A Critical Research Analysis of Race Discrimination on Employers by Firms Operating in the UK
EssayChat / Sep 3, 2018
Worldwide, labor is widely understood as essential to individual subsistence and welfare. Particularly in Europe, inclusion in the labor market also works to assure some degree of social and economic inclusion. This is especially so for those of the minority status and immigrants, as this helps to integrate them into society. "Nevertheless, [minority groups' and immigrants'] overrepresentation in the ranks of the long-term unemployed and socially excluded reflects the economic and political costs associated with lack of integration." Their lack of inclusion in mainstream society works to create further oppression and economic disadvantage.
Discrimination not only poses economic and social limitations, but it has immense emotional and psychological ramifications that can grow more severe over time. For example, in describing outcomes of discrimination, Barry M. Goldman et al. write that "[m]any theories suggest that perceiving discrimination or prejudice can negatively affect the psychological and physical health of its targets...Past research on physical health and discrimination report a negative effect of perceived discrimination on blood pressure...heart disease...and self-assessed state of health ...More recently, Pavalko, Mossakowki, and Hamilton (2003) conducted a longitudinal study that found that perceptions of discrimination negatively affect perceiver health, even when controlling for prior physical and emotional health, job characteristics, and job discrimination. Specifically, women who perceived that they were subject to discrimination between 1977 and 1982 had a 50% greater chance of having some type of physical limitation in 1989 than women who did not report experiencing discrimination." It is clear that though discrimination is a social issue of tremendous importance, its impact to those who experience it is well documented, though these mechanisms are not fully understood. Additional research is needed to clarify the relationship between the experience of discrimination and individual outcomes. On the social level, policy must address and aim to eliminate discrimination.
Concerns about discrimination and the treatment of those in minority groups have developed in a variety of areas, particularly migration. Out of these concerns, much law has developed in efforts to address them, with employment discrimination developing out of these efforts. Because of the impact of hiring and employment discrimination on immigrants and people of colour, anti-discrimination law clearly takes great import. However, dissension still occurs over the best use and purpose of such law. For example, it is not clear whether the emphasis should be on treatment of those who are of minority status or on outcomes. While some take the stance that legislation has been created to ensure that all are treated equally in order to support fairness and economic inclusion, others argue that the emphasis of employment discrimination law should be to account for past exclusions and wrongs, and that equal treatment alone will not serve to bring the oppressed of the same earning power as others, nor adequately compensate for past wrongs.
As Fox describes, discrimination is "draws on different combinations of biological and cultural indicia to uphold and reproduce systems of racial domination." Discrimination can be further defined as a complex relationship between these biological and cultural markers and the significance those are given within societies, sustaining systematic racial oppression. Though this definition may be somewhat clear, individual instances of discrimination can be challenging to distinguish and quantify. For example, in describing his efforts to explore discrimination, Drydakis writes, "The traditional research technique in social sciences involves decomposing labour data into explained components and unexplained residuals...If the estimated differential cannot be fully explained by independent variables, then discrimination is inferred...The main criticism of this method is that it provides no conclusive proof of discrimination as long as all other relevant variables have not been identified...However, the major advantage of field experiments are that they allow for more control over characteristics that are thought to be relevant in decision-making than are possible to take into account in conventional ex-post regression modelling. Indeed, it has been acknowledged that field experiments may catch economic agents in the very act of discrimination." Due to the nature of discrimination, it is challenging to research at a systemic level, and efforts to research it have found mixed success, often due to its covert nature and the reluctance of those who discriminate to be identified. Challenges with quantitatively proving discrimination creates greater challenges still.
With this in mind, one can say that discrimination law attempts to provide to all citizens a similar level of access to opportunities, including employment. It is a basic premise of such law that individuals should not be treated differently due to particular qualities, especially when those qualities are legally protected characteristics. Such characteristics are protected because they tend to form the basis of discrimination, and they can include qualities such as sex, sexual orientation, religion, gender, and race.
Specific legislation arises as significant in the efforts to address racial discrimination. Currently, the Treaty on the Functioning of the European Union disallows discrimination based on national origin. It also provides the authority to address discrimination based on other protected statuses. However, it was discrimination predicated on national background that was first and most widely recognized in EU treaties. Other protected classes were initially mentioned in the Amsterdam Treaty.
2000 saw the implementation of two directives, the Employment Equality Directive and the Racial Equality Directive. While the employment equality directive works to protect all protected classes in the area of employment access, the Racial Equality Directive acts to protect citizens from racial discrimination in a variety of contexts, including employment.
The Lisbon Treaty, which was adopted in 2009, attempted to integrate anti-discrimination measures throughout the EU policy with the use of a horizontal clause. EU citizens are provided with the ability to seek legal redress if they find that they have been discriminated against, particularly when it is evident that they have been treated differently from others in their situation.
The modern efforts to redress discrimination derive from older EU law, which has many fields pertaining to minority rights. These earlier governance measures have set a foundation in which entitlements are assured and required, and they typically required EU states to act in particular ways and to create consistent legislation. Two of the areas in which the influence of these older measures is obvious is in anti-discrimination and anti-immigration law. For example, articles 12 and 18 EC directly derived from such measures and they provide each EU citizen with the legal ability to travel between each EU member State, as well as to live in them.
However, despite this origin in older governance measures and the emphasis on consistency and harmonisation in legislation, this has not always been successful. For example, Guliyeva describes the challenges in creating uniform standards protecting minority rights. Specifically, she cites as some of these issues double standards between those Member States who are recently joined, as opposed to those who have belong to the EU for longer periods of time. She also cites political sensitivity as an issue influencing the development of consistent minority rights protections across EU States.
While challenges with implementing such law exist, particularly concerning factors such as regulation, anti-discrimination laws are widely acknowledged as being central to state efforts to combat discrimination, particularly that predicated on race. Such policy provides a variety of roles to the public sector in increasing access in economic and political means. This has been found to be true on both the EU level and the member state level.
The first legislation directly addressing racial discrimination within the United Kingdom was introduced in 1965, in the form of the Race Relations Act. This Act prohibited the refusal of service or unreasonable delay in service, based on color, race, or national identity, defining discrimination as follows: "if on the ground of colour, race or ethnic or national origins he treats that other, in any situation to which section 2, 3, 4 or 5 below applies, less favourably than he treats or would treat other persons, and in this Act references to discrimination are references to discrimination on any of those grounds." It further prohibited against incitement to racial hatred. These acts were defined as civil offenses. In 1968, the Race Relations Act was bolstered as need to address discrimination through policy was recognised, to additionally include prohibition against employment discrimination based on race, national or ethnic origin, or color. In its coverage of employment discrimination, the Act presents a nuanced piece of legislation, with provisions for causes of investigation and exceptions. This Act was significant in terms of addressing racial discrimination as a direct topic of legislation, creating president for further discrimination concerning race and national origin.
The Race Relation Acts of 1965 and 1968 were followed by the Race Relations Act of 1976. This version of the Act is different from the others most significantly in terms of it requiring public entities to enforce anti-discrimination measures. More specifically, this version of the Act permits an individual who has perceived that he or she is experiencing discrimination to submit a claim to an employment tribunal. Such tribunals deal with a variety of workplace complaints, from the commonplace to the rare. A tribunal proceeding is less formal than a court proceeding, as a single lawyer will chair the tribunal, paired with non attorneys. It is also more expedient and less costly to address disputes through tribunal, rather than through the conventional court system. It is typical that tribunals will include witness statements and witness testimony, including cross-examination. Discrimination law permits the claimants to gather information prior to the proceeding from the respondents. If discrimination is found, the employer will be recommended to redress the discrimination and potentially mandated to pay compensation. Furthermore, a 2003 law eased the burden of proof on claimants, which permits disadvantaged claimants to have more of a potential of success. The Race Relations Act of 1976 was further modified in 2000 to include discrimination by police and provisions for national security measures.
Many efforts to address discrimination have developed from the European Convention on Human Rights. This convention became effective in 1953, and all Council of Europe Member States were expected to abide by the provisions of the Convention. Article 14 describes discrimination, though in the context of a vast variety of potential biases. It mentions race as a potential point of discrimination, but it does not emphasize racial discrimination as a point of particular concern. Furthermore, those rights that are guaranteed to be free from discrimination are only those that are mentioned within the Convention. This can be understood to be limiting.
The Human Rights Act of 1998 represented an effort to manifest the provisions of the ECHR into British law. Article 14 of the Human Rights Act of 1998 states that "[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
This article stipulates that the rights provisioned in the convention must be supported by the state without any discrimination, including racial discrimination. However, this Article has also been critiqued for its perceived failure to provide an autonomous right to non-discrimination. However, this problem was recognized and addressed. As Howard writes, "[to] overcome this problem,
the Council of Europe's Committee of Ministers approved Protocol 12 to the ECHR. This Protocol, which opened for signature on 4 November 2000, contains an independent, freestanding right to non-discrimination in Article 1(1): 'The enjoyment of any right set forth by law shall be secured without discrimination on any grounds such as . . .' and then it mentions the same grounds as Article 14 ECHR. Both Article 14 and Protocol 12 give an open-ended or non-exhaustive list of grounds-'any grounds such as . . .'. This means that additional grounds could be recognised. Protocol 12 came into force on 1 April 2005." Paired with the Protocol, the Article became a more robust and effective piece of legislation. Through providing such an open-ended list of grounds, the legislation would be able to address unforeseen situations as they arose.
The European Union and the Council of Europe are distinct, as Howard emphasises, though both have taken efforts to address racial discrimination. The original intent of the European Community was to combine economic forces among European nations. "The European Union and the Council of Europe are quite different organisations, and were set up for different purposes. The European Community, now the European Union, was established in 1957 with economic cooperation as its primary aim. Since May 2004, when ten new states joined, it has 25 Member States. The Treaty establishing the European Community has, among other institutions, established a European Court of Justice." Currently, the European Community focuses on social issues, including anti-discrimination efforts.
However, points of uncertainty and questions still arose in connection with this legislation. For instance, it has been questioned whether the ECHR can feasibly protect human rights in a context of opposition from the society itself. For example, in relation to the Roma people, Kuhelj writes, "any top-down, government-sponsored initiative for improving Roma rights is met with stiff political resistance at the local level...State policy is developed through national discussion-speaking of the individual states' Roma policy coincides with questions of nationalism, national homogenization, and assimilation, which often become state policy." However, some research indicates that courts can initiate social change, as judges may feel more freedom than public officials to challenge social views in the interest of protecting minority rights. Still more research indicates that the emphasis on the limits possessed by the courts in creating social change is exaggerated.
Directives articulate goals while allowing for individual Member States to create their own legal measures to manifest those goals. The Racial Equality Directive of 2000 acts to further articulate and advance the goal of diversity. Specifically, sections 3 and 9 sought to further demonstrate accordance around the importance of diversity and to describe the impact of discrimination, reading:
(3) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.
(9) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.
This Directive was quickly drafted and adopted, in a space of roughly six months. The Proposal was quickly passed in part due to the right-wing Freedom Party entering the Austrian government. The Directive specifically prohibits against four manifestations of discrimination, including direct discrimination, indirect discrimination, harassment, and instruction of another to discriminate. In this manifestation of EU definitions of discrimination, indirect discrimination assumes a different form, being defined more broadly and with less need for production of evidence than was previously emphasized.
In writing about the Directive, Mark Bell situates it as occupying a position that is consistent with European labour law, but which also signifies the shift toward socially-oriented policy. "t[T]he Racial Equality Directive is particularly interesting, because it both shares many hallmarks of traditional European labour law as well as containing elements that suggest a shift towards a broader conception of European social law. The latter is especially manifest in the material scope of the Directive, which enters into precisely those aspects of national social policy normally side-stepped by EU social policy. For this reason alone, the Directive does not rest easily under the aegis of European labour law." The Directive can then be said to represent a shift in EU policy, as it more directly contributes to the execution of various national policies.
The Racial Equality Directive has it also been critiqued as containing loopholes, creating what Lahuerta calls a "hierarchy of equalities and of peoples." For example, she notes that Third Country Nationals (TCNs) are excluded from protection against discrimination on the basis of nationality. She also notes that protections for TCNs against religious discrimination is limited to the field of employment and is not as robust as that provided to others. While TCNs are protected against racial discrimination in employment, as well as in other venues, this is the strongest form of protection they receive, with protection enforced and with relatively few exceptions in existence. The issue that Lahuerta identifies is that throughout these forms of protection against discrimination for Third Country Nationals, they are not reinforced uniformly. They create what Lahuerta calls a "hierarchy of equalities." She argues that "from a financial perspective, it does not seem justified that legally resident TCNs, who are paying social security taxes to finance the welfare systems, are less protected against discrimination precisely, and only, for the fact of being 'outsiders'.The fear that TCNs may weaken our social security systems does not provide sufficient basis for such a restriction in so far that Member States can differentiate between non-resident and resident foreigners." As Lahuerta points out, efforts to legally address discrimination often hinge on who is defined as a citizen, yet this definition is, to some extent, influenced by ideas of race and culture which have defined who belongs and who does not. Her work illustrates the overlap between national identity discrimination and race discrimination, illustrating some of the difficulties in this legislation.
The Equality Act of 2006 is an act of the United Kingdom Parliament which applies to the United Kingdom. This Act gathers previous legislative protections against discrimination and it also serves to strengthen them. Some of the specific features of this Act include prohibition of discrimination of service on the grounds of religion or belief, it permitted the introduction of regulations prohibiting discrimination based on sexual orientation, and it emphasized the importance of gender equality. Additionally, the Act set up the Equality and Human Rights Commission, a statutory body and one of three primary accredited National Human Rights Institutions in the United Kingdom. One of the primary expectations of the EHRC was to emphasize the importance of human rights. In line with this mission, the organization observes and shares progress in Great Britain, specifically regarding how human rights are manifested from the treaties ratified by the UK. Such treaties include the European Convention on Human Rights and other international human rights treaties.
Section 1 of Article 21 of the EU Charter of Fundamental Rights reads, "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."
After the adoption of the Lisbon Treaty, the Charter of Fundamental Rights became legally binding within EU States. In addition to Article 21, the Treaty of Lisbon also contains many other articles that are important to anti-discrimination legislation. For example, Article 2 mentions equality as a foundational value of the Union, and Article 3 delineates an obligation to fight discrimination, instead promoting equality. This Article also describes the importance of diversity. As Howard notes, these mentions do not constitute any enforceable legal rights, but they do provide a context in which importance of equality to the EU is acknowledged. Articles 18 and 19 are also important within the Lisbon Treaty; Article 19 expands the abilities of Parliament, so that it is able to require consent before directives are adopted based on the Article. The Treaty also asked to consolidate bases for discrimination across existing legislation, making anti-discrimination legislation better able to be enforced. Article 8 stipulates that the state has an obligation to eliminate inequality, and Article 10 mainstreams this duty to various forms of discrimination.
In 2013, the Enterprise and Regulatory Reform Act included caste as an aspect of race, which is an amendment from previous definitions. This is particularly important because it addresses some of the loopholes concerning the overlap between race and nationality, which had previously failed to provide protections to some. An additional piece of 2013 legislation, the Employment Tribunal and Employment Appeal Tribunal Fees Order of 2013, is a point of concern to the Equality and Human Rights Commission, as it introduces substantial fees for employment tribunal hearings. It is the obligation of the claimants to pay these fees. Additionally, the very issuing of the claim also carries a heavy fee, with discrimination claims being subject to higher levels of fees. While some claimants may qualify for reduced fees or remission of fees, such fees can still discourage claimants from coming forth with their claims and may result in a lack of recourse for discrimination on the part of employers. Furthermore, the EHRC asserts that the introduction of these fees may compromise the rights of claimants under Article 6 of the EHRC , which ensures access to justice. They cite the number of race discrimination cases as dropping by 61% after the introduction of these fees in employment tribunals. Therefore, this may produce discrimination, as Article 6 stipulates the right to a fair trial and Article 4 stipulates a prohibition against discrimination in the enjoyment of rights.
Another point of concern is the existing limitation on legal aid funding. 'The UK Government had intended to introduce a residence test for civil legal aid...With certain exceptions, the test was designed to limit funding to people who are lawfully resident in the UK and who, at some point, have been lawfully resident for at least 12 months continuously. In the analysis of the UK Parliament's Joint Committee on Human Rights, certain vulnerable groups would be unable to prove that they satisfy the test, including those without documents to prove their immigration history and victims of trafficking whose status is disputed." With this policy, those who are most vulnerable to discrimination and who are most in need of assistance would not be eligible to receive it. Even when policy has been adapted to address discrimination, other bureaucratic policy may prevent its implementation.
Conclusion
The history of EU and UK anti-discrimination laws reflect an evolution in efforts to address many of the challenges that arise with legislating against discrimination. Historically, those in minority groups have had less access to integration in society, including within the venue of employment and labour. Furthermore, discrimination may always be challenging to effectively legislate against, as it can be difficult to describe, recognize, and prove. For example, Hirsch finds that even in cases when racial discrimination exists, not all of those who are being discriminated against will recognize it as such. Workers in specific groups and workers with a lower sense of entitlement, such as those who have not worked for the employer for as long or who do not belong to a union, are less likely to perceive unfair treatment as racial discrimination. The perception of discrimination can vary greatly across groups and in particular contexts, demonstrating that specifics are a key element in applying the law in such a way that discrimination legislation can be enforced. It is clear that as efforts to legislate anti-discrimination measures continue, additional research on this subject must be conducted, and those who have experienced discrimination must be consulted, as it is their experiences and voices that will shed light on this complex phenomenon, improving efforts to legislate.
The evolution of UK anti-discrimination law also reflects an understanding of what legislation is able to do and its purpose, as well as shifting understandings regarding discrimination, employment, and race itself. For example, the treatment of race as largely distinct from nationality has been cited as a weakness throughout this law, one which has recently been redressed. Recourse and outcomes to those who have experienced discrimination must also be considered when assessing the effectiveness of anti-discrimination legislation. For example, while the tribunal model has had some benefits to those facing discrimination, the introduction of exorbitant fees has arguably created a chilling effect on the willingness of employees to report discrimination or to pursue claims. It does little good to have robust and nuanced legislation in existence if the outcomes for these employees are not improved.
Not only does anti-discrimination law reflect understandings of race and discrimination; it also creates them. The relationship between law and social understandings is complex and relational. Social policy addresses social norms as it attempts to change them, and in this process, they also shape these norms. As discussions around race and identity intensify and societies move toward a place of better equality, UK anti-discrimination employment legislation is sure to continue to shift and change. As it does so, it will reveal current thought about equality and about the role of law in enforcing equality.
Discrimination takes a toll on societies as a whole, as well as specific groups of people. When some are economically oppressed and cannot thrive, the result is that an economically disadvantaged class is created, with greater need for social programs and less ability to contribute economically. More important than this is that fair consideration without discrimination based on a protected category is a fundamental human right. An equitable and just society is one in which policy ensures that all citizens are provided with equal opportunities. Furthermore, the research on the effects of discrimination suggest that discrimination is not only a social issue, but is also a public health concern. Efforts to eliminate discrimination must be maintained for the benefit and health of all.
References
Ahmed T, 'A Critical Appraisal Of EU Governance For The Protection Of Minority Rights' (2010) 17 International Journal on Minority and Group Rights
Bell M, 'Beyond European Labour Law? Reflections On The EU Racial Equality Directive' (2002) 8 European Law Journal
Brown A Erskine, 'A Qualitative Study Of Judgments In Race Discrimination Employment Cases' (2009) 31 Law & Policy
Chopin I, 'The Starting Line Group: A Harmonised Approach To Fight Racism And To Promote Equal Treatment' (1999) 1 European Journal of Migration and Law
Dembour M, 'Still Silencing The Racism Suffered By Migrants . . . The Limits Of Current Developments Under Article 14 ECHR' (2009) 11 European Journal of Migration and Law
Drydakis N, 'Estimating Ethnic Discrimination In The Labour Market Using Experimental Data' (2012) 12 Southeast European and Black Sea Studies Employment Equality Directive, 2000.
Enterprise and Regulatory Reform Act 2013
Equality Act 2006
Equality and Human Rights Commission, 'Race Rights In The UK: Submission To The UN Committee On The Elimination Of Racial Discrimination In Advance Of The Public Examination Of The UK'S Implementation Of ICERD' (Equality and Human Rights Commission 2016)
EU Charter of Fundamental Rights, Article 21, 2009
European Convention on Human Rights, Article 14, 1953
European Convention on Human Rights, Article 6, 1953
Fox J, L MoroşanuE Szilassy, 'Denying Discrimination: Status, 'Race', And The Whitening Of Britain's New Europeans' (2014) 41 Journal of Ethnic and Migration Studies
Geddes A, 'Britain, France, And EU Anti-Discrimination Policy: The Emergence Of An EU Policy Paradigm' (2004) 27 West European Politics
Goldman B and others, 'Employment Discrimination In Organizations: Antecedents And Consequences' (2006) 32 Journal of Management
Guild E, 'European Developments. The EC Directive On Race Discrimination: Surprises, Possibilities And Limitations' (2000) 29 Industrial Law Journal
Guliyeva G, 'Joining Forces Or Reinventing The Wheel? The EU And The Protection Of National Minorities' (2010) 17 International Journal on Minority and Group Rights
Haskovec, J, 'A beast of a burden? The New Eu Burden-of-Proof Arrangement in Cases of Employment Discrimination Compared to Existing U.S. Law' (2005) 14 Transnational Law & Contemporary Problems
Hirsh EC Lyons, 'Perceiving Discrimination On The Job: Legal Consciousness, Workplace Context, And The Construction Of Race Discrimination' (2010) 44 Law & Society Review
Howard E, 'Anti Race Discrimination Measures In Europe: An Attack On Two Fronts' (2005) 11 European Law Journal
Howard E, 'EU Equality Law: Three Recent Developments' (2011) 17 European Law Journal
Human Rights Act, 1998
Kuhelj A, 'Conflict Between Declared Roma Minority Rights And European Practice: Why The Legal Framework Doesn't Work In Reality?' (2012) 36 SSRN Electronic Journal
Lahuerta S, 'Race Equality And TCNs, Or How To Fight Discrimination With A Discriminatory Law' (2009) 15 European Law Journal
Race Equality Directive, 2000
Race Relations Act 1965
Race Relations Act 1968
Race Relations Act 1976
Race Relations Act 2000
'Race Rights in the UK' (Equality and Human Rights Commission, 2018)
Racial Equality Directive, 2000.
Ruzza C, 'Civil Society Actors And EU Fundamental Rights Policy: Opportunities And Challenges' (2013) 15 Human Rights Review The Amsterdam Treaty, 1999
The Employment Tribunal and Employment Appeal Tribunal Fees Order 2013
Treaty of Lisbon, Article 13, 2009
Treaty on the Functioning of the European Union, 1958
Discrimination not only poses economic and social limitations, but it has immense emotional and psychological ramifications that can grow more severe over time. For example, in describing outcomes of discrimination, Barry M. Goldman et al. write that "[m]any theories suggest that perceiving discrimination or prejudice can negatively affect the psychological and physical health of its targets...Past research on physical health and discrimination report a negative effect of perceived discrimination on blood pressure...heart disease...and self-assessed state of health ...More recently, Pavalko, Mossakowki, and Hamilton (2003) conducted a longitudinal study that found that perceptions of discrimination negatively affect perceiver health, even when controlling for prior physical and emotional health, job characteristics, and job discrimination. Specifically, women who perceived that they were subject to discrimination between 1977 and 1982 had a 50% greater chance of having some type of physical limitation in 1989 than women who did not report experiencing discrimination." It is clear that though discrimination is a social issue of tremendous importance, its impact to those who experience it is well documented, though these mechanisms are not fully understood. Additional research is needed to clarify the relationship between the experience of discrimination and individual outcomes. On the social level, policy must address and aim to eliminate discrimination.Concerns about discrimination and the treatment of those in minority groups have developed in a variety of areas, particularly migration. Out of these concerns, much law has developed in efforts to address them, with employment discrimination developing out of these efforts. Because of the impact of hiring and employment discrimination on immigrants and people of colour, anti-discrimination law clearly takes great import. However, dissension still occurs over the best use and purpose of such law. For example, it is not clear whether the emphasis should be on treatment of those who are of minority status or on outcomes. While some take the stance that legislation has been created to ensure that all are treated equally in order to support fairness and economic inclusion, others argue that the emphasis of employment discrimination law should be to account for past exclusions and wrongs, and that equal treatment alone will not serve to bring the oppressed of the same earning power as others, nor adequately compensate for past wrongs.
As Fox describes, discrimination is "draws on different combinations of biological and cultural indicia to uphold and reproduce systems of racial domination." Discrimination can be further defined as a complex relationship between these biological and cultural markers and the significance those are given within societies, sustaining systematic racial oppression. Though this definition may be somewhat clear, individual instances of discrimination can be challenging to distinguish and quantify. For example, in describing his efforts to explore discrimination, Drydakis writes, "The traditional research technique in social sciences involves decomposing labour data into explained components and unexplained residuals...If the estimated differential cannot be fully explained by independent variables, then discrimination is inferred...The main criticism of this method is that it provides no conclusive proof of discrimination as long as all other relevant variables have not been identified...However, the major advantage of field experiments are that they allow for more control over characteristics that are thought to be relevant in decision-making than are possible to take into account in conventional ex-post regression modelling. Indeed, it has been acknowledged that field experiments may catch economic agents in the very act of discrimination." Due to the nature of discrimination, it is challenging to research at a systemic level, and efforts to research it have found mixed success, often due to its covert nature and the reluctance of those who discriminate to be identified. Challenges with quantitatively proving discrimination creates greater challenges still.
With this in mind, one can say that discrimination law attempts to provide to all citizens a similar level of access to opportunities, including employment. It is a basic premise of such law that individuals should not be treated differently due to particular qualities, especially when those qualities are legally protected characteristics. Such characteristics are protected because they tend to form the basis of discrimination, and they can include qualities such as sex, sexual orientation, religion, gender, and race.
Specific legislation arises as significant in the efforts to address racial discrimination. Currently, the Treaty on the Functioning of the European Union disallows discrimination based on national origin. It also provides the authority to address discrimination based on other protected statuses. However, it was discrimination predicated on national background that was first and most widely recognized in EU treaties. Other protected classes were initially mentioned in the Amsterdam Treaty.
2000 saw the implementation of two directives, the Employment Equality Directive and the Racial Equality Directive. While the employment equality directive works to protect all protected classes in the area of employment access, the Racial Equality Directive acts to protect citizens from racial discrimination in a variety of contexts, including employment.
The Lisbon Treaty, which was adopted in 2009, attempted to integrate anti-discrimination measures throughout the EU policy with the use of a horizontal clause. EU citizens are provided with the ability to seek legal redress if they find that they have been discriminated against, particularly when it is evident that they have been treated differently from others in their situation.
The modern efforts to redress discrimination derive from older EU law, which has many fields pertaining to minority rights. These earlier governance measures have set a foundation in which entitlements are assured and required, and they typically required EU states to act in particular ways and to create consistent legislation. Two of the areas in which the influence of these older measures is obvious is in anti-discrimination and anti-immigration law. For example, articles 12 and 18 EC directly derived from such measures and they provide each EU citizen with the legal ability to travel between each EU member State, as well as to live in them.
However, despite this origin in older governance measures and the emphasis on consistency and harmonisation in legislation, this has not always been successful. For example, Guliyeva describes the challenges in creating uniform standards protecting minority rights. Specifically, she cites as some of these issues double standards between those Member States who are recently joined, as opposed to those who have belong to the EU for longer periods of time. She also cites political sensitivity as an issue influencing the development of consistent minority rights protections across EU States.
While challenges with implementing such law exist, particularly concerning factors such as regulation, anti-discrimination laws are widely acknowledged as being central to state efforts to combat discrimination, particularly that predicated on race. Such policy provides a variety of roles to the public sector in increasing access in economic and political means. This has been found to be true on both the EU level and the member state level.
Race Relations Act 1965
The first legislation directly addressing racial discrimination within the United Kingdom was introduced in 1965, in the form of the Race Relations Act. This Act prohibited the refusal of service or unreasonable delay in service, based on color, race, or national identity, defining discrimination as follows: "if on the ground of colour, race or ethnic or national origins he treats that other, in any situation to which section 2, 3, 4 or 5 below applies, less favourably than he treats or would treat other persons, and in this Act references to discrimination are references to discrimination on any of those grounds." It further prohibited against incitement to racial hatred. These acts were defined as civil offenses. In 1968, the Race Relations Act was bolstered as need to address discrimination through policy was recognised, to additionally include prohibition against employment discrimination based on race, national or ethnic origin, or color. In its coverage of employment discrimination, the Act presents a nuanced piece of legislation, with provisions for causes of investigation and exceptions. This Act was significant in terms of addressing racial discrimination as a direct topic of legislation, creating president for further discrimination concerning race and national origin.
Race Relations Act 1976
The Race Relation Acts of 1965 and 1968 were followed by the Race Relations Act of 1976. This version of the Act is different from the others most significantly in terms of it requiring public entities to enforce anti-discrimination measures. More specifically, this version of the Act permits an individual who has perceived that he or she is experiencing discrimination to submit a claim to an employment tribunal. Such tribunals deal with a variety of workplace complaints, from the commonplace to the rare. A tribunal proceeding is less formal than a court proceeding, as a single lawyer will chair the tribunal, paired with non attorneys. It is also more expedient and less costly to address disputes through tribunal, rather than through the conventional court system. It is typical that tribunals will include witness statements and witness testimony, including cross-examination. Discrimination law permits the claimants to gather information prior to the proceeding from the respondents. If discrimination is found, the employer will be recommended to redress the discrimination and potentially mandated to pay compensation. Furthermore, a 2003 law eased the burden of proof on claimants, which permits disadvantaged claimants to have more of a potential of success. The Race Relations Act of 1976 was further modified in 2000 to include discrimination by police and provisions for national security measures.
Human Rights Act, 1998 Article 14
Many efforts to address discrimination have developed from the European Convention on Human Rights. This convention became effective in 1953, and all Council of Europe Member States were expected to abide by the provisions of the Convention. Article 14 describes discrimination, though in the context of a vast variety of potential biases. It mentions race as a potential point of discrimination, but it does not emphasize racial discrimination as a point of particular concern. Furthermore, those rights that are guaranteed to be free from discrimination are only those that are mentioned within the Convention. This can be understood to be limiting.
The Human Rights Act of 1998 represented an effort to manifest the provisions of the ECHR into British law. Article 14 of the Human Rights Act of 1998 states that "[t]he enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
This article stipulates that the rights provisioned in the convention must be supported by the state without any discrimination, including racial discrimination. However, this Article has also been critiqued for its perceived failure to provide an autonomous right to non-discrimination. However, this problem was recognized and addressed. As Howard writes, "[to] overcome this problem,
the Council of Europe's Committee of Ministers approved Protocol 12 to the ECHR. This Protocol, which opened for signature on 4 November 2000, contains an independent, freestanding right to non-discrimination in Article 1(1): 'The enjoyment of any right set forth by law shall be secured without discrimination on any grounds such as . . .' and then it mentions the same grounds as Article 14 ECHR. Both Article 14 and Protocol 12 give an open-ended or non-exhaustive list of grounds-'any grounds such as . . .'. This means that additional grounds could be recognised. Protocol 12 came into force on 1 April 2005." Paired with the Protocol, the Article became a more robust and effective piece of legislation. Through providing such an open-ended list of grounds, the legislation would be able to address unforeseen situations as they arose.
The European Union and the Council of Europe are distinct, as Howard emphasises, though both have taken efforts to address racial discrimination. The original intent of the European Community was to combine economic forces among European nations. "The European Union and the Council of Europe are quite different organisations, and were set up for different purposes. The European Community, now the European Union, was established in 1957 with economic cooperation as its primary aim. Since May 2004, when ten new states joined, it has 25 Member States. The Treaty establishing the European Community has, among other institutions, established a European Court of Justice." Currently, the European Community focuses on social issues, including anti-discrimination efforts.
However, points of uncertainty and questions still arose in connection with this legislation. For instance, it has been questioned whether the ECHR can feasibly protect human rights in a context of opposition from the society itself. For example, in relation to the Roma people, Kuhelj writes, "any top-down, government-sponsored initiative for improving Roma rights is met with stiff political resistance at the local level...State policy is developed through national discussion-speaking of the individual states' Roma policy coincides with questions of nationalism, national homogenization, and assimilation, which often become state policy." However, some research indicates that courts can initiate social change, as judges may feel more freedom than public officials to challenge social views in the interest of protecting minority rights. Still more research indicates that the emphasis on the limits possessed by the courts in creating social change is exaggerated.
Racial Equality Directive, 2000
Directives articulate goals while allowing for individual Member States to create their own legal measures to manifest those goals. The Racial Equality Directive of 2000 acts to further articulate and advance the goal of diversity. Specifically, sections 3 and 9 sought to further demonstrate accordance around the importance of diversity and to describe the impact of discrimination, reading:
(3) The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories.
(9) Discrimination based on racial or ethnic origin may undermine the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment and of social protection, the raising of the standard of living and quality of life, economic and social cohesion and solidarity. It may also undermine the objective of developing the European Union as an area of freedom, security and justice.
This Directive was quickly drafted and adopted, in a space of roughly six months. The Proposal was quickly passed in part due to the right-wing Freedom Party entering the Austrian government. The Directive specifically prohibits against four manifestations of discrimination, including direct discrimination, indirect discrimination, harassment, and instruction of another to discriminate. In this manifestation of EU definitions of discrimination, indirect discrimination assumes a different form, being defined more broadly and with less need for production of evidence than was previously emphasized.
In writing about the Directive, Mark Bell situates it as occupying a position that is consistent with European labour law, but which also signifies the shift toward socially-oriented policy. "t[T]he Racial Equality Directive is particularly interesting, because it both shares many hallmarks of traditional European labour law as well as containing elements that suggest a shift towards a broader conception of European social law. The latter is especially manifest in the material scope of the Directive, which enters into precisely those aspects of national social policy normally side-stepped by EU social policy. For this reason alone, the Directive does not rest easily under the aegis of European labour law." The Directive can then be said to represent a shift in EU policy, as it more directly contributes to the execution of various national policies.
The Racial Equality Directive has it also been critiqued as containing loopholes, creating what Lahuerta calls a "hierarchy of equalities and of peoples." For example, she notes that Third Country Nationals (TCNs) are excluded from protection against discrimination on the basis of nationality. She also notes that protections for TCNs against religious discrimination is limited to the field of employment and is not as robust as that provided to others. While TCNs are protected against racial discrimination in employment, as well as in other venues, this is the strongest form of protection they receive, with protection enforced and with relatively few exceptions in existence. The issue that Lahuerta identifies is that throughout these forms of protection against discrimination for Third Country Nationals, they are not reinforced uniformly. They create what Lahuerta calls a "hierarchy of equalities." She argues that "from a financial perspective, it does not seem justified that legally resident TCNs, who are paying social security taxes to finance the welfare systems, are less protected against discrimination precisely, and only, for the fact of being 'outsiders'.The fear that TCNs may weaken our social security systems does not provide sufficient basis for such a restriction in so far that Member States can differentiate between non-resident and resident foreigners." As Lahuerta points out, efforts to legally address discrimination often hinge on who is defined as a citizen, yet this definition is, to some extent, influenced by ideas of race and culture which have defined who belongs and who does not. Her work illustrates the overlap between national identity discrimination and race discrimination, illustrating some of the difficulties in this legislation.
Equality Act 2006
The Equality Act of 2006 is an act of the United Kingdom Parliament which applies to the United Kingdom. This Act gathers previous legislative protections against discrimination and it also serves to strengthen them. Some of the specific features of this Act include prohibition of discrimination of service on the grounds of religion or belief, it permitted the introduction of regulations prohibiting discrimination based on sexual orientation, and it emphasized the importance of gender equality. Additionally, the Act set up the Equality and Human Rights Commission, a statutory body and one of three primary accredited National Human Rights Institutions in the United Kingdom. One of the primary expectations of the EHRC was to emphasize the importance of human rights. In line with this mission, the organization observes and shares progress in Great Britain, specifically regarding how human rights are manifested from the treaties ratified by the UK. Such treaties include the European Convention on Human Rights and other international human rights treaties.
EU Charter of Fundamental Rights, Article 21, 2009
Section 1 of Article 21 of the EU Charter of Fundamental Rights reads, "Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."
After the adoption of the Lisbon Treaty, the Charter of Fundamental Rights became legally binding within EU States. In addition to Article 21, the Treaty of Lisbon also contains many other articles that are important to anti-discrimination legislation. For example, Article 2 mentions equality as a foundational value of the Union, and Article 3 delineates an obligation to fight discrimination, instead promoting equality. This Article also describes the importance of diversity. As Howard notes, these mentions do not constitute any enforceable legal rights, but they do provide a context in which importance of equality to the EU is acknowledged. Articles 18 and 19 are also important within the Lisbon Treaty; Article 19 expands the abilities of Parliament, so that it is able to require consent before directives are adopted based on the Article. The Treaty also asked to consolidate bases for discrimination across existing legislation, making anti-discrimination legislation better able to be enforced. Article 8 stipulates that the state has an obligation to eliminate inequality, and Article 10 mainstreams this duty to various forms of discrimination.
Enterprise and Regulatory Reform Act 2013
In 2013, the Enterprise and Regulatory Reform Act included caste as an aspect of race, which is an amendment from previous definitions. This is particularly important because it addresses some of the loopholes concerning the overlap between race and nationality, which had previously failed to provide protections to some. An additional piece of 2013 legislation, the Employment Tribunal and Employment Appeal Tribunal Fees Order of 2013, is a point of concern to the Equality and Human Rights Commission, as it introduces substantial fees for employment tribunal hearings. It is the obligation of the claimants to pay these fees. Additionally, the very issuing of the claim also carries a heavy fee, with discrimination claims being subject to higher levels of fees. While some claimants may qualify for reduced fees or remission of fees, such fees can still discourage claimants from coming forth with their claims and may result in a lack of recourse for discrimination on the part of employers. Furthermore, the EHRC asserts that the introduction of these fees may compromise the rights of claimants under Article 6 of the EHRC , which ensures access to justice. They cite the number of race discrimination cases as dropping by 61% after the introduction of these fees in employment tribunals. Therefore, this may produce discrimination, as Article 6 stipulates the right to a fair trial and Article 4 stipulates a prohibition against discrimination in the enjoyment of rights.
Another point of concern is the existing limitation on legal aid funding. 'The UK Government had intended to introduce a residence test for civil legal aid...With certain exceptions, the test was designed to limit funding to people who are lawfully resident in the UK and who, at some point, have been lawfully resident for at least 12 months continuously. In the analysis of the UK Parliament's Joint Committee on Human Rights, certain vulnerable groups would be unable to prove that they satisfy the test, including those without documents to prove their immigration history and victims of trafficking whose status is disputed." With this policy, those who are most vulnerable to discrimination and who are most in need of assistance would not be eligible to receive it. Even when policy has been adapted to address discrimination, other bureaucratic policy may prevent its implementation.
Conclusion
The history of EU and UK anti-discrimination laws reflect an evolution in efforts to address many of the challenges that arise with legislating against discrimination. Historically, those in minority groups have had less access to integration in society, including within the venue of employment and labour. Furthermore, discrimination may always be challenging to effectively legislate against, as it can be difficult to describe, recognize, and prove. For example, Hirsch finds that even in cases when racial discrimination exists, not all of those who are being discriminated against will recognize it as such. Workers in specific groups and workers with a lower sense of entitlement, such as those who have not worked for the employer for as long or who do not belong to a union, are less likely to perceive unfair treatment as racial discrimination. The perception of discrimination can vary greatly across groups and in particular contexts, demonstrating that specifics are a key element in applying the law in such a way that discrimination legislation can be enforced. It is clear that as efforts to legislate anti-discrimination measures continue, additional research on this subject must be conducted, and those who have experienced discrimination must be consulted, as it is their experiences and voices that will shed light on this complex phenomenon, improving efforts to legislate.
The evolution of UK anti-discrimination law also reflects an understanding of what legislation is able to do and its purpose, as well as shifting understandings regarding discrimination, employment, and race itself. For example, the treatment of race as largely distinct from nationality has been cited as a weakness throughout this law, one which has recently been redressed. Recourse and outcomes to those who have experienced discrimination must also be considered when assessing the effectiveness of anti-discrimination legislation. For example, while the tribunal model has had some benefits to those facing discrimination, the introduction of exorbitant fees has arguably created a chilling effect on the willingness of employees to report discrimination or to pursue claims. It does little good to have robust and nuanced legislation in existence if the outcomes for these employees are not improved.
Not only does anti-discrimination law reflect understandings of race and discrimination; it also creates them. The relationship between law and social understandings is complex and relational. Social policy addresses social norms as it attempts to change them, and in this process, they also shape these norms. As discussions around race and identity intensify and societies move toward a place of better equality, UK anti-discrimination employment legislation is sure to continue to shift and change. As it does so, it will reveal current thought about equality and about the role of law in enforcing equality.
Discrimination takes a toll on societies as a whole, as well as specific groups of people. When some are economically oppressed and cannot thrive, the result is that an economically disadvantaged class is created, with greater need for social programs and less ability to contribute economically. More important than this is that fair consideration without discrimination based on a protected category is a fundamental human right. An equitable and just society is one in which policy ensures that all citizens are provided with equal opportunities. Furthermore, the research on the effects of discrimination suggest that discrimination is not only a social issue, but is also a public health concern. Efforts to eliminate discrimination must be maintained for the benefit and health of all.
References
Ahmed T, 'A Critical Appraisal Of EU Governance For The Protection Of Minority Rights' (2010) 17 International Journal on Minority and Group Rights
Bell M, 'Beyond European Labour Law? Reflections On The EU Racial Equality Directive' (2002) 8 European Law Journal
Brown A Erskine, 'A Qualitative Study Of Judgments In Race Discrimination Employment Cases' (2009) 31 Law & Policy
Chopin I, 'The Starting Line Group: A Harmonised Approach To Fight Racism And To Promote Equal Treatment' (1999) 1 European Journal of Migration and Law
Dembour M, 'Still Silencing The Racism Suffered By Migrants . . . The Limits Of Current Developments Under Article 14 ECHR' (2009) 11 European Journal of Migration and Law
Drydakis N, 'Estimating Ethnic Discrimination In The Labour Market Using Experimental Data' (2012) 12 Southeast European and Black Sea Studies Employment Equality Directive, 2000.
Enterprise and Regulatory Reform Act 2013
Equality Act 2006
Equality and Human Rights Commission, 'Race Rights In The UK: Submission To The UN Committee On The Elimination Of Racial Discrimination In Advance Of The Public Examination Of The UK'S Implementation Of ICERD' (Equality and Human Rights Commission 2016)
EU Charter of Fundamental Rights, Article 21, 2009
European Convention on Human Rights, Article 14, 1953
European Convention on Human Rights, Article 6, 1953
Fox J, L MoroşanuE Szilassy, 'Denying Discrimination: Status, 'Race', And The Whitening Of Britain's New Europeans' (2014) 41 Journal of Ethnic and Migration Studies
Geddes A, 'Britain, France, And EU Anti-Discrimination Policy: The Emergence Of An EU Policy Paradigm' (2004) 27 West European Politics
Goldman B and others, 'Employment Discrimination In Organizations: Antecedents And Consequences' (2006) 32 Journal of Management
Guild E, 'European Developments. The EC Directive On Race Discrimination: Surprises, Possibilities And Limitations' (2000) 29 Industrial Law Journal
Guliyeva G, 'Joining Forces Or Reinventing The Wheel? The EU And The Protection Of National Minorities' (2010) 17 International Journal on Minority and Group Rights
Haskovec, J, 'A beast of a burden? The New Eu Burden-of-Proof Arrangement in Cases of Employment Discrimination Compared to Existing U.S. Law' (2005) 14 Transnational Law & Contemporary Problems
Hirsh EC Lyons, 'Perceiving Discrimination On The Job: Legal Consciousness, Workplace Context, And The Construction Of Race Discrimination' (2010) 44 Law & Society Review
Howard E, 'Anti Race Discrimination Measures In Europe: An Attack On Two Fronts' (2005) 11 European Law Journal
Howard E, 'EU Equality Law: Three Recent Developments' (2011) 17 European Law Journal
Human Rights Act, 1998
Kuhelj A, 'Conflict Between Declared Roma Minority Rights And European Practice: Why The Legal Framework Doesn't Work In Reality?' (2012) 36 SSRN Electronic Journal
Lahuerta S, 'Race Equality And TCNs, Or How To Fight Discrimination With A Discriminatory Law' (2009) 15 European Law Journal
Race Equality Directive, 2000
Race Relations Act 1965
Race Relations Act 1968
Race Relations Act 1976
Race Relations Act 2000
'Race Rights in the UK' (Equality and Human Rights Commission, 2018)
Racial Equality Directive, 2000.
Ruzza C, 'Civil Society Actors And EU Fundamental Rights Policy: Opportunities And Challenges' (2013) 15 Human Rights Review The Amsterdam Treaty, 1999
The Employment Tribunal and Employment Appeal Tribunal Fees Order 2013
Treaty of Lisbon, Article 13, 2009
Treaty on the Functioning of the European Union, 1958