A Reflection on Discrimination in Practice
One of the interesting lessons I have learned as a discrimination lawyer is that unlawful discriminatory and harassing behaviour is not the sole preserve of the unpleasant, the bastard, the fascist, the stereotyped angry bigot.
No, surprisingly often it is those that perceive themselves to be “nice” or “progressive” or “woke”. Including the sort that support “awareness days” and wear lanyards with the flag of a protected characteristic. The hashtag #ally can be in practice the hashtag #discriminator.
There are considerable cohorts of these nice people working (and causing unlawful discrimination or harassment) in the civil service, unions, local government, universities, NGOs, etc. As for example, the recent settlement between two civil service bodies and former civil servant Eleanor Francis, including rewriting a discriminatory DEI policy shows.
In the private sector, such people are often attracted to Human Resources and line management roles and thus influential in decisions around policy making, grievances, sickness absences and disability related reasonable adjustments.
Their self image is of ally and anti-racism, disablism etc. However sometimes decisions they make and policies that they administer can and do cause unlawful discrimination.
So, the witness for the Respondent in a discrimination claim is less likely to be a skinhead than an average looking, mild mannered HR manager, university administrator or even human rights barrister.
This would be unremarkable save for the oft-too frequent hyperbolically horrified response to allegations of discrimination, stated in grievances or letters before claim from solicitors like me when I was practising. The response from them were like shutters of offended incomprehension coming down. “Who me, be a discriminator? But how can that be? I am a nice person” seems to overlay their reaction.
Like Jeremy Corbyn and his allies not recognising or acknowledging anti-Semitism they reference their many years of supporting anti-discrimination causes, training and initiatives. They are frozen in their denial.
It made negotiating a settlement much harder because they are in a state of complete denial. It often took a period of mental adjustment by them, the intervention of a more senior person or the strong advice of their own lawyer to remove the mental obstacle. This increases the overall cost to both parties.
But what explains this inconsistency between their self belief and their practice? There is plenty of good academic evidence that members of groups that espouse tolerance are so often intolerant, especially of those with different worldviews.
But I think it is more basic than that. Rather we are all capable of unlawful discrimination and harassment, overtly or inadvertently. We just need the humility and open-mindedness to face up to that reality. Then we need to do as much as we can to prevent unlawful discrimination; but also have the self-confidence, resilience and determination to cope, take responsibility and change our ways if credible evidence is presented that we have been the discriminator. That is the real measure of equality and inclusion in practice.