Avoidance, Withdrawal and Equality Law: Fundamental Challenges to the Legal Framework

Equality law primarily relies on individual enforcement to address discrimination and unequal treatment at work. However, few people who experience discrimination choose to engage with legal mechanisms. This article draws on ideas of avoidance and withdrawal behaviour to explain the limited utilisation of legal claims mechanisms to address discrimination. Utilising empirical data from a multi-year comparative socio-legal mixed methods study of the enforcement of age discrimination law in the United Kingdom and Australia, it argues that avoidance and withdrawal behaviour represent fundamental challenges to the utility of individual legal claims mechanisms. It argues for the need to move beyond individual enforcement, including through the adoption and expansion of positive equality duties, to shift the burden of legal enforcement off individuals.