Laurence Lustgarten

Taking Nazi Law Seriously

Book reviewed in this article: Michael Stolleis, The Law Under the Swastika: Studies on Legal History inNazi Germany

The Public Sector

Thus far we have looked at the problems of employment discrimination either in terms of national patterns or in relation to the practices of private employers. The public sector, in which hiring policies are much more standardised and centralised, and which may be more directly guided by government policy, requires separate treatment. In this chapter we first look at employment in the Civil Service and the nationalised industries. Next considered is the potential use of the power of central government in the market-place — as a consumer of goods produced in the private sector — as a means of securing that its contractors do not discriminate, or indeed make active efforts to ensure equal opportunity. The last area examined is employment by the police, in which decisions are largely made independently by each Force, though in some respects uniform national standards must be applied.

The Grounds of Discrimination

Those designing anti-discrimination legislation must at the outset make three fundamental choices. One concerns the areas of behaviour to be regulated: employment, housing, personal and public services and so forth. These may be called matters of scope.

Concepts of Discrimination — History and Theory

This chapter will examine the meaning of discrimination in convergent but analytically distinct ways. We look first at its evolution in British legislation, considering simultaneously how these statutory changes embodied an altered view of the problem of racial inequality, and then analyse diverse concepts of discrimination at a more abstract level. Ultimately our concern is with the way in which discrimination may be applied as a legal concept. Any such definition, however, is at bottom the expression in a peculiar specialised vocabulary of what may, rather loosely, be termed a social-philosophical concept; and it is only when work at this level is complete that the translation into law may begin. Hence both levels of analysis are undertaken.

Problems of Proof

The broadened definition of the evil, and the enlarged scope and application of the present Act, do not of themselves ensure its increased effectiveness in combating discrimination. This will depend above all else on whether the legal principles and procedures developed to govern proof of discrimination are not unduly restrictive. This chapter will explore the practical difficulties, perhaps seemingly humdrum but ultimately crucial to the effective enforcement of the law, that seem likely to arise in litigation. It will first look at problems specific to direct discrimination, then at those of indirect discrimination, and finally at matters common to both. Whilst they will be discussed in the context of the adjudication of individual complaints, most are equally relevant to formal investigations undertaken by the CRE. A final section will analyse the remarkably contentious question whether an employer is entitled to withhold information in his possession from a complainant on grounds of confidentiality.

Black Workers — Discrimination and Disadvantage

The 1968 Act made racial discrimination in employment unlawful for the first time in English history. Although, or perhaps because, this is the area of paramount importance in ensuring a decent life for minorities, it has also been the one least amenable to improvement. PEP estimated that in the early 1970s, discrimination was occurring on a massive scale, including ‘tens of thousands’ of acts of direct discrimination in recruitment alone each year.1 It further estimated that a black white-collar worker had a one in three chance of suffering discrimination when applying for a job, and that for an unskilled worker the odds rose to evens.2 These figures omit discrimination in relation to promotion, progression and dismissal; they do not begin to take account of the incidence of indirect discrimination, which was not unlawful at the time the PEP survey was undertaken. Yet the same research showed substantially greater improvement in the area of housing, and in the view of the Race Relations Board, the 1968 Act led to the virtual disappearance of discriminatory advertisements, as well as to the removal of discriminatory conditions in insurance and other financial arrangements.3 Although PEP did conclude that employment discrimination had lessened as well, its greater persistence makes it the testing case for the effectiveness of legislation.

Individual Enforcement of the Act

One of the significant innovations of the 1976 Act is that an individual who feels he has suffered discrimination may bring an action on his own behalf. On the face of it this hardly seems remarkable; where a statute creates new rights for the benefit of a category of individuals it usually enables the protected group to enforce those rights in some judicial forum. Yet this was not the position under the previous legislation, and in order to understand the present provisions fully a brief review of the structure of enforcement under the 1968 Act is necessary.

Indirect Discrimination — The Legal Issues

In Chapter 1 we examined the philosophical premises underlying the concept of indirect discrimination, as well as the history of its incorporation into British legislation, but postponed consideration of its precise legal expression and likely practical effects. That is the task of the present chapter, which examines seriatim each legal element in the statutory definition (s. 1 (1)(b); see Statutory Appendix for full text).

Exclusions and Exceptions

Few enactments cover a particular field comprehensively. In response to the pressure of interest groups, belief that legal intervention is impractical or inappropriate in certain circumstances, a decision that certain manifestations of the problem addressed are of little importance, or sometimes simply due to draftsman’s error, certain categories of people or activity are generally exempted. Yet however reasonable the case for a particular exception may seem, the cumulative effect of reasonable arguments may be that the net becomes a sieve. One respect in which the present Act is a marked improvement on its predecessor is that its employment provisions are subject to many fewer restrictions of scope and application. None the less some exceptions, considered in this chapter, remain.

Employment Discrimination Law — The Main Provisions

Employment discrimination is governed mainly by s. 4, reproduced in the Appendix. It will be seen that s. 4 (1) concerns applicants or inquirers, whilst s. 4 (2) relates to employees. The discussion of employment discrimination in this chapter will follow this sequence. However, three technical points, applicable equally to both subsections, may be examined first.