I want to mark the end of Black History Month by highlighting again the importance of maintaining the pressure on tackling racism. Throughout black history, the challenge of tackling racism is a constant theme and in my view, much has been said, but little has been done in this area to deliver tangible improvements. I personally view racism as a mental illness, because I can find no other way to explain why seemingly logical and intelligent people can react with such emotional negativity to other individuals purely because of the colour of their skin. It is certainly not my place to make sense of the fear, threat and madness that circulates in the heads of those racists living amongst us, but it is my place to make sense of the legislation and processes that protect people like myself from such harms.
On the face of it, the legal approach and thought processes in proving cases of racial discrimination, like any other form of discrimination, reminds me of the popular Netflix series How to Get Away with Murder. Racist get away with racism simply because they know how to, particularly in the workplace and legal protection is weak and thus easily manipulated. It is no longer about using of the “N” word, as racists are normally far too cowardly for that. These days racism can feel more like a subtle caress, than an assault. Instead of being hung from a tree, black people are hung out to dry.
The different ways that racism now manifests has evolved to a much higher level of sophistication, although it could also be argued, judging by the George Floyd incident, that racism can be administered in a cold, stark and deadly manner in broad daylight, but yet the racial motive can still be disputed. I feel this is due to the resistance to recognise that racism remains very prevalent in our society and an even stronger resistance to moving beyond cursory lip service. Racism is easy to detect by those on the receiving end, as racism radars have also evolved, but it is difficult to prove racial discrimination in Employment Tribunals. In short, existing legislation, primarily the Race Equality Act 2010, is not helpful in supporting victims to win cases of racial discrimination. The law is outdated and obviously not caught up with the ways in which racism has evolved and the critical race theory which proposes that white supremacy and racial power are maintained over time and that the law may play a role in this process. Political moves to shut down discussions on critical race theory seem late as most of us are pretty “woke” so at this point it is really about doing the work and speaking truth to power.
The utility of existing legislation aimed at tackling racial discrimination must be useful, or subjected to reform. Being a decade old, perhaps this is somewhat overdue. Laws meant to tackle racism certainly should not replace “white sheets” in protecting racists rather than their victims. Currently, it appears practically impossible to prove a case unless the racism is overt and the victim has witnesses and/or strong documentary evidence. This is challenging because racists are often careful not to act overtly, but rather more subtle. Conscious and unconscious bias are hard to prove, but nevertheless are as harmful as using the “N” word. It is worth noting that the success rate in discrimination cases brought before Employment Tribunals in the UK is as low as 10% and the median compensation is £6,000. Therefore, it should be recognised that the motivation behind such cases is not money, but rather racial justice.
It is not clear what would convince senior managers, decision-makers and legal professionals that racism has been felt by the claimant, particularly as all too often they are white and thus beneficiaries of white privilege, which includes having “the benefit of the doubt” on their side. A claimant needs to establish on the balance of probabilities less favourable treatment because of a protected characteristic. The less favourable treatment is expected to be judged against a comparator, whose circumstances are materially similar, and the reason must in some way be tainted by a prohibited characteristic. Employment Tribunals are obliged to consider the reverse burden of proof as set out in the Equality Act 2010 when considering whether discrimination is indeed a justifiable claim. A first major stumbling block is identifying a relevant comparator. In my view, this assumes that the claimant enters an organisation expecting that they will be at some point the victim of racial discrimination and therefore identifies a potential comparator from the outset and carefully monitors how the identified individual is treated until such time as racism occurs. The fact that the comparator would obviously be white and protected by the shield of skin tone undermines the logic of this requirement, as does the fact that disciplinary and grievance cases are dealt with in strictest confidence. Therefore, in my view the requirement of a comparator on the same or very similar situation to benchmark allegations of discrimination is essentially more like a get out of jail free card, than a tool in helping to determine such cases.
One explanation behind the decision to retain the concept of a comparator in the definition of direct discrimination is that discrimination is principally about equal rather than fair treatment and courts and tribunals have flexibility on how to define comparators in each case. Thus, removing the comparator in each case would make it harder to ascribe actions to inequitable treatment based on a protected characteristic, which is a key and longstanding principle governing discrimination law. Mindboggling. As a lay person, it is unclear how this helps the claimant who is expected to present prima facie evidence of racial discrimination before the case can get off the ground. The barrier to justice presented by this requirement is in my view a travesty and severely obstructs those in pursuit of racial justice.
The increasing tendency amongst Employment Tribunals to go straight to the reason for the treatment, rather than look at complex issues of comparators is therefore encouraging. Basically, this means carefully unpacking why the claimant was treated how they were. I think this approach is more on the path of gaining racial justice and holding perpetrators to account, which in itself can serve as an effective deterrent. This approach also allows those adjudicating such cases to better understand the physical and mental injuries resulting from exposure to racism and the realities of life for those operating with the absence of white privilege.
Often victims of racism are in the lower rungs of the organisation and therefore unable to afford the legal advice and support needed to take their case to an Employment Tribunal. Justice is therefore out to reach. Victims also submit to a prevailing culture of fear within their organisation, suffering the painful injury of racism, but at the same time feeling unable to voice their concerns. Many organisations have no set guidance or criteria for judging cases of racism and the judgement is often left to the subjective views of individuals who can also be unskilled and/or unwilling to understand and appreciate the harms involved, much depends on their own personal biases.
The only way forward is to take a firm stand against racism. Victims of racism exist in a lonely place, particularly those suffering in a work situation which denies them a safe and secure environment to be their best. Only the strongest friends and colleagues show tangible support. It can feel like one has been left standing on the platform watching their train depart, immobilised by the loss of trust and confidence in their organisation’s ability to operate effectively and create the conditions needed for them to get back on board and reach your career destination. There may be an urge to run behind the train and jump back on board before it is too late, joining friends and colleagues on board. The impact on one’s mental and emotional wellbeing is severe. But something keeps their feet firmly planted to the platform, because the only obvious conclusion is that there is something worth fighting for. It is important not to allow racism to remain normalised, to the extent that we do not pause to question and fight back in the interest of racial justice, assisted by better legislation. This will eventually undermine the credibility of our institutions; our quality of life and the overall functioning of our society.