Positive Obligations: Shifting the Burden in Order to Achieve Equality

11 March 2005

Barbara Cohen¹

“Equality” is enshrined as a fundamental principle in international instruments and in the constitutions of most countries. What does “equality” mean today? And, how will we get there? What types of laws, what types of action, by whom, will help to achieve equality within our societies? And what are the barriers that we will need to overcome?

In countries that have had anti-discrimination legislation for some time, the concept of equality has undergone a number of transformations:² 

• Equality is unlikely to be achieved simply by treating everyone the same. Whether the defining feature is race or sex or religion or disability or sexual orientation or age or any of a long list of other features, the fact of differences between groups will mean that a “colour blind” approach cannot guarantee equality of outcomes. Such an approach involves detaching a person from the groups to which she belongs, expecting her therefore to be able to conform to a norm defined by the majority (white, male, heterosexual, able-bodied of the majority faith and not too old). Further, by focusing on the individual, it discounts both the disadvantages and positive aspects of group membership – looking towards assimilation rather than pluralism.
• The ‘equal opportunities’ approach recognises the barriers that exclude members of particular groups from full participation and seeks to remove them. Firstly, in some cases the barriers may be justifiable, such as a requirement to have job-related qualifications. Secondly, merely ensuring that the door to employment or education or services is fully open to all may not be sufficient to enable members of certain groups to participate, if, due to historic or current disadvantage or discrimination, they lack the qualifications or experience or physical or social mobility that is needed.
• To achieve substantive equality, institutions may involve making some accommodation for the special needs of a particular group. This approach, which was first developed in relation to disability equality, is equally relevant for other grounds. Accommodation could involve modification of the working environment or the allocation of tasks to enable disabled people to do a job or modifying the working day/week to enable women with caring responsibilities or members of particular faiths to be fully employed. It could also involve adjusting job requirements and incorporating compulsory on-the-job training or mentoring to enable members of groups that had historically been excluded from jobs or education or training to take up employment in a new field. It could mean changing the way services are delivered to overcome language or cultural barriers which have had the effect of excluding certain groups from health or education provision.

The new concept of equality, as outlined by Fredman³, should encompass four central aims:

• to break the cycle of disadvantage associated with membership of a particular group;
• to promote respect for equal dignity and worth of all persons, redressing stigma, stereo-typing, humiliation based on membership of the group;
• to provide positive affirmation of individuals as members of the group;
• to facilitate full participation in society.

The realisation of this new concept of equality requires radical change at institutional level; such change will remain at the unattainable end of the rainbow if it is left to victims of discrimination to challenge practices and policies.

In a recent consultation document⁴, the UK government acknowledged that “the traditional model of discrimination law … is insufficient to drive forward the changes in society that are necessary if all people… are to realise their potential and make a full contribution to wider society. For example:

• “change depends on disadvantaged people enforcing their rights, rather than on bodies ensuring that they meet their responsibilities;
• “bodies may act to minimise the risk of legal action, rather than to achieve the full spirit of the law; and
• “while the law protects people from discrimination in the future, it does nothing to tackle the consequences of past discrimination.”

It may, therefore, be necessary to re-think our equality laws, and to transfer the burden from the victim, whose only lever may be to seek legal redress, to institutions that have the capacity to bring about wide scale and lasting change, whether or not that are or have been perpetrators of discrimination.

The resistance to change in relation to patterns of discrimination and the maintenance of inequalities has shown itself to be very strong, regardless constitutional and legislative proscription. The experience in countries like the UK or the USA is that, over time, even unwelcome laws begin to change behaviour. However where behaviour derives from well-entrenched attitudes, however irrational they may be, to secure real change in society and its institutions is likely to require more than progressive legislation. Often the impetus for change occurs when the injustice of current practice becomes so stark that it can no longer be sustained. Northern Ireland and South Africa offer useful examples. In both jurisdictions the urgent need to redress historical disparities in employment opportunities was recognised and legislation was adopted that impose positive obligations on employers.

In the early 1960’s, during the prolonged conflict in Northern Ireland (NI) in which religion was inextricably intertwined with political affiliation, there were growing demands for action to deal with the social and economic disparities between the Roman Catholic and Protestant communities. The rate of unemployment among Catholics was far higher, and Catholics were effectively excluded from certain types of employment. In 1976, the UK Parliament passed the Fair Employment (NI) Act, which outlawed discrimination in employment on grounds of religious belief and political opinion. After 10 years the problems of inequality in the labour market⁵ or religion-based job segregation had changed very little, and appeared to be unlikely to change unless employers were made part of the solution. The 1989 Fair Employment Act imposed specific obligations on employers. These were incorporated and strengthened in the Fair Employment and Treatment (NI) Order 1998 (FETO).

All private sector employers with more than 10 full-time employees and all public sector employers must register with the Equality Commission for Northern Ireland (ECNI) and submit annual returns showing the number of Catholics and Protestants and men and women in their workforce. At least once every three years they must review the composition of their workforce. Where such review indicates that Catholics or Protestants are not enjoying, or are unlikely to continue to enjoy, fair participation in employment within their enterprise, the employer may voluntarily undertake “affirmative action”⁶, or may be directed to do so by the Equality Commission.

The affirmative action permitted under FETO includes:

• the encouragement of applications for employment or training for people from under-represented groups;
• targeting training in a particular area or at a particular class of person;
• the amendment of redundancy procedures to help achieve fair participation; and
• the provision of training for non-employees of a particular religious belief, following approval by the Equality Commission.

A recent publication⁷ assessed changes in labour market and employment opportunities of Catholics and Protestants and the influence of the fair employment legislation. Among the findings were:

• a substantial improvement in the employment profile of Catholics;
• a considerable increase in the numbers of people working in integrated workplaces, in contrast to continuing segregation in public housing;
• education, rather than religion, now the main determinant of social mobility;
• employers indicating that strong legislation has helped change practices, and evidence suggesting that affirmative action agreements have helped to redress workplace under-representation.

Any consideration of positive action to redress historic disadvantage must consider the bold and creative measures that have been adopted in South Africa during its 10 years of democracy.

The South African Employment Equity Act (EEA) was approved in 1998 to achieve equity in the workplace by:

a. promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and

b. implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce⁸ where “designated groups” means Blacks (Africans, Coloureds and Indians), women and people with disabilities⁹.

The EEA was introduced against a background of extreme disparities in the distribution of labour market opportunities, most of which stemmed from past discriminatory laws. One indicator was labour market segregation which, in turn, created and maintained gross under-representation of Blacks, women and disabled people in key areas of work, in particular senior and top management.

As well as prohibiting discrimination, the EEA requires designated employers¹⁰ to analyse their employment policies, practices, procedures and working environment to identify barriers that adversely affect people from designated groups. Employers must then prepare and implement a timetabled employment equity plan. The plan should set out the employer’s proposed affirmative action measures, that is, measures to eliminate barriers and to make reasonable accommodation to ensure equality of opportunity and equitable representation within each occupational category and level).

The employer must consult employees from all groups and must report to the Director General of the Department of Labour.

The Act provides enforcement through the labour inspectorate and the courts. A labour inspector can enter an employer’s premises to check on compliance, and can request a written undertaking in respect of any employment equity duties the employer has failed to meet. The inspector can issue a compliance order for failure to give an undertaking or to comply with the terms of an undertaking; the order should state time for compliance and the maximum fine for failing to comply with the order. Ultimately the order is enforceable by the Labour Court.

The most recent report of the Commission for Employment Equity, covering the period 2002-03 shows that reports have been received from 6,990 employers covering 2.6 million employees¹¹.

The picture presented by these reports is not very encouraging. While Blacks comprise 86% of the economically active population, they occupy 18% of top management posts and 83% of unskilled posts. Blacks comprise 36% of recruits for top management posts and 95% of recruits for unskilled posts. Women account for only 14% of top management posts, of which only 4% are Black women; Black women account for 9% of recruits for top management posts and 32% of unskilled posts. Overall, Black women remain the most disadvantaged, other than disabled people whose participation in employment remained at only 1% of the total workforce (with disabled people comprising 1% of recruitment and more than 2% of all terminations).

The Commission concluded, “there has been progress, albeit at a snail’s pace, towards the achievement of the objectives of the Employment Equity Act. However … if we continue at this pace employment equity will become a challenge for decades.”¹² In response to this disappointing report, the Congress of South African Trade Unions (COSATU) pledged to become “more involved in overseeing the satisfactory implementation of the Act by all employers”.¹³

Looking beyond the workplace, the UK government has, gradually, come to recognise the need for the public sector to demonstrate by action as well as words its commitment to equality. There is now legislation in both Great Britain (GB) and Northern Ireland (NI) that applies the concept of positive equality obligations to public sector institutions in respect of the full range of their functions. The development of such legislation may offer some lessons.

It could be said that the UK was a pioneer in enacting laws to combat discrimination. In 1965, anxious to prevent urban unrest, the government secured the passage of the first Race Relations Act; it prohibited discrimination in “places of public resort” – restaurants, hotels, bars, cinemas, public transport – in GB, and established a specialised body, the Race Relations Board, to investigate and conciliate complaints of discrimination. The 1965 Act also made it a criminal offence to incite racial hatred. A second Race Relations Act was passed in 1968, extending protection to employment, access to goods, facilities and services and housing, and enabling the Race Relations Board to bring civil proceedings in cases where conciliation was unsuccessful. By 1975, although some of the most overt forms of racial discrimination were being challenged, and “No Blacks” signs were no longer commonplace, an evaluation of the legislation in a government white paper¹⁴ indicated that additional measures were needed if the discrimination and cumulative disadvantage – in employment, housing, health education – experienced by members of ethnic minorities was ever to be overcome.

The government acknowledged that most victims of racial discrimination do not complain, and advised, “Although it is necessary for the law to provide effective remedies for the individual victim, it is also essential that the application of the law should not depend upon the making of an individual complaint.”¹⁵

The government therefore included in the 1976 Race Relations Act (RRA) power for the specialised body, now the Commission for Racial Equality (CRE), to conduct investigations into public and private sector organisations to expose discriminatory practices. Under the RRA, the CRE can subpoena evidence and can serve notices requiring organisations to stop discriminating. Since 1977 the CRE has conducted more than 100 investigations. Some investigations are strongly resisted; some have resulted in major institutional change, for example recruitment practices in the armed forces. Others have led to changes in particular policies, for example, criteria for school admissions or housing allocations.

While relieving victims from having to prove discrimination, CRE investigations¹⁶ are still reactive, triggered by a suspicion of discrimination and limited in terms of enforceable remedial action to requiring the respondent to stop discriminating.

It would be wrong to suggest that giving individuals the right to seek redress was not of considerable importance. The RRA has enabled thousands of people to challenge discrimination, harassment, victimisation in their place of work, at schools, in restaurants and shops and in access to public and private sector services. However, despite successful outcomes¹⁷ of individual cases and exposure by the CRE investigations of patterns of racism and discrimination in different organisations, the facts of discrimination and disadvantage of ethnic minorities in Britain changed very little. There continue to be huge disparities in the rates of unemployment between ethnic minorities and their white counterparts. Ethnic minorities are over-represented amongst those stopped and searched by the police and amongst men and women serving prison sentences. Children from some ethnic minority groups have lowest rates of success in schools and highest rates of school exclusion. Ethnic minority families are more likely to be homeless and to live in over-crowded accommodation; they are more likely than their white counterparts to suffer ill health.

That this is the case is not news for the people who meet racism and discrimination on a regular basis. What jolted the whole of the British population to understand, possibly for the first time, what if means to be black in Britain was the 1998 inquiry into the failed police investigation of the racist murder of the black teenager, Stephen Lawrence. The Stephen Lawrence Inquiry heard evidence about every aspect of the police response, including the treatment of Stephen’s friend who was with him at the time and Stephen’s family. They also heard evidence from ethnic minority communities in various parts of Britain about racist crime and their treatment by the police and other agencies. The Inquiry formulated a definition of institutional racism:

“Institutional racism” consists of the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes, and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people¹⁸.

This definition moved the focus from individual acts of racism or discrimination to the racism that is rooted within institutions infecting all of their actions. From the evidence they received, the Inquiry was satisfied that the need to eradicate institutional racism was not a matter solely for the police.

It is incumbent upon every institution to examine its own policies and the outcome of these policies and practices to guard against disadvantaging any section of our communities¹⁹.

While the definition of institutional racism produced some negative reactions, especially amongst police officers who, erroneously, read it to mean that every officer is a “racist”, a majority of public authorities reluctantly accepted that the definition applied to them. For the first few months after the Inquiry, there was remarkable energy throughout the public sector, as bodies began to examine their policies and practices to identify ways in which they may be failing to take account of the needs of ethnic minority communities. For the first time in many organisations, senior managers and elected members showed an interest in the views and experience of the ethnic minority employees, and some efforts were made to talk to and learn from ethnic minority communities.

The government agreed to implement most of the Inquiry’s 70 recommendations. This included legislation to extend the scope of the RRA to all activities of the police and other public authorities. This would greatly increase the range of discriminatory acts that victims could challenge or the CRE could investigate, but on its own would not eradicate institutional racism. However, as a result of strong lobbying by the CRE in collaboration with Lord Lester of Herne Hill QC, a distinguished anti-discrimination barrister, and the work of a sympathetic (black) civil servant, by the time the Race Relations (Amendment) Act 2000 received royal assent it included a positive duty on public authorities to promote race equality, in the following terms:

Every body or other person specified in Schedule 1A²⁰ or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need:

a) to eliminate unlawful discrimination; and

b) to promote equality of opportunity and good relations between persons of different racial groups.²¹

Regulations impose on the main authorities certain “specific duties”, that is, mandatory practical steps intended to help them meet the above “general” duty. The CRE has explicit powers to enforce compliance with these regulations.

The vision of the CRE and others was that a positive duty to promote race equality would make a difference. It would force organisations to institutionalise anti-racism and to adopt and maintain new norms involving the promotion of equality and good race relations.

Consider, for example, the impact on the allocation of public housing. Under its RRA duty a housing authority would be expected to examine its existing policies and practices, consulting local communities and asking questions along the following lines:

a. are our criteria directly or indirectly discriminatory? For example, a policy that gave priority to people who had lived in the area for more than 10 years could be indirectly discriminatory if people from particular racial/ethnic groups with the same or greater housing need have been in the area for less than 10 years.

b. do our policies promote equality of opportunity? Are we aware of different housing needs? For example, do we provide equally for different household sizes of different groups? Do we enable Gypsies and Travellers to have suitable homes?

c. do our policies promote good relations between different racial groups? For example, how do we support victims of racial harassment? What housing-related sanctions do we impose on perpetrators?

If this scrutiny reveals a need for change, where should change occur: do we need to revise our policies or alter the way officers carry out these policies? What forms of intervention will be most effective to meet our duty to promote race equality?

The RRA duty on public authorities came into force in April 2001. It has not yet begun to approach the vision of its promoters. In January 2004, the Audit Commission²² published the report²³ of their investigation into the response by various local agencies and how well they were delivering improved outcomes to local black and minority ethnic communities. They found local agencies at different stages:²⁴

• intending: claim race equality is important but little motivation or understanding of the depth of change needed;
• starting: better understanding and vision but more likely to be reactive – recognise need for corporate approach but plans disconnected;
• developing: understand the issues and where they are trying to get to – ambitious targets, but need to prioritise;
• achieving: have vision – prioritised improvements to specific local outcomes – highly motivated – shifting resources.

The CRE has used its limited enforcement powers very sparingly. The energy to tackle institutional racism that followed the Stephen Lawrence Inquiry has waned. As the Audit Commission review shows, lack of clear corporate leadership is a main reason that agencies are still a long way from the “achieving” stage.

It is therefore interesting to note that the government intends to enact a new law that would impose a similar duty to promote equality for disabled people and has announced plans for a gender-equality duty as well.

In Northern Ireland, the Good Friday Agreement 1998, which was intended to bring an end to sectarian conflict and to establish the framework for NI self-government, included a commitment by the British Government “to create a statutory obligation on public authorities in Northern Ireland to carry out all their functions with due regard to the need to promote equality of opportunity in relation to religion and political opinion; gender; race; disability; age; marital status; dependants; and sexual orientation.” The Northern Ireland Act 1998²⁵ (NIA) did precisely that.

Under the NIA, public authorities must publish equality schemes approved by the ECNI. Before adopting a new policy, they are expected to assess its likely impact on all of the above grounds. Where the assessment indicates adverse impact on a particular group, then the authority must return to the aim of the policy and determine whether the policy should be modified or an alternative policy adopted instead. With a commitment to promoting equality, authorities may develop policies specifically to improve the opportunities for, say, Gypsies and Travellers, or for young Asian girls, where differential impact will be an unintended consequence.

The latest ECNI Report²⁶ noted the impact that section 75 had had on different public authorities. For government departments the impact was:

1. increased awareness of equality considerations in design, delivery and monitoring of policies and services;
2. increased engagement with the groups identified in section 75; and
3. changes and adjustments to policies and the delivery of services.

In her foreword, the ECNI Chief Commissioner includes as an area for improvement, “the importance of overarching high level policies such as the Programme for Government acknowledging the importance of section 75 and identifying the way in which policies emanating from the Programme should be assessed for equality impact.” Training is another area for improvement, so that people will have the skills and knowledge to mainstream equality into policy development and decision making at all levels.

A recent decision of the High Court in Northern Ireland²⁷ suggests that the courts may not yet be ready to play a leading role in enforcing statutory equality duties. The case concerned an application for judicial review of the failure by the Minister of State for Criminal Justice to consult on, or to consider, the impact on children and young people of proposed legislation for anti-social behaviour orders which could be used against anyone age 10 or above. The judge said he could find no arguable case. A reading of the judgement suggests that the judge did not understand the aim, let alone the contents of the NIA duty to promote equality.

To have laws that are intended to bring about institutional change is a huge step forward. None of the EC equality directives includes any such provision. Nevertheless, having legislation can only be a very first step; in each of the jurisdictions mentioned above there is some form of formal reporting and measurement of progress. There is concern by the groups intended to benefit from change and those advocating on their behalf that change is too slow, that public authorities are failing to have regard to equality, that equality is a lesser priority; where the duty falls onto employers, that their equality obligations are outweighed by commercial priorities.

Inertia remains very strong, and achieving equality demands change. Unless the promotion of equality is ensconced at every level and regularly reinforced, and unless it remains an unequivocal priority for those at the heart of government and at the top of industry and commerce, there is a real risk that the journey to equality could be seriously, if not permanently, delayed.

Endnotes:

1. Barbara Cohen is an independent discrimination law consultant based in the UK. She works with public authorities and NGOs in the UK, EU and Central and Eastern Europe on drafting, implementing and enforcing anti-discrimination laws. Previously she was Head of Legal Policy at the Commission for Racial Equality in London.
2. See Sandra Fredman. 'The Future of Equality in Britain'. Equal Opportunities Commission Working Paper, No. 5, Autumn 2002.
3. See Sandra Fredman. 'The Future of Equality in Britain'. Equal Opportunities Commission Working Paper, No. 5, Autumn 2002, pp. 10 ' 16.
4. Delivery Equality for Disabled People. Department for Work and Pensions. July 2004, Cm 6255, page 17.
5. Catholic male unemployment still 2.5 times that of Protestant male unemployment.
6. For the purposes of the law, 'affirmative action' is defined as 'action designed to secure fair participation in employment by members of the Protestant, or members of the Roman Catholic, community in NI, including (a) the adoption of practices encouraging such participation; and (b) the modification or abandonment of practices that have or may have the effect of restricting or discouraging such participation', Article 4, Fair Employment and Treatment (NI) Order 1998.
7. Fair Employment in Northern Ireland: A Generation On. Bob Osborne (ed.). Blackstaff Press and the Equality Commission for Northern Ireland. ISBN 0-85640-752-6.
8. Section 2, Employment Equity Act 1998.
9. Section 1, Employment Equity Act 1998.
10. Employers with 50 or more employees or with an annual turnover at or above a specified level; municipalities and most state institutions and employers appointed as designated employers by the terms of a collective agreement, Section 1, Employment Equity Act 1998.
11. South Africa Labour Market Survey 2002 showed an economically active population of more than 16 million.
12. Commission for Employment Equity Annual Report 2002-2003. South Africa Department of Labour. July 2004, p. 59.
13. COSATU Weekly, 16 July 2004.
14. 'Racial Discrimination'. Home Office. September 1975.
15. Ibid., para. 36.
16. and investigations by the Equal Opportunities Commission under the Sex Discrimination Act 1975 and by the Disability Rights Commission under the Disability Rights Commission Act 1999.
17. Contested race discrimination cases at the employment tribunal in England and Wales during 2000-2001 had a 16% success rate, compared to 20% for disability discrimination, 28% for sex discrimination and 31% for unfair dismissal. Labour Research, April 2002.
18. The Stephen Lawrence Inquiry. Report of an Inquiry by Sir William Macpherson of Cluny. CM4262-I, para 6.34.
19. Ibid., para 46.27.
20. Schedule 1A includes all government ministers and central government departments (including executive agencies), local government, police, health institutions, governing bodies of all publicly maintained schools, colleges and universities, audit and inspection agencies, bodies that regulate the professions, public bodies concerned with the arts and broadcasting, etc. It has been amended by regulations in 2001 and 2003.
21. Section 71(1) Race Relations Act 1976 as amended by Race Relations (Amendment) Act 2000.
22. An independent public body with responsibility to ensure that public money is spent economically, efficiently and effectively in the areas of local government, housing, health, criminal justice and fire and rescue services.
23. 'The Journey to Race Equality'. Audit Commission Report, Jan. 2004.
24. 'The Journey to Race Equality' Audit Commission Report, Jan. 2004, p. 19.
25. Section 75 and Schedule 9.
26. Report on the Implementation of the Section 75 Statutory Duties 2002-2003, ECNI.
27. R -v- Minister of State for Criminal Justice ex parte Northern Ireland Commissioner for Children and Young People [2004]NIQB 40 23.06.04.