
qualifications or the absence of a vacancy in the job sought. Elimination of
these reasons for the refusal to hire is sufficient, absent other explanations,
to create an inference that the decision was a discriminatory
one.”[41]

Stage 2: The Legitimate Explanation

In both the United States and Canada, once the plaintiff has established the
prima facie case of discrimination, the onus falls on the defendant to provide a
reasonable explanation for why the allegedly discriminatory conduct occurred.
The burden, which shifts to the defendant at this stage is, however, only an
evidentiary burden.[42] The ultimate
burden of persuasion remains at all times with the plaintiff. Thus, the
defendant need only ‘articulate a legitimate explanation’ for the
act, rather than prove, on the balance of probabilities, that there was no
discriminatory motive.[43] This
contrasts to the approach in both the Race Relations Act 1976 (UK) and
the E.U. Directive, where the risk of non-persuasion shifts to the defendant
once the plaintiff’s prima facie case is made out.

Stage 3: Proving that Race is the Real Motivation

This third stage is often described as placing an onus on the plaintiff to
rebut the legitimate explanation offered by the defendant. Strictly speaking,
however, proving that the defendant’s explanation is false is neither
necessary nor sufficient to establish a claim of racial discrimination.

Under both American and Canadian law, an act is unlawful if it is motivated
by race, regardless of whether other factors also motivated the
practice.[44] Thus, even where the
explanation offered by the employer is true, and the act in question was partly
motivated by a non-discriminatory cause, the plaintiff may still succeed if they
can obtain evidence showing that race was also a factor in the decision-making
process.[45] In many cases, however,
such direct evidence is unavailable, and it is easier for the plaintiff to
establish that the defendant has given a false explanation in order to
indirectly infer that the real reason for the difference in treatment was racial
discrimination.

There has been some debate, particularly within the United States, over
whether a plaintiff who establishes a prima facie case and then proves that the
defendant’s explanation is false is therefore automatically entitled to
succeed, or whether the plaintiff must also provide direct evidence of racial
bias. In the Supreme Court case of Reeves, the court held that “a plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may
permit the trier of fact to conclude that the employer unlawfully
discriminated.”[46]
At the
same time, such evidence will not always be sufficient, since there may be
instances where the evidence reveals a different, non-discriminatory reason for
the employer’s decision, which is more probable than the discrimination
alleged by the plaintiff or the explanation given by the defendant. The tribunal
could conclude, for example, that the plaintiff was fired due to personal
animosity or incompetence, even where these explanations are not put forward by
the defence.[47] Nonetheless, the
court also emphasised that “once the employer’s justification has
been eliminated, discrimination may well be the most likely alternative
explanation, especially since the employer is in the best position to put forth
the actual reason for its
decision.”[48]

8.5 Indirect Discrimination

The burden of proof with regards to indirect discrimination often follows
from the way in which the test for such discrimination in constructed. In the
United Kingdom, for example, the statutory test is as follows:

(1A) A person also discriminates against another if... he applies to that
other a provision, criterion or practice which he applies or would apply equally
to persons not of the same race or ethnic or national origins as that other,
but - 

(a) which puts or would put persons of the same race or
ethnic or national origins as that other at a particular disadvantage when
compared with other persons,

(b) which puts that other at that disadvantage, and

(c) which he cannot show to be a proportionate means of achieving a
legitimate aim.
[49]

Similarly, the Civil Rights Act of 1991 in the United States provides
that:

An unlawful employment practice based on disparate impact is
established... only if:

  • (i) a complaining party demonstrates that a respondent uses a particular
    employment practice that causes a disparate impact on the basis of race... and
    the respondent fails to demonstrate that the challenged practice is job related
    for the position in question and consistent with business
    necessity...[50]

In
both cases, the statute makes clear that the onus rests on the complainant to
prove that a condition has been imposed, which has a disproportionate impact on
a particular racial group. Once that has been established, the onus shifts to
the respondent to show that the condition is “consistent with business
necessity”
or “a proportionate means of achieving a
legitimate aim”
.

Similarly, in the Canadian context, once the claimant has shown that a
particular policy or condition has a disparate impact upon a particular racial
group, the onus falls on the respondent to prove, on the balance of
probabilities, that the policy is a bona fide occupational requirement or that
there is a bona fide justification for imposing that
condition.[51] This will require the
respondent to bring evidence to show that getting rid of the condition would
cause the respondent undue hardship, because of the financial costs or health
and safety implications
involved.[52]

The approach taken in each of these three jurisdictions seems to be based on
the principle that it is the respondent, rather than the plaintiff, who is best
placed to provide evidence of the conditions or policies necessary to achieve
the respondent’s legitimate aims or fulfil their business requirements.
This approach also avoids placing an obligation on the plaintiff to prove a
negative fact – that there is no reason why such a condition is necessary
– placing the onus on the respondent to prove a positive justification
where one exists. As stated in the Canadian case of O’Malley: “it is the employer who will be in possession of the necessary
information to show undue hardship, and the employee will rarely, if ever, be in
a position to show its
absence”.[53]

In contrast, in a complaint of indirect discrimination under the Australian Racial Discrimination Act 1975 (Cth), the burden of proof remains on the
plaintiff at every stage. Thus, even once the claimant has shown that the
respondent has imposed a condition that has an adverse effect upon people of the
complainant’s race or ethnic origin (and thereby affects their equal
enjoyment of human rights and fundamental freedoms), the complainant must also
prove that this condition is, in the circumstances,
unreasonable.[54] To do so, the
complainant must prove that the term or condition is “not rational,
logical or understandable”
. Merely proving that an alternative, less
discriminatory approach exists, which would achieve the same effect, is not
sufficient if both means could be considered rational approaches to achieving
the goal in question.[55]

8.6 Standards of Proof and Standards of Evidence

8.6.1 Australia

The ease with which a plaintiff alleging race discrimination will be able to
make out their case depends not only on which party bears the onus of proof, but
also on what standard of evidence will be considered sufficient by the courts to
discharge that burden.

The general standard of proof applicable to civil cases in Common Law
jurisdictions is usually described as ‘the balance of
probabilities’, and requires the tribunal of fact to be satisfied that it
is more likely than not that a particular fact occurred. This is in contrast to
the more stringent criminal standard of ‘beyond a reasonable doubt’.
In Australia, while the courts have continually emphasised that there is
‘no third standard of proof’, it is generally accepted that the
strength of evidence required to satisfy a court as to the existence of a given
fact may vary depending on the nature of what is to be
proved.[56]

In the often cited case of Briginshaw v Briginshaw, Justice Dixon
stated that:

“when the law requires the proof of any fact, the tribunal must feel
an actual persuasion of its occurrence or existence before it can be found.
...(R)easonable satisfaction is not a state of mind that is attained or
established independently of the nature and consequences of the fact or facts to
be proved. The seriousness of an allegation made, the inherent unlikelihood of
an occurrence of a given description, or the gravity of the consequences flowing
from a particular finding are considerations which must affect the answer to the
question whether the issue has been proved to the reasonable satisfaction of the
tribunal. In such matters 'reasonable satisfaction' should not be produced by
inexact proofs, indefinite testimony, or indirect
inferences.”[57]

This relationship between the nature of what is to be proved, and the
standard of evidence required, has also been codified in the Evidence
Act
, which states that:

(1)  In a civil proceeding, the court must find the case of a party
proved if it is satisfied that the case has been proved on the balance of
probabilities.

(2)  Without limiting the matters that the court may take into
account in deciding whether it is so satisfied, it is to take into account:

                    
(a)  the nature of the cause of action or defence; and

                    
(b)  the nature of the subject-matter of the proceeding; and

                    
(c)  the gravity of the matters
alleged.[58]

The Briginshaw test has been interpreted as requiring a particularly
high standard of evidence where the plaintiff seeks to prove that the defendant
has engaged in serious misconduct or where the consequences for the defendant of
a finding in the plaintiff’s favour would be particularly grave. It has
been applied “where there are serious accusations (murder, sexual abuse
of children, corruption... gross medical negligence or fraud) or where the
effect of the finding would be permanent and damaging to the respondent’s
future (loss of liberty, racial identity, sexual functioning or
profession).”[59]

The Briginshaw test has also been frequently invoked in discrimination
proceedings. As Hunyor notes: “(t)he courts have generally regarded
allegations of racial discrimination as being of such seriousness that they
require a higher standard of evidence... to reach a state of ‘reasonable
satisfaction’”
.[60] This is understandable in cases where the respondent is alleged to have
deliberately and maliciously discriminated against the complainant on the
grounds of race, as this sort of accusation of racism might be thought to carry
a certain amount of social stigma. What remains unclear, however, is whether the Briginshaw higher standard of evidence will also be required even in
those cases which only raise issues of unconscious or systematic discrimination,
and do not accuse the respondent of deliberate misconduct.

In several instances, it appears that the Briginshaw higher standard
of evidence has been automatically required whenever racial discrimination is
alleged, regardless of any analysis of the seriousness of the allegation or the
consequences involved. Thus, for instance, in Sharma v Legal Aid
Queensland
it was accepted without argument that “the standard of
proof for breaches of the Racial Discrimination Act 1975 is the higher standard
referred to in Briginshaw v Briginshaw
(1938)”
.[61]

On the other hand, at least one Federal Court case has distinguished between
claims of racial discrimination that involve serious allegations of misconduct,
and those that should be treated according to the normal standards of evidence.
In the case of Macedonian Teachers Association of Victoria Inc v HREOC,
the court held that “(t)he mere finding that a government has
contravened a provision of an anti-discrimination statute without considering
the circumstances in which the contravention occurred is not, in our view,
sufficient to attract the Briginshaw
test”
.[62] In this case,
the state government was accused of having unintentionally, and while acting
according to the best of intentions, discriminated against a particular ethnic
group. In this case, the court held, “(n)o issue of fraud or
impropriety was raised or needed to be determined”
, and the more
stringent standards of evidence described in Briginshaw were therefore
not appropriate.[63]

While this approach has been largely ignored in subsequent racial
discrimination cases (of which Sharma v Legal Aid Queensland is an
example),[64] recent cases
concerning sex and disability discrimination have drawn a similar distinction
between ‘serious’ allegations to which the Briginshaw test
applies and other discrimination claims, which do not warrant such a higher
evidentiary standard.[65] This
approach also accords with the way in which the Briginshaw standard has
been applied outside of the discrimination field. As De Plevitz notes in her
article analysing the application of this test, only in the area of
discrimination law has the Briginshaw test been applied as a matter of
course.[66] In all other areas of
law, the demand for a higher standard of evidence has been reserved for the most
serious of accusations or where the potential consequences for the defendant are
permanent or severe.[67]

8.6.2 Standards of Proof in Other Jurisdictions

The idea that the amount of evidence required to satisfy a tribunal of a
given fact may depend on the nature and seriousness of the fact alleged is not
unique to Australia. In Canada, the Supreme Court has adopted the comments of
Justice Dixon in Briginshaw, stating that, in a civil action: “before the tribunal can safely find the affirmative of an issue of
fact required to be proved it must be reasonably satisfied, and... whether or
not it will be so satisfied must depend upon the totality of the circumstances
on which its judgement is formed including the gravity of the consequences of
the finding.”[68]

In the United Kingdom, and to a limited extent in
Canada,[69] there has been some
debate over whether it is the degree of probability which changes according to
the gravity of the offence (requiring proof to a higher standard than the
balance of probabilities), or whether a more serious allegation simply requires
more convincing evidence in order to satisfy the court on the ordinary
standard.[70] Setting aside these
somewhat semantic distinctions, however, the U.K. courts have confirmed that: “the essential point that runs through the authorities is that the
civil standard of proof is flexible in its application and enables proper
account to be taken of the seriousness of the allegations to be proved and of
the consequences of proving
them.”
[71]

In Canada, this heightened standard of evidence has been referred to in cases
where sexual assault, insurance fraud and other charges of criminal misconduct
are alleged.[72] Similarly, in the
U.K., it has been invoked in civil cases, which involve allegations of serious
crimes such as sexual abuse or
murder,[73] and where the state is
seeking to significantly restrict the rights of an individual, by detaining them
as an illegal immigrant or placing them under an antisocial behaviour order or
sexual offender order.[74]

Both Canada and the United Kingdom thus possess a test for establishing the
standard of evidence which closely resembles, in function if not always in form,
the test described in Briginshaw, and is applied in similar
circumstances. Significantly, however, neither the Canadian nor the U.K. courts
have regularly invoked this standard with respect to allegations of racial
discrimination. Instead, both jurisdictions have obliged victims of
discrimination to prove their allegation according to the ordinary standard of
proof, and have accepted that such allegations will normally rely on indirect
inference, as direct evidence of discrimination is unlikely to be
available.[75] Indeed, in the United
Kingdom, it may be the defendant, rather than the plaintiff in a discrimination
case, who is expected to meet a higher standard of evidence once the plaintiff
has provided a prima facie case and shifted the onus of proof. As set out in the Igen v Wong guidelines: “Since the facts necessary to prove an
explanation would normally be in the possession of the respondent, a tribunal
would normally expect cogent evidence to discharge that burden of
proof.”
[76]

The situation in the United States is slightly different due to that fact
that the U.S. has expressly adopted a third standard of proof, rather than
relying on a shifting standard of
evidence.[77] This ‘middle
standard’, which falls between the normal civil standard of balance of
probabilities and the criminal standard of beyond a reasonable doubt, is
described as a standard of ‘clear and convincing
evidence’.[78] It has been
applied in cases where “the government seeks to take unusual coercive
action – action more dramatic than entering an award of money damages or
other conventional relief – against an
individual.”
[79] This may
include cases where the government seeks to have an individual committed for
mental illness, to remove an individual’s parenting rights, or take away
citizenship.[80] Like the higher
standard of evidence referred to in Briginshaw , it may also apply in
cases where fraud or other quasi-criminal wrongdoing is alleged, so as to reduce
the possibility of wrongfully tarnishing the defendant’s
reputation.[81] This higher standard
of proof may also be expressly required by
statute.[82]

Once again, while this higher standard of proof exists, it has not been
generally applied to discrimination
cases.[83] As stated by the U.S.
Supreme Court in Price Waterhouse v Hopkins: “Conventional rules
of civil litigation generally apply in Title VII cases... and one of these rules
is that parties to civil litigation only need to prove their case by a
preponderance of
evidence.”[84]
Thus, once
again, in contrast to the approach taken by the Australian courts, the standard
of evidence required to establish a claim of race discrimination is the ordinary
civil standard.

While all four of the national jurisdictions considered in this paper apply a
higher standard of evidence (or require a higher standard of proof) for the most
serious of civil claims, this higher standard is not commonly applied outside of
Australia, to allegations of racial discrimination. The practical effect of this
difference is hard to quantify. Since most discrimination cases involve complex
issues of credibility and evidence, it is hard to compare outcomes across
jurisdictions, and state with any degree of certainty that a case decided one
way in a particular court would have been decided differently in another.
Nonetheless, it seems clear that the Australian courts are alone amongst the
jurisdictions considered in expressly applying a higher standard of evidence to
some, if perhaps not all, allegations of racial discrimination. When this is
combined with the inflexible nature of the burden of proof, which remains on the
plaintiff throughout, it is unsurprising that claims of discrimination have
proved difficult to establish.


[1] Examples taken from: Williams C
R, ‘Burdens and Standards in Civil Litigation’ (2003) 25(2) Sydney Law Review 165.
[2]Racial Discrimination Act 1975 (Cth) s
9(1).
[3] Gaze B, ‘Has the
Racial Discrimination Act contributed to eliminating racial discrimination?
Analysing the litigation track record 2000-2004’ (2005) 11(1) Australian Journal of Human Rights 171 at paragraph
50.
[4] See discussion of
successful race discrimination cases in Hunyor J, ‘Skin-deep: Proof and
Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law
Review 535 at 535; and Gaze B, ‘Has the Racial Discrimination Act
contributed to eliminating racial discrimination? Analysing the litigation track
record 2000-2004’ (2005) 11(1) Australian Journal of Human Rights 171.
[5]Concluding Observations
of the Committee for the Elimination of Racial Discrimination: Australia,
UN
Doc CERD/C/AUS/CO/14 (14 April 2005) at
15.
[6]Workplace Relations Act
1996
(Cth) s 659(2)(f).
[7]Workplace Relations Act 1996 (Cth) s
664.
[8]Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin
[2000] OJ L180/22, art
8(2).
[9]Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin
[2000] OJ L180/22, art
8(1).
[10]Council Directive
2000/43/EC of 29 June 2000 implementing the principle of equal treatment between
persons irrespective or racial or ethnic origin
[2000] OJ L180/22, art 8(3)
and (5).
[11]Council
Directive 2000/43/EC of 29 June 2000 implementing the principle of equal
treatment between persons irrespective or racial or ethnic origin
[2000] OJ
L180/22, cl 15.
[12] For a
history of how the burden shifting principle has developed in ECJ jurisprudence,
particularly arising out of sex discrimination and equal pay cases, see:
Houtzager D, Shifting Perspectives: Changing the Burden of Proof in Racial
Equality Cases
(2006).
[13]Timishev v Russia (2005) Eur Court HR 55762/00 and 55954/00, at para
57.
[14] Espin E ‘Burden of
Proof in Council Directives 2000/43/EC and 2000/78/EC on equal treatment’
(Working Paper, Academy of European Law, 2005) at 3.
http://www.era.int/web/en/resources/5_2341_2279_file_en.3066.pdf (accessed 12/11/07).
[15] Neil LJ King v Great Britain-China Centre [1991] IRLR 513 at 518 as cited in Strathclyde Regional Council v Zafar [1997] UKHL
54.
[16] Neil LJ King v Great
Britain-China Centre
[1991] IRLR 513 at 518 as cited in Strathclyde
Regional Council v Zafar
[1997] UKHL
54.
[17]Strathclyde Regional
Council v Zafar
[1997] UKHL
54.
[18]Race Relations Act
1976 (Amendment) Regulations 2003
SI
2003/1626.
[19]Race Relations
Act 1976
(UK) c 74 ss 54A and 57ZA, which apply respectively to
discrimination claims before employment tribunals and county or sheriff
courts.
[20] For a description of
Directive and non-Directive grounds of discrimination, see above at
3.1.
[21]Madarassy v Nomura
International Plc
[2007] EWCA Civ 33 at
60.
[22] See Igen v Wong [2005] ICR 931 at paras
49-51.
[23]Igen v Wong [2005] ICR 931 at annex cl
9.
[24]Igen v Wong [2005]
ICR 931 at annex cls 3 and
4.
[25] See above note
15:“a finding of discrimination and a finding of a difference in race
will often point to the possibility of racial
discrimination”.

[26]Igen
v Wong
[2005] ICR 931 at annex cl
11.
[27]Igen v Wong [2005] ICR 931 at annex cl
13.
[28] Laing v Manchester
City Council
[2006] IRLR 748 at para
77.
[29]Laing v Manchester
City Council
[2006] IRLR 748 at para
59.
[30]Laing v Manchester
City Council
[2006] IRLR 748 at paras
73-75.
[31] See Dattani v
Chief Constable of West Mercia Police
[2005] IRLR 327 at para 40 for an
example which suggests this
approach.
[32]Race Relations
(Questions and Replies) Order 1977
SI 1977/842 as cited in Galbraith-Marten
J ‘The Fight Against Discrimination in Practice: Shifting the Burden of
Proof and Access to Evidence’ (Working Paper, Academy of European Law,
2005) at 36.
http://www.era.int/web/en/resources/5_1095_4982_file_en.7063.pdf (accessed 12/11/07).
[33]Race
Relations Act 1976
(UK) c 74 s 65(2)(b) as cited in Galbraith-Marten J
‘The Fight Against Discrimination in Practice: Shifting the Burden of
Proof and Access to Evidence’ (Working Paper, Academy of European Law,
2005) at 37.
http://www.era.int/web/en/resources/5_1095_4982_file_en.7063.pdf (accessed 12/11/07).
[34] Indirect discrimination will be discussed below at
8.5.
[35] See eg McDonnell
Douglas Corp v Green
411 US 792 (1973), discussed in Whitman R S,
‘Clearing the Mixed-Motive Smokescreen: An Approach to Disparate Treatment
under Title VII’ (1989) 87(4) Michigan Law Review 863 at
867-868.
[36]Lincoln v Bay
Ferries Ltd
2004 FCA 204 (CanLII) at
17.
[37]McDonnell Douglas
Corp v Green
411 US 792
(1973).
[38] See eg Israeli v
Canada (Canadian Human Rights Commission)
1983 CanLII 5
(CHRT).
[39]McDonnell Douglas
Corp v Green
411 US 792 (1973) at
12.
[40]Teamsters v United
States
431 US 324 (1977) at II
A.
[41]Teamsters v United
States
431 US 324 (1977) at footnote
44.
[42]Texas Department of
Community Affairs v Burdine
450 US 248 (1981) as cited in; Green T K,
‘Making Sense of the McDonnell Douglas Framework: Circumstantial Evidence
and Proof of Disparate Treatment under Title VII’ (1999) 87(4) California Law Review 983 at 987-988. See also (in the Canadian context) Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at V; “there is an evidentiary onus on the Respondent to provide an explanation
of events...”
.
[43] Whitman R S, ‘Clearing the Mixed-Motive Smokescreen: An Approach to
Disparate Treatment under Title VII’ (1989) 87(4) Michigan Law
Review
863 at 868.
[44] 42
USC s 2000e-2(m). In the Canadian context, see Almeida v Chubb Fire Security
Division of Chubb Industries Ltd
(1984) 5 CHRR D/2104 at 2105 as cited in Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at
IX.
[45] But note that, in the
United States, the court may not find in favour of the plaintiff, or may not
order relief, if the defendant can establish that they would have made the same
decision even if an impermissible factor such as race had not been taken into
account. See discussion of Mt Healthy City School District Board of Education
v Doyle
429 US 274 (1977) in Whitman R S, ‘Clearing the Mixed-Motive
Smokescreen: An Approach to Disparate Treatment under Title VII’ (1989)
87(4) Michigan Law Review 863 at
875-877.
[46] O’Connor J, Reeves v Sanderson Plumbing Products Inc 530 US 133 (2000) at paragraph
15.
[47] For an example of this
kind of finding in the Canadian jurisdiction, see the dissenting judgement of
Norton QC, Chandler and Joshi v Department of National Health and Welfare (unreported) TD 16/95, Decision rendered December 13 1995, Human Rights
Tribunal.
http://www.chrt-tcdp.gc.ca/search/view_html.asp?doid=225&lg=_e&isruling=0 (accessed 5/11/07).
[48] O’Connor J, Reeves v Sanderson Plumbing Products Inc 530 US 133
(2000) at paragraph 15.
[49]Race Relations Act 1976 (UK) c 74 s 1(1A). Note that this section applies
only to directive grounds, however the non-directive definition (s 1(1)(b))
similarly requires the respondent to show that the provision is justified on
non-racial grounds.
[50] 42 USC s
2000e-2 (k)(1)(A)(i).
[51]B.C. (Superintendent of Motor Vehicles) v B.C.(Council of Human Rights) [1999] 3 SCR 868 at para
20.
[52] Canadian Human Rights
Act,
RS 1985, c H-6, ss 15(1)(a), 15(1)(g) and
15(2).
[53]Ontario Human
Rights Commission v Simpson-Sears
1985 CanLII 18 (SCC) at
28.
[54]Australian Medical
Council v Wilson
(1996) 68 FCR 46 at 62; cited in Human Rights and Equal
Opportunity Commission Federal Discrimination Law (2005) at 3.2.3
(d).
[55] Ibid.
[56] See eg Neat
Holdings Pty Ltd v Karajan Holdings Pty Ltd
(1992) 110 ALR 449 at 449-50, as
cited in De Plevitz L ‘The Briginshaw Standard of Proof in
Anti-Discrimination Law: Pointing With a Wavering Finger’ (2003) 27(2) Melbourne University Law Review 308.
[57]Briginshaw v
Briginshaw
(1938) 60 CLR 336.
[58]Evidence Act 1995 (Cth) s 140A.
[59] De Plevitz L
‘The Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing
With a Wavering Finger’ (2003) 27(2) Melbourne University Law
Review
308 at IV.
[60] Hunyor
J, ‘Skin-deep: Proof and Inferences of Racial Discrimination in
Employment’ (2003) 25(4) Sydney Law Review 535 at
540.
[61]Sharma v Legal Aid
Queensland
[2001] FCA 1699 at 62. See also the discussion of cases in the
Human Rights and Equal Opportunity Commission, Federal Discrimination Law
2005
(2005) at 6.15.1.
[62] Macedonian Teachers Association of Victoria Inc v HREOC (1999) 91 FCR 47 at
50-51; as cited in Hunyor J, ‘Skin-deep: Proof and Inferences of Racial
Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535 at
550.
[63] Ibid.
[64]Sharma v Legal Aid
Queensland
[2001] FCA
1699.
[65] See discussion of
cases in Human Rights and Equal Opportunity Commission, Federal
Discrimination Law 2005: Supplement 1 March 2005 – 1 July 2007
(2007)
at 6.15.
[66] De Plevitz L
‘The Briginshaw Standard of Proof in Anti-Discrimination Law: Pointing
With a Wavering Finger’ (2003) 27(2) Melbourne University Law
Review
308.
[67] Ibid.
[68]Smith v Smith [1952] 2 SCR 312 at 331.
[69] See
particularly R v Oakes 1986 CanLII 46 (SCC) at 67 which has been cited in
support of the argument that there are “different degrees of
probability depending on the nature of the
case”
.
[70] See
discussion of caselaw in An, R (on the application of) & Anor v Secretary
of State for the Home Department & Ors
[2005] EWCA Civ 1605 (on the
application of) at 36 et
seq.
[71] Ibid at
59.
[72] See eg Kruska v
Manufacturers Life Insurance Company
(1984) 54 BCLR 343 at 353-54; B(D) v
Canada (Attorney General)
2000 SKQB (CanLII) at 17; and PL v College of
Physicians and Surgeons of the Province of Alberta
1999 ABCA 126
(CanLII).
[73] See eg Dellow’s Will Trusts [1964] 1 WLR
451.
[74] See eg R v Secretary
of State for the Home Department, ex p Khawaja
[1984] AC 74 at 113F-114C as
cited in An, R (on the application of) & Anor v Secretary of State for
the Home Department & Ors [2005] EWCA Civ 1605
; and Gough v Chief
Constable of the Derbyshire Constabulary
[2002] QB
1213.
[75] See for example Basi v Canadian National Railway 1988 CanLII 108 (CHRT) at VI where it
was stated that “an inference of discrimination may be drawn where the
evidence offered in support of it renders such as inference more probable than
the other possible inferences or
hypotheses”.

[76]Igen v Wong [2005] ICR 931 at annex cl
13.
[77] Despite this, the
standard itself ‘clear and convincing evidence’ sounds more like a
standard of evidence than a standard of proof, if a meaningful distinction could
be drawn between the two. It is unlike the Briginshaw standard, however,
in the sense that it is not a flexible test that might be applied to all
decisions in civil cases, but rather a set standard which will be applied in
particular circumstances.
[78]Addington v Texas 441 US 418 (1979) at
424.
[79]Price Waterhouse v
Hopkins
490 US 228 (1989) at
253.
[80] See eg Addington v
Texas
441 US 418 (1979); Santosky v Kramer 455 US 745 (1982); Schneidrman v United States 320 US 118
(1943).
[81]Addington v
Texas
441 US 418 (1979) at
424.
[82] See eg Antiterrorism
and Effective Death Penalty Act of 1996
28 USC 2254
(e)(1).
[83] For a case in which
the plaintiff alleging discrimination has been held to this higher standard see Miller-El v Dretke 545 US 231 (2005), which involved a convicted prisoner
attempting to secure a new trial by proving that their original trial was marred
by discrimination in the jury selection process. In this cases, the Antiterrorism and Effective Death Penalty Act of 1996 stated that any
factual finding made by a State court would be assumed to be correct, and the
plaintiffs were required to produce clear and convincing evidence to overturn
this assumption.
[84]Price
Waterhouse v Hopkins
490 US 228 at 253.