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But why is that racist? The distraction of explaining

Discrimination lawyer Kiran Daurka explores the frustration around the constant questioning of racist incidents

Racism
Kiran is an experienced specialist employment lawyer with a particular interest in equality and discrimination cases and in advising whistleblowers.  You can follow Kiran on twitter @KDaurka
A palpable frustration in those of us who are actively involved in race issues has surfaced over recent times.  At each clear instance of race discrimination, the inevitable question is asked, “why  is that racist?”.  

There is always an easier,  alternative answer given to race discrimination and harassment.  Toni Morrison said the following at a 1975 lecture on race:

“Know the function, the very serious function of racism, is distraction. It keeps you from doing your work. It keeps you explaining, over and over again, your reason for being... None of that is necessary. There will always be one more thing.”


Raheem Sterling has been the latest high profile black man to raise the issue of everyday racism.  Kick It Out has reported a substantial increase in racist incidents in football in the last year. 

Yet, there are still those in the public arena questioning whether Raheem Stirling really does face racist commentary in the press and whether this has revitalised football spectators to use racial disparagements without thought. 

John Barnes was on the BBC Breakfast sofa (10 December 2018) explaining that the issue on the football terraces is simply mirroring social attitudes towards black people.  He talked of the hundreds of years of indoctrination which has subjugated black and minority people to be viewed under negative stereotypes.

It is clear that racial hatred never fully went away, it just went into hiding like a virus lying dormant in nerve endings.  And it has resurfaced again.  

It struck a chord with me when the BBC Breakfast presenter asked John Barnes what the solution was.  John had just explained that the media had a real responsibility in its negative portrayals  of (for example)  Jamaican men, Muslims and Nigerians; but there was a journalist asking him for a solution.  

This is the distraction that Toni Morrison was highlighting.  Not only is he explaining the fact of racism, he is required to explain the cause and the solution.  

The case Essop v The Home Office, well known in employment law, is the perfect example of distraction. The case is one of the first group race claims brought within the workplace.  In Essop, civil servants brought indirect race (and age) claims as black civil servants were statistically less likely to pass a skills assessment to promote up the pay grade.  The Court of Appeal effectively asked “why is that racist?”.  They suggested it was not possible to evidence the reason why black civil servants were not passing the exam and therefore the assessment could not be discriminatory. The Supreme Court did eventually overturn the decision confirming that the “reason why” question is not applicable as stated by the Court of Appeal as the purpose of indirect discrimination laws is to level the playing field.  The causes of structural discrimination, in relation to race especially, are so numerous and interwoven that inserting a requirement to explain why such discrimination exists would inevitably have the effect of preventing the discrimination from being addressed and resolved. The Supreme Court’s reasoning ensures that as long as disadvantage is being caused by a particular practice without justification, employers will be required to take steps to eliminate the discrimination, regardless of why that practice causes the discrimination.

I mention the case of Essop as it shows that the Courts get it wrong too.  They asked the wrong question in that case creating an insurmountable hurdle in race claims, which was corrected by the Supreme Court.  The wrong question created a long distraction resulting in over three years of litigation to deal with a preliminary aspect of the case.  The case, as I understand it, is still going as the parties argue over whether the skills assessment is a justified practice.

In order to break out of this persistent discussion, be it in the context of the hostile environment, freedom of movement, immigration status and so on, the focus has to be on our institutions.  It is not a problem solved with one case or one debate – we need all of our institutions to focus on their role in racism.  Race claims remain the hardest to win in Employment Tribunals; the media continues to perpetuate negative stereotypes of non-white people, the government has used EU nationals as pawns in the Brexit game; black men continue to be disproportionately detained under the Mental Health Act; schools do not teach about colonial history and the role of the Empire in slavery and conflict.  

We need to go back and look at MacPherson’s recommendations following the Stephen Lawrence Inquiry as they apply equally to all institutions.  Primarily, we need to accept an incident that is perceived to be racist as racist.  The complainant should not be required to explain why something is racist at the point that an allegation is made.

If Britain really does want to address racial tensions that repeatedly surface in this country, it would stop asking why something is racist.  It would instead accept the disadvantage of non-white groups and change its institutions.  But where is the incentive to do this?  

I fully understand and accept the frustrations of peers and colleagues who cannot face doing the heavy lifting anymore on continuing race issues.  I share those feelings.  I wish I could start responding to that question with “if you don’t already understand, or try to understand,  then I won’t be distracted in trying to explain the issue to you”. However, proving a race claim won’t allow me to do that – I will have to bring the evidence of stereotyping, unconscious bias and causation in a way that generally doesn’t apply in other types of discrimination claims.  All of our institutions, including the judicial system, need to look at the questions they ask and how they are contributing to racism. 

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