Yes, we should abolish workplace race laws

What did UKIP leader Nigel Farage say to prompt the following responses: ‘pretty appalling’ (prime minister David Cameron); ‘irresponsible’ (deputy prime minister Nick Clegg); ‘wrong, divisive and dangerous’ (Labour Party leader Ed Miliband); ‘one of the most shocking things I have ever heard’ (Labour’s justice spokesman Sadiq Khan); and something ‘that Goebbels [the Nazi minister of propaganda] would be proud of’ (Tory MP Nadhim Zahawi)?

Had Farage taken leave of his senses and suddenly declared his support for the Islamic State? No, not quite. He had merely claimed it was time to scrap the UK’s race-discrimination laws. And what should have been the cue for a serious debate about workplace race-discrimination laws was snuffed out within hours, with even the usually robust Farage appearing to backtrack.

The irony, no doubt lost on the political establishment that sought to silence any debate about race-discrimination laws, is that Farage made the comments in a documentary, to be shown on Channel 4 this Thursday, called Things We Won’t Say About Race (That Are True). So, the first point from the documentary’s title has already been established before the programme is even aired: there are some things that we won’t (or can’t) say about race, such as race-discrimination laws should be scrapped.

As for things we won’t say about race that are true, it’s often the case that truth is the first casualty of unthinking censure. And when that censure is expressed by the likes of Cameron, Clegg and Miliband, then it is just possible that Farage’s argument to scrap race-discrimination laws hit upon an important truth.

In the interests of developing the debate that Farage tried to start, here’s my three-point argument for scrapping race-discrimination laws: (1) anti-racism is about promoting equality of opportunity (for all races); (2) today’s race-discrimination laws promote equality of outcome; and (3), equality of outcome is the enemy of a meritocratic workplace.

First, anti-racism is about promoting equality of opportunity. The point was made by the Labour Party’s justice spokesman, Sadiq Khan, who drew attention to the pernicious nature of racism with the familiar example of how, when a previous immigrant generation ‘moved to London, they frequently saw signs saying “no blacks, no dogs, no Irish”’. Back then, the prospective employer sometimes gave the immigrant no opportunity to be employed. Black and minority ethnic (BME) applicants and employees in a previous era were treated by some employers as inferior, and they were denied the right to be judged on merit.

Khan made the point about the racism his parents’ generation experienced (in the 1960s and 1970s) in order to criticise Farage on the grounds that by scrapping race-discrimination laws, UKIP ‘would take us back to those days’. Khan’s background as a human-rights lawyer has clearly warped his sense of reality. Human-rights lawyers have a tendency to see hordes of employers chafing at the bit to advertise vacancies with the proviso that ‘BME people need not apply’. Human-rights lawyers, with their misanthropic view of humanity and bloated sense of moral self-worth, can’t help seeing themselves and the laws that empower them as the bulwark that keeps Britain safe from a horde of employers who are closet racists. The reality, of course, is that attitudes towards race have changed beyond recognition since Khan’s parents arrived in the UK. Racism, as the denial of equality of opportunity, is now a thing of the past. Khan’s inability to use a contemporary example of workplace racism was testament to that fact.

Second, race-discrimination laws have changed in response to the demise of racism. In recent years, direct discrimination claims in the workplace have all but disappeared in favour of claims described by the law as indirect discrimination claims. Direct discrimination is when a person is denied a job or promotion on the grounds of race. Outlawing direct discrimination was useful in an earlier era when racism, as the denial of equality of opportunity, was prevalent. Indirect discrimination, however, occurs when an employer has a practice that has a disproportionate impact on individuals who happen to be of a certain race. Whereas direct discrimination focuses on the process, indirect discrimination focuses on the outcome. Direct discrimination is proved with evidence of racism whereas indirect discrimination is proved with evidence of statistics.

An indirect discrimination claim can be satisfied where the employer, for reasons entirely unconnected with race, happens to have a practice that has a disproportionate impact on different races. Take the recent Employment Tribunal case of Essop, in which BME civil servants over the age of 35 claimed that an exam required for promotion to the post of higher executive officer tended to be passed by a greater percentage of non-BME younger candidates. Statistically this was true, and so, even though the claimants accepted that there was no obvious reason to conclude that the test was racially biased, the claim of indirect discrimination was allowed to proceed.

In truth, cases of indirect discrimination, of which the Essop case is a good example, never establish racism. Essop was not prevented by his race from becoming a higher-executive officer in the civil service; all he had to do was pass the same exam, which was not racially biased, as everyone else. Indirect discrimination claims succeed not for a want of equality of opportunity, but for a want of equality of outcome.

Yet today’s bien pensants still claim that cases of indirect discrimination have something to do with racism. The Essop case could be summarised as: ‘BME civil servants complain that exam is too tough.’ But this hardly has the moral force of saying ‘BME civil servants complain of racism’. If the judge in Essop had any doubts about the moral worth of the claim, he allayed them by noting how indirect discrimination is ‘notorious in the folklore of civil rights: such as the requirement there once was in some southern [American] states for voters to have to demonstrate an ability to read or write – this apparently racially neutral criterion excluded most of those who, being black and former slaves, had had no education’. To which the only answer is: never argue by false analogy. Civil-rights campaigners fighting racial oppression decades ago in southern American states were not arguing for the right to be promoted by obviating racially neutral tests. And Essop and his colleagues were not fighting for civil rights in states that had deliberately introduced practices to oppress black people.

Like Sadiq Khan being unable to see the difference between the racist Sixties and the non-racist twenty-first century, so the judge in the Essop case failed to see how today’s indirect discrimination laws have nothing to do with challenging racism. As befits laws that are now found in the Equality Act 2010, today’s workplace race laws are concerned with equality; but it’s the equality of outcome they seek, not the equality of opportunity. Diversity, namely recognising a person’s difference, such as his difficulty in passing a racially neutral test, and changing the workplace to accommodate such personal differences, is the objective of today’s workplace laws. Under the Equality Act, if a job is hard for a BME applicant to secure then the law may require the employer to change its practices and the applicant will be comforted by the thought that he has no need to improve his CV. And if a BME employee is refused a promotion, then the law may require the employer to change its practices and the employee will be induced to believe that he has no need to improve his performance.

Third, the workplace should be a meritocracy. Appointments, promotions and pay should be made solely on the basis of merit. That is what anti-racists fought for in an earlier era: the right to be judged on merit rather than skin colour. The irony now is that today’s discourse of diversity is challenging the meritocratic nature of the workplace. Although it doesn’t profess to seek appointments, promotions and pay on the basis of skin colour, the constant focus of the diversity discourse on equality of outcome has that effect.

In the workplace employers fear they may be castigated by statistics showing they employ a disproportionately low number of BME staff, or a disproportionately low number of BME staff on higher pay grades, or a disproportionately high number of BME staff on lower pay grades. Statistics of this sort (which can be sliced and diced in any number of ways until the disproportionate outcome is discovered) can be enough to leave an employer facing the moral obloquy of a ‘race discrimination’ claim in an Employment Tribunal. The employer’s fear puts it under constant pressure to play the diversity game and allow merit to be trumped by an equality of outcomes in order to make the diversity stats look better.

The response to Farage’s recent comments shows that there are things we can’t say about race-discrimination laws. And if those who clamoured to silence Farage had engaged with the reality of equality laws as they are played out today in the workplace and in employment tribunals, then they might have been surprised by what they saw. The idea that today’s race-discrimination laws tackle racism is false, and the reality is that today’s race-discrimination laws challenge the meritocracy of the workplace.

If the case for race-discrimination laws was really so strong, then why did Cameron, Clegg and Miliband fail to produce a single argument for retaining them? Why was Khan’s only argument (that UKIP would return Britain to the racist ways of the Sixties) so unreal? Why was Nadhim Zahawi’s comment (abolition would make Nazis proud) nothing but gratuitous abuse? And why was the judge’s justification, when allowing the indirect discrimination challenge in Essop to proceed, based on such a false analogy? Could it be that this failure to engage with the issues around workplace race-discrimination laws is appalling, irresponsible, wrong, divisive, dangerous and shocking?

Jon Holbrook is a barrister based in London. He was shortlisted for the Legal Journalism prize at the Halsbury Legal Awards 2014. Follow him on Twitter: @JonHolb