Legal Control of Racial Discrimination Other Law titles from The Macmillan Press Alcock and Harris: Welfare, Work and the Law Beirne: Fair Rent and Legal Fiction Morris et al.: lustice for Children Plender and Usher: Cases and Materials on the Law of the European Communities Raisbeck: Law and the Social Worker Roberts: The Reform ofPlanning Law Sorensen: Manual ofPublic International Law Legal Control of Racial Discrimination Laurence Lustgarten School of Law, University of Warwick M © Laurence Lustgarten 1980 All rights reserved. No part of this publication may be reproduced or transmitted, in any form or by any means, without permission. First published 1980 by THE MACMILLAN PRESS L1D London and Basingstoke Associated companies in Delhi Dublin Hong Kong Johannesburg Lagos Melboume New York Singapore and Tokyo Filmset in Great Britain by V ANTAGE PHOTOTYPESETIING CO. L1D Southampton and London ISBN 978-0-333-24388-6 ISBN 978-1-349-16439-4 (eBook) DOI 10.1007/978-1-349-16439-4 This book is sold subject to the standard conditions of the Net Book Agreement. The paperback edition of this book is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, re-sold, hlred out, or otherwise circulated without the publisher's prior consent in any form of binding or cover other than that in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser. To my Parents Contents Pre/ace ix Acknowledgements xvii Table 0/ Cases xix Table 0/ Statutes and Statutory Instruments xxii Table 0/ Abbreviations xxvii Part I The Meaning of Discrimination 1 Concepts of Discrimination - History and Theory 3 2 Indirect Discrimination - The Legal Issues 43 3 The Grounds of Discrimination 65 4 Victimisation 87 Part 11 Discrimination in Employment 5 Black Workers - Discrimination and Disadvantage 95 6 Employment Discrimination Law - The Main Provisions 113 7 Exclusions and Exceptions 135 8 The Public Sector 152 9 Trade Unions and Shop Stewards 164 viii Contents partm Enforcement Introduction 185 10 Individual Enforcement of the Act 189 11 Problems of Proof 204 12 Individual Remedies 224 13 Administrative Enforcement 240 Coda 253 Statutory Appendix 256 Index 261 Preface I This book is neither simply a study of law in the form of a textual exegesis, nor of race relations in a general sense. It is rather a look at a social problem - the ill treatment and inferior material conditions of a portion of the nation's population marked off from the majority by colour and ethnic origin - through the eyes of a lawyer. Consequently much that a sociologist, social psychologist or economist would include in a work on this general subject is not to be found: nothing is said about theories of racial strati­ fication, of prejudice or of microeconomic models of discrimination. Con­ versely, much of the work is devoted to matters that the black letter lawyer has defined out of his realm, as with the chapters on the condition of racial minorities in employment and the theoretical examination of concepts of discrimination. Thus the social reality of racial discrimination and disadvan­ tage defines the setting of the study, a substantial proportion of which is devoted to a highly detailed examination of the Race Relations Act 1976 ('the Act' or 'the 1976 Act') and related employment law. Moreover, if law, while constrained by the wider social structure, simul­ taneously helps to alter it, one must exatnine the extent to which the legal structure - a shorthand for a complex of institutions, inherited habits of thought and modes of procedure, and the roles and ideology of the profes­ sion - may itself channel or block the effort to achieve a particular social reform by legislative enactment. lust as one does not fully comprehend 'society' if one treats law as a discrete factor, or ignores its specific pro­ visions, so one does not understand 'law' if it is regarded simply as a system of rules, concepts and formal procedures. This sense of an interlocking and dynamic - perhaps the best adjective is 'kaleidoscopic' - relationship has shaped the definition of the issues considered here, the relative importance accorded specific topics and the overall organisation of the study. Analysis is made all the more difficult by the fact that the central concept under scrutiny is philosophically problematic and highly contentious. Early x Preface in this study I became fascinated by the way in which the evolution of the legal concept of discrimination mirrored policymakers' altered perceptions of a social problem. I also found the effort to co me to grips with the moral and philosophical dilemmas raised by some of the proposed remedies alm ost physically painful, and became convinced that non-whites in nations like Britain and the United States would remain locked permanently in inferior conditions with little assistance from anti-discrimination law unless the concept was broadened to take adequate account of the element of collec­ tive deprivation. I have attempted to formulate at least the rudiments of a suitably expanded concept in the last seetion of Chapter 1. Readers may judge whether the effort has succeeded, but I am certain that philosophical and jurisprudential analysis is essential to adequate treatment of the subject. This study is confined to discrimination in employment, although there are occasional mentions of other spheres. This arises partly from length limitations imposed by the economics of publishing, but the primary impor­ tance of employment in dictating the economic position of minorities seems clear enough. Moreover, the analyses in Parts I and III are for the most part capable of direct application to other areas, like housing, by anyone with knowledge of them. The restriction also facilitates examination of the way in which employment discrimination and the governing law fit into the broader framework of industrial relations and labour law. Consequently, the crimi­ nal prohibition of incitement to racial hatred now found in s. 70 of the Act, and the wider problems of public order and protection of minority co m­ munities from racist attacks, are entirely omitted. For the same reason, little is said about the immigration laws, despite the fact that they are the most explicitly discriminatory legislation presently in force in Britain. Given a perspective which sees law in relation to the social phenomenon to which it is addressed, discussion of sex discrimination had to be omitted. Although various forms of discrimination may share certain behavioural sources, sex discrimination ultimately derives from the different social roles occupied by women, in turn an outgrowth of the family, one of the most fundamental institutions of society. Nor do women live, or function econ­ omically, separately from men in daily life in the way that blacks may move in realms utterly apart from.most whites. Moreover, different institutions and practices serve as barriers to the economic advancement of minorities than to women. Given these contextual variations, it would be impossible in a work of this length to do either subject justice. However, since many of the provisions of the Sex Discrimination Act 1975 and the RRA are identical, a large part of the discussion of case law concerns litigation under the SDA, and anyone more concerned with that problem should find this book relevant. The study aims to reach a wide and diffuse audience. I should hope that it would be of interest to scholars and students of law and social science generally, to persons who may wish to learn of their rights or obligations Preface xi under the Act, and equally to that amiable figure whom 1 hope is not a pIe asant fiction - the general reader/concerned citizen. This has meant attempting to strike a balance between stating what is elementary or obvious to the legally-trained specialist and leaving the layman in ignorance. 1 have found this extraordinarily difficult and must ask the indulgence of those who may intermittently be bored or mystified, since I am quite sure that in pI aces 1 have not got the balance right. II Theorising on a breathtakingly vague, and often vacuous, level has become the vogue in academic social science in this country over the past few years. It now seems impossible to pick up a book which does not seek to locate its particular subject-matter in the context of late/corporate/crisis­ ridden/viriIlent capitalism. None the less, whilst individual efforts are only too easy to parody, the intellectual movement has had the valuable result of making scholars aware that any topic they have defined as a social problem has both a temporal-i.e. historical-dimension, and a structural one - that it is part of the deeper-lying social organisation and power relationships of the society that produced it. This theoretical orientation has the further virtue of reminding an author that he cannot escape having an implicit sociology and moral standpoint that shapes his work, whether or not he expresses them. 1 should thus explain why 1 have chosen not to articulate certain assumptions which implicitly underpin my analysis and approach. The first concerns the general theoretical relationship between law and economic and/or social change. The first of these is weH beyond my present needs except where discussed at one point in the opening chapter. Though I have found broad accounts relating the development of law to the evolution of capitalism, whether Marxist or Weberian in orientation, historically quite illuminating, they see m less useful in analysing the role of law within a short and contemporary period. Within this tight frame, 1 posit that legal factors exercise an independent and often strong influence; in the present jargon, that law is relatively autonomous.