Institutional Discrimination
Author(s): Christopher McCrudden
Source: Oxford Journal of Legal Studies, Vol. 2, No. 3 (Winter, 1982), pp. 303-367
Published by: Oxford University Press
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INSTITUTIONAL
DISCRIMINATION
CHRISTOPHER MCCRUDDEN#
The continuing absence of racial minority groups from importantareas of British
life has become a majorissue of social policy. It will be the argumentof this article
that it should also become an importantissue of legal policy.
Since the i96os, successive Labourand ConservativeGovernmentshave sought
to deal specifically with the perceived problems of a multi-racial society in a
number of ways: (i) by controlling immigration; (ii) by the enactment and
enforcement of anti-discriminationlegislation; (iii) by providing financial aid to
local government areas in which significant numbers of immigrantshave settled;
and (iv) by the establishment of local community relations councils which were
given the task of promoting harmonious race relations. In this article I will be
concernedmainly with an expandedrole for the second of these approaches.'
Two main features characterizedthe second approachuntil recently. Firstly, to
adopt the language of economics, anti-discriminationlegislation operates mainly
on the 'demand side'. Anti-discriminationlegislation was intended to affect the
behaviour(and, ultimately,the attitudes)of those who were usually in the position
of choosing whether to engage in social and economic intercourse,e.g. employers,
house owners, landladies,pub managers,etc. The financialsubventionstrategy, on
the other hand, acted on the 'supply side' (i.e. it sought to change certain
characteristics of those in the position of offering their services or money, e.g.
applicants for jobs, housing, etc.) or it sought to increase the net amount of
opportunities (e.g. by stimulating the development of new jobs). Secondly, antidiscrimination legislation concentrated (unsurprisingly) on the eradication of
discrimination while financial subventions were used mainly to counter
'immigrantdisadvantages',such as lack of facility in English.
This second difference between the two strategies has more recently been
blurred. In the mid I97os a new policy was adopted, at least according to one
reading of recent history, of supplementingthe use of governmentexpenditureby
requiring a considerably increased scrutiny of exclusionary practices on the
demand side. By requiringemployersand others to demonstratethe need for such
exclusionary practices (educational qualifications, or facility in English, for
*Fellow of Lincoln College, Oxford. I would like to thank the following for comments on earlier
drafts of this article: Patrick Atiyah, Juliet Cheetham, Paul Davies, Mark Freedland, Bob Hepple,
Harold Levy, Joe O'lIara, Peter Sanders, Jeremy Waldron and participants in the Oxford BCL
Seminar on Human Rights (1981-82), especially Sandra Fredman. The Home Office also provided
valuable assistance.
I C. Jones, Immigration and Social Policy in Britain (Tavistock I977). In this paper the racial
minorities in Britain with which I will be concerned are West Indians, East African Asians and
Asians from the Indian sub-continent.
303
3o4
INSTITUTIONAL
DISCRIMINATION
example) it was hoped to reduce the degree of exclusion. This scrutiny was to be
carried out under anti-discriminationlegislation, the role of which was to be
considerablyexpanded, particularlythrough the incorporationof a new meaning
of unlawful discrimination. Such an approach would have the additional happy
consequencefor an economicallypressed Governmentof appearingto justify a less
rapid increase in Governmentexpenditure to stimulate supply side changes than
would otherwise have been required.
There are a number of conceptions of what constitutes discrimination and
considerabledisagreement as to its meaning.2To what extent, firstly, should we
distinguish between discriminationand 'prejudice'?Prejudicemay be regardedas
neither a necessary nor a sufficientcomponent of discrimination.Are the concepts
to be regardedas necessarilycausally linked in a particularsituation? Secondly, if
it is shown that, statistically, a particulargroup possesses a particulartrait, then
should an individual be regardedas discriminatedagainst, if, being a member of
that group, he is assessed on the basis of the statistical prediction rather than on
whether he himself possesses that trait (so called 'statistical discrimination')?Are
such probable indicators discriminatory, or are they to be treated merely as
distinct and separate factors, though they contribute to inequality in the labour
market between the majority and minority? Thirdly, to what extent should we
distinguish between discrimination and separateness?What relationship should
there be between the concept of segregation and that of discrimination? Should
the conclusion be reached that segregation is or may be caused by
'discrimination'? Fourthly, to what extent should we distinguish between
discrimination and 'inequality'? Confusion may arise between process and
product, between 'the process of discriminating (discriminatorybehaviour) and
the resultant of this process'.3Inequality may be used as one index by which the
presence of discrimination is assessed, but is an act to be regarded as
discriminatory simply when minority group members are disproportionately
adversely affected? Take the example of entrance examinations which are not
designed to exclude blacks from a university but which function to do so. It is
situations such as these that Lord Scarmanappearsto consider possible examples
of 'institutionalracism'.4
In this article I shall examine the movement which has taken place in British
law towards developing a legal meaning of discriminationwhich encompasses the
idea of 'institutionalracism'(or 'institutionaldiscrimination'as it may, ratherless
confusingly, be termed). Essentially what this changed approachhas sought to do
is to take advantage of the uncertaintyof the meaning of discriminationin order
For discussion of varying conceptions of discrimination, see R. Brown, Rules and Laws in
Sociology (Routledge Kegan Paul 1973) 36; H. E. Moore, 'Discrimination' in S. J. Gould and
W. L. Kolb, eds, A Dictionary of the Social Sciences (Tavistock 1964) 203-4; O. Fiss, 5 Phil and
Pub Aff I07, 108--I 12.
3 H. M. Blalock Jr, Towards a Theory of Minority-GroupRelations (John Wiley 1967) 15.
4 Home Office, The Brixton Disorders: Report of an Inquiry by the Rt. Hon. the Lord Scarman
OBE (Scarman Report), (HMSO 1981) Cmnd 8427 para 2.22.
2
CHRISTOPHER
McCRUDDEN
305
to increase the scope of what may be prohibited while, at the same time, trading
on the emotive appealof the traditionalusage of the term.
I have chosen to concentrate on British and American use of racial discrimination legislation5because, although similar developmentshave taken place
in discrimination law elsewhere,6the implications of the move sketched above
have been more rigorously analysed in these jurisdictions. The change in Britain
was also largely influencedby Americanlegal precedents.Racial discriminationis
the primaryfocus although similardevelopments in the area of sex discrimination
will be noted. I will largely restrict discussion to the area of employment
discriminationbecause, again, the implications of the adoption of this expanded
role for law and lawyers has been more fully considered in this context than in
most others. More particularly,however, consideration of British and American
precedentsis more easily appreciatedand more relevantin this limited area. I shall
examine the developmentof the new idea of unlawful employmentdiscrimination
in the United States and, subsequently,in Britain. I shall then consider some of
the more importantaspects of the British definition as it is currentlyinterpreted.I
begin, however, by examining in some detail the meaning of 'institutional
discrimination'in both countries.
INSTITUTIONAL
DISCRIMINATION
IN THE UNITED STATES
Until the late 1950S the study of American and British race relations was
dominated by the study of prejudice. Discrimination was seen as the outward
manifestation of white prejudice. The effect of what Zubaida has termed this
'preoccupationwith prejudiceand discrimination'was 'to exclude an alternative
approach akin to the classic sociological concern with class and stratification
systems as features of the social structure of whole societies. Such an approach
would ask questions about the nature of the relationshipof ethnic or racialgroups
to the economic and political systems of the wider society.7
By the late i960s, however, the predominant approach in the United States
5 The legislation discussed is the (British) Race Relations Act 1968 and the Race Relations Act 1976
(which repealed the 1968 Act), and the (American) Civil Rights Act I964, Title VII (as amended),
42 USC para 2oooe, et seq.
6 Cf Canada, see W. Black, 1980 Canadian Human Rights Reporter(Feb) C i; Northern Ireland,
C. McCrudden, 'The Experience of the Legal Enforcement of the Fair Employment (Northern
Ireland) Act 1976' in R. D. Osborne and R. J. Cormack, Religion, Education and Employmentin
Northern Ireland (forthcoming); the Republic of Ireland, see Employment Equality Act, 1977,
s 2(c); and the interpretation by the European Court of Justice of Art 48 of the EEC Treaty, see
Case 152/73 Sotigiu v Deutsche Bundespost [I9741 I ECR 153, Case 61/77 Commissionv Ireland
(1978] ECR 417, Case 237/78 Caisse Regionale d'Assurance Maladie (CRAM), Lille v Palermo
[I979] ECR 2645, D. Wyatt and A. Dashwood, The Substantive Law of the EEC (Sweet and
Maxwell 1980) 138-I40 and B. Sundberg-Weitman, Discrimination on Grounds of Nationality
(North Holland 1977), esp Chap 8.
7 S. Zubaida, 'Sociologists and Race Relations' in Nuffield Foundation, Problems and Prospects of
Socio-Legal Research (Proceedings of a Seminar, Nuffield College, Oxford, June-July 1971) (1972)
125.
INSTITUTIONAL
306
DISCRIMINATION
changed to one which emphasized institutional and structural reasons for
exclusion in addition to 'prejudiced discrimination'. Adjectival use of
'institutional'or 'structural'before 'discrimination'or 'racism'became common to
describe the exclusion of blacks from housing and employment for whatever
reason. In I968 Leon Mayhew used the term 'structural discrimination' to
describe such exclusion.8 Knowles and Prewit in I969 termed as 'institutional
racism' any situation where 'behaviourhas become so well institutionalizedthat
the individual generally does not have to exercise choices to operate in a racist
manner. The rules and procedures of the large organization have already
prestructuredthe choice. The individual only has to conform to the operating
norms of the organizationand the institution will do the discriminatingfor him'.9
American economic literature dealing with the labour market in particular
adopted what was termed a more 'institutional' approach to the problems of
exclusion from employment. 'Prejudiceddiscrimination'came to be seen as only
one of a number of exclusionary aspects of the labour market.?1A variety of
'institutional' approacheswere developed. One of these, advocating the position
that not one but multiple labour marketsexist came to the fore in the early I970S.
An internal and an external labour market were identified. As described by La
Mond, jobs are classified according to sources of recruitment. Jobs filled from
external sources are lower-level positions. Higher-level jobs are filled through
promotion of presently employed workers. Promotion ladders to upper-leveljobs
are thus subject to 'formal administrative rules and informal information networks'.11Because potential for advancementis largely determinedby the original
entry-level job, the economic consequences of discrimination against blacks in
entry positions which provide access to higher-leveljobs is likely to result in
proportionatelyfewer black promotions.
An outgrowth of the internallabour marketanalysiswas the dual labourmarket
hypothesis first formulated by Peter Doeringer and Michael Piore and gaining
wide circulation with the publication of their book in I97i.12 According to this
hypothesis the labour market is essentially divided into primary and secondary
sectors. Primary sector jobs have high wages, good working conditions, stability,
and opportunity for advancement, while secondaryjobs have low wages, poor
working conditions, little security or possibility of advancement.Movement from
the secondary to the primary sector was restricted due to a number of threshold
barrierssuch as union membership,educationalqualifications,etc. Blacks tended
to be restrictedto secondarysectorjobs.
8 L. Mayhew, Law and Equal Opportunity(Harvard U Press 1968) 67-72.
9 L. Knowles and K. Prewitt, Institutional Racism in America (Prentice Hall 1969) 143.
io See e.g. R. Marshall, 123 J of EconomicLiterature 86I (I974).
I A. M. La Mond, 'Economic Theories of Employment Discrimination' in P. A. Wallace and A. M.
La Mond, Women,Minorities and EmploymentDiscrimination (Lexington Books 1977) 6.
12 P. Doeringer and M. Piore, Internal Labor Markets and Manpower Analysis (Lexington Books
I971).
CHRISTOPHER
McCRUDDEN
307
An alternative approachwas developed by Marshall. It incorporateda number
of features of the previous approaches,combining analyses of the motives of the
various actors with an examination of the contexts within which they operate.13
The model, which appearsto have been significantlyinfluencedby that developed
by Dunlop in Industrial Relations Systems,'4 'assumes discrimination to be
motivated by a combination of status and job control-that is, whites are
concerned about their occupational status and will attempt to monopolize job
opportunities for themselves. They also develop mechanisms to improve their
power relative to employers and competitorswho would weakentheirjob control'.
Wages are one importantaspect of the job, but others are also stressed, including
'security, safety, prestige, generalworking conditions, participationin rule making
and the mechanisms to control entry to jobs and occupations'.'5The motives and
power relationships between the various participants in the system and the
environment in which these participants operate are stressed. Environmental
influences include such factors as race relations in the community, business
conditions and product and labour market conditions.'6Employmentpatterns are
'productsof profit-maximizingdecisions made by employers,influencedto varying
degrees by actual and anticipated reactions from unions, white employees, black
employees, the black community, customers, Government officials and public
opinion'.17 Institutional factors are stressed and the role of prejudiced
discrimination alone is downplayed as an influence on racial employment
patterns.18
With analyses such as those of Marshall,and Doeringer and Piore, institutional
factors came under increasing scrutiny. Past discriminationin employment was
found to affect adverselythe current position of blacks in the labour marketboth
psychologicallyand institutionally.The psychologicaleffect was illustratedby the
reluctanceof black workerson occasion even to apply for employmentin a firm(or
membership in a union) which was known to have been discriminatory in the
past.'9 The United States Civil Rights Commission (USCRC) in its investigation
of referralunion practices, providedan apposite example. 'Experiencein the trade
and under the collective bargaining agreement is the most frequently used
criterion in determining eligibility for referraland in determiningwhere persons
are placed in priority groups if they are eligible for referral'.20Since minorities in
the past were specifically excluded from some of these unions, experience was
more difficult to accumulatefor blacks than whites. Even assuming present non13 R. Marshall,'Black Employment in the South' in Wallace and La Mond, op cit.
14 J. T. Dunlop, Industrial Relations Systems (Holt I959).
15 Marshall,op cit, 62.
I6 Ibid., 70.
17 Ibid., 70-71.
i8 Ibid., 65-66.
19 See, e.g. United States Civil Rights Commission (USCRC), The Challenge Ahead: Equal
Opportunity in Referral Unions (USCRC 1976) 86.
20 Ibid., 74; 'referral'unions 'refer'workersfor employment.
308
INSTITUTIONAL
DISCRIMINATION
discrimination by the unions, reliance on the 'experience' criterion adversely
affectedproportionatelymore blacks than whites.21
So too where discrimination in the past contributed to the growth and
perpetuation of a predominantly white workforce, continuing reliance by an
employer on present employees to refer new employees, was found to exclude
blacks disproportionately.Past discriminationby employees and unions was also
seen to render nepotistic practices and the application of seniority provisions to
black workers,22 as considerable barriers to black penetration of certain
occupations.23 A worker's seniority in many American industries largely
determinedhis chances of promotion, layoff and recall. Where blacks in the past
were confined to particulardepartmentsin a company and departmentalseniority
was in operation,even if company and union ceased to discriminate,a black would
be loath to change to a better departmentsince he would lose the seniority he had
gained in his segregateddepartmentand start at the bottom of the seniorityladder
in the new department,thus leaving himself more open to being laid off.24
Even if a plant-wide seniority system was in operation,blacks were also found
to be adverselyaffectedin certain circumstances.Wherediscriminationin the past
led to a predominantlywhite labour force, for example, in a predominantlyblack
neighbourhood,but the company later hired without discriminationand therefore
from the surrounding black population, layoffs would still continue to be
predominantlyblack, where plant-wide seniority was used as the criterion. The
rubber tyre industry provided an example. After the industry switched from
departmentalto plant-wide seniority in the 195s, even though new occupations
were opened to blacks, attempts to retain the number of black workers were
largely unsuccessful since layoffs came subsequently from the predominantly
black, new recruits.25
Other criteria arising not out of past discrimination in a particular plant or
industry but from what might be called 'societal discrimination', i.e.
discriminationin the larger society, were also found to have a disproportionately
exclusionary impact on blacks applying for employment and promotion. An
employer's reliance, for instance, on a record of arrests as a bar to employment
had such an effect.26 Research showed that more blacks proportionatelythan
whites were arrested(ratherthan convicted).
The use by employersof psychological tests as a means of screening applicants
for employment was found to have a similarly disproportionateeffect on black
21 Ibid.
It is not my purpose here to assess the net benefits or losses sustained by black workers because
of these institutional practices.
23 V. M. Briggs, 5 Journal of Human Resources 371-378 (I970) who cites clerical jobs in the
petroleum industry.
24 For a recent example in the trucking industry, see USCRC, op cit 96. See also, H. R. Northrop
et al, Negro Employmentin Basic Industry (U Penn Press I970) 406.
25 Briggs, op cit 379.
26 E. Green, 35 American Sociological Rev 476 (I970).
22
CHRISTOPHER
McCRUDDEN
3o9
applicants, since blacks usually scored lower on the tests than whites. This
became particularlyimportantas blacks began to rise into occupationswhich used
such tests. In the i960s, particularlyin the South, such tests were introduced as
screening devices for hitherto 'untested' jobs. It is a basic principle of
psychological employment testing that before any ratings or tests are used as a
basis for making decisions about actual people who apply for specificjobs these
ratings and tests should be evaluated according to their effectiveness by some
form of systematic research.Psychological tests used to screen white middle class
applicants may not be effective in predicting the job capacity of a ghetto black.
Without validating the test as to its predictability with ghetto blacks any
comparisonof scores between ghetto applicantsand middle class white applicants
may be inappropriate.So too the usefulness of a test in one type of employment
does not guarantee similar validity in another. Thus quite apart from the actual
ability of blacks to do the job, the use of unvalidatedtests developedfor one group
or one job situation being applied to other groups and other situations was found
to be contributing to black exclusion.27The Kerner Commission emphasized in
I968 that such '[a]rtificialbarriersto employment and promotion'would have to
be removed by both public agencies and private employers, before blacks could
compete effectively in the labour market.28It is disappointingthat no similar call
to action was made in Lord Scarman'sReport, for it is arguablyas relevant for
Britain as it was for the United States.
INSTITUTIONAL
DISCRIMINATION
IN BRITAIN
The comparatively recent immigration of British racial minority groups
distinguishes them from the black population in the United States though not
from other minority ethnic groups in the United States, such as Cubans, Puerto
Ricans and Chicanos. Over nine-tenths of black and brown adults in Britain in the
mid I970s were people born abroadwho had come to Britain within the previous
twenty years;29 half had come within the previous twelve years. Particularly
insofar as this first generation is concerned, the fact of immigrantstatus appears
to entail disadvantages to which neither the second generation (i.e. those 40 per
cent30who arrived at an early age or were born in Britain) nor the indigenous
white populationis directly subject:the lack of equivalenceof skills, education in a
foreign system, language differences, the effect of coming from a largely rural,
third world environment into a highly industrialized, urban culture. These
27 See J. J. Kirkpatrick,R. B. Eiven, R. S. Barrett and R. A. Katzell, Testing and Fair Employment:
Fairness and Validity of Personnel Tests for Different Ethnic Groups (NYU Press I968), R. M.
Guion, 5 Industrial Relations 20 (1966).
28 United States Government, Report of the National Advisory Commission on Civil Disorders
(Kerner Report) (Bantam Books 1968) 416.
29 D. J. Smith, RacialDisadvantage in Britain (Penguin 1977) I4.
30 G. R. G. Lomas and E. Monk, The Coloured Population of Great Britain (Runnymede Trust
1977).
3Io
INSTITUTIONAL
DISCRIMINATION
characteristicshave been shown to have had seriously disadvantagingeffects on
the West Indian and Asian immigrantpopulation.3'
The relative recency of this immigrationhas meant that Britain has had for the
first time to find solutions to the new problems which have arisen from its
transformationto a permanentlymulti-cultural,multi-racialsociety. The sense of
the newness of the issues is one of the most striking features of the reactions to
this immigration. Issues of 'race relations' in Britain are still significantly
influencedby the immigrationissue. Disadvantage and exclusion are still thought
of as (and are to some extent) the result of the immigrantorigin of the minority
group population.
The discriminationwhich has resulted from the immigrationhas also had much
less time to become institutionalized in Britain in the way it has in the United
States. The position of minorities in Britain thus seems considerablymore fluid
than in the United States. The late I96os saw increasingly expressed fears,
however, that discrimination in Britain might become combined with the
inequalities between majority and minority groups to produce a form of
institutionalized discrimination more similar to that in the United States than
discrimination in Britain had previously been thought to be. And this fear has
increased since then because of a greater awarenessof the reality of exclusion and
of the effects of such exclusionon public order.
By the early 1970s, an approach drawing on American developments and
concentrating on institutional and structuralconsiderationsin race relations was
developing in Britain.32It coincided with and was strengthenedby the adoption
by some economists of alternative explanations of poverty, which also stressed
institutional structures in addition to individual characteristics.33A body of
British literature developed which re-examined the inter-relationshipsbetween
race, employment,housing and poverty in an attempt to neglect neither the 'racial'
element nor the structures and institutions of the labour market. Hepple, for
example, adapted Dunlop's work for use in Britain in much the same way as did
Marshall in the United States. Having defined two principal ways in which the
problem of employment discrimination could be studied, he rejected earlier
approaches which examined 'the generalized attitudes and behaviour of those
In addition to Smith, op cit, see P. L. Wright, The Coloured Workerin British Industry (OUPIRR 1968); Community Relations Commission (CRC) Evidence to the House of Commons
Select Committee on Race Relations and Immigration (hereafter 'Select Committee on Race'),
Problems of Coloured School Leavers, Session 1968-69, Evidence, HC 413 II (HMSO I969)
para 22; Department of Employment (DE), Final Triennial Report by the National Youth
Employment Council (HMSO 1974) 26; T. Jupp, Race Relations (No 19, Summer 1974) 27; DE,
Take 7 - Race Relations at Work (HMSO 1972) 97; S. St. P. Slatter, The Employmentof NonEnglish Speaking Workers:What Industry Must Do (CRC 1974) 13-14.
or Workers' in S.
32 Zubaida, 'Sociologists and Race Relations' op cit I25; Allen, 'Immigrants
Racialism
and
Race
IoI.
1971)
ed,
Zubaida,
(London
33 P. Townsend, Poverty in the United Kingdom (Pelican 1979).
3'
CHRISTOPHER
McCRUDDEN
3I
persons who are in a position to discriminate'.34Instead he preferreda second
approach which 'relate[s] the question of racial discrimination to the system of
industrial relations as a whole'. Such an approach had several advantages. 'It
allows full account to be taken of structural and institutional factors such as
managerialdecisions, trade union rules, collective agreements,social conventions,
law and accepted customs and practices ... it becomes possible to offer an
integrated view of the whole complex of factors which influence the position of
ethnic minorities at work'. To concentrate only 'on particular aspects' was to
'present a partial view, accurate and valuable within limits, but of necessity
distorted'.
By the late i96os there was thus developing a concern that the demonstrably
unequal position of the 'immigrant',particularlyin the labour market, could not
entirely be explainedby the largely immigrant status of the minority workeror by
'prejudiced'discrimination. In particular,concern over the status of the 'second
generation' stimulated this re-examination. Studies began to turn up examples
where neither prejudiceddiscriminationnor immigrantdisadvantagecontributed
at all (or only in part) to the disadvantaged status of minority groups. In Britain
too 'institutionalracism' became a term used to describe such inequalities.35As in
the United States one example of such discrimination was seen to be the direct
effects in the present of past discrimination, leading to minority group workers
not even applying for housing or for work at a particularplant.36Wright, for
example, noted that in certain instances, factors such as discriminationin housing
and accommodationcontributed to black concentrationin particularareas which
in turn led to limitations on the range of jobs available to coloured workers to
those within reasonabletravellingdistances of the 'colouredquarter'.37
Situations in addition to those in which discriminationin the past contributed
to present disadvantages also became apparent. Knowledge by employers of
immigrantdisadvantages such as lack of facility in English was seen as leading to
a situation where an easily observed characteristicsuch as race was coming to be
used as a relatively cheap 'screening device' by employers-an example of
'statistical discrimination'.38If an employerbelieved that the probabilityof a black
worker having certain necessary work characteristics was less than the corresponding probability for a white worker, then he would prefer to hire only white
workers. Non-whites, it was feared, might come to be hired mainly for jobs for
which the characteristics in which they were suspected of being inferior were
34 B. Hepple, 'Employment' in S. Abbott, The Prevention of Racial Discrimination in Britain
(OUP-IRR 1971) I57-8 from which the following quotations are taken. For subsequent
discussion of the importance of seeing race within the context of the industrial relations system,
see D. Brooks and K. Singh, I New Community272 (1972).
35 A. Dummett, A Portrait of English Racism (Penguin 1973) 131.
36 Select Committee on Race, The Problems of Coloured School Leavers, Session I968-69, Report
HC 413 I (HMSO 1969) para 99.
37 Wright, The Coloured Workerin British Industry op cit 56.
38 Supra 304.
312
INSTITUTIONAL
DISCRIMINATION
relatively unimportant.Thus the assumed characteristicsof the group would be
used to determineemployabilityof the individual.Because of the cost of obtaining
full information about individual workers, use of the information which was
available to the employer would be (in an economic sense) an efficient way of
taking decisions.39
Where the informationabout the characteristicsof the immigrant and the nonimmigrantgroups was correct, such 'statistical discrimination',it was argued,was
likely to be widespread and persistent. Even if the information was incorrect, it
was by no means certain that such discriminationwould cease. Imperfectionsof
information might result in its continuance. Such a situation may explain the
situation found by the 1974 Political and Economic Planning (PEP) study of a
foundrywhich employedWest Indians. In the 1950s a decision had been taken not
to employ Asians because of language problems.'Since then recruitmenthad been
by recommendation from existing workers, or, in other words, through the
grapevine, and this had tended to exclude racial groups other than the whites and
West Indians alreadyat the foundry'.40
Structuralistlabour market theories have come to be applied,largely as a result
of American research, to analyse the situation of minority group workers in
Britain. The dual labour market hypothesis in particularhas become fashionable
in Britain.41Nicholas Bosanquet, for example, assessed the evidence for the
presence of such a dual labour market in Britain and found some ('though ...
blurred')evidence in support of its presence.42Rather than being diverted into an
assessment of whether the thesis is 'correct'or not for Britain, what is important
is that, in the words of Sheila Allen and ChristopherR. Smith, '[t]he dual labour
market approach firmly reorientate[d] research and policy towards the
characteristicsof the market and jobs within it and away from the characteristics
of job holdersor seekers'.43
Formal and informallabour market institutions have been scrutinizedfor their
effect on black workers. A number of techniques and methods which are at the
centre of the British method of industrialrelations'regulationhave been criticized
as disproportionately,even if unintentionally,excluding black workers. There is
evidence that some work-group and trade union methods of controlling the
alternative workforce, such as age restrictions on entry into apprenticeshipsand
what Kahn-Freundhas called the 'custom of patrimony'44tend to disadvantage
39 See H. Phelps-Brown, The Inequality of Pay (OUP 1977) I48.
40 Smith, op cit 8.
4I Townsend, op cit 78.
42 N. Bosanquet, Race and Employmentin Britain (Runnymede Trust 1973) 7. For a discussion of
the dual labour market hypothesis and institutional discrimination in the context of the exclusion
of women from the labour market, see C. Hakim, Occupational Segregation Research Paper
No. 9 (DE, November 1979) 46-53.
43 Minority group experience of the transition from education to work, in DE, Entering the World
of Work:Some Sociological Perspectives(HMSO 1975) 75.
44 0. Kahn-Freund,Labour Relations (OUP 1977) 39.
CHRISTOPHER
McCRUDDEN
3I3
black workers proportionately more than white workers. Similar exclusionary
effects have also been found to be a potential side-effect of the use of aptitude
testing by managementfor hiring and promotion, and of reliance on seniority for
determiningredundancy,promotionand allocationof other benefits.
Apprenticeships
One importantmethod of restrictingthe flow of apprenticesis by requiringa long
period of training; another is by imposing maximum age limits. The
Commonwealth Immigrant's Advisory Council pointed as early as i964 to the
effect of the age requirementon admission of young black workers.'In some cases
the conditions of entry to apprenticeshipneed to be looked at again. Where age
limits are rigidly insisted upon this excludes not only immigrants but all those
whose education has not followed the normal pattern'.45In 1969 the Select
Committee on Race Relations stressed continuing difficulties of this type46and
hoped that more general adoption of trade tests and of policies to increase the
upward mobility of labourwould reduce the incidence of this problemfor coloured
school leavers.47Whether it has done so or not is unknown. What is clear,
however, is that the traditionalapproachto apprenticeshipis still widely accepted
and acted on.48 In 1981 the House of Commons Home Affairs Committee
stressed, yet again, its 'particularsignificanceto racialdisadvantage'.49Stipulation
of the age of entry to a job, though a particularproblem in apprenticeship,has
been found by Gaitskell disproportionately to exclude black workers more
generally as well. In her I969 study, one of the largest insurance companies in
Britain appeared to accept only seventeen to nineteen year olds, with such an
exclusionaryeffect.5?In 1976 the PEP study did not concludehow importantsuch
difficultieswere, but there was evidence that they were of some significance.51
There are a number of other similar 'institutional' factors which appear to be
effective in excluding young black people from apprenticeships.A recent survey in
Birminghampointed to a numberof practiceswhich have an exclusionaryeffect:
45 Commonwealth Immigrants Advisory Service, Third Report (HMSO I964) Cmnd 2458, para 16.
46 Select Committee on Race, The Problems of Coloured School Leavers, Report, supra n 36, paras
I I--I
2.
47 Ibid., para 245.
48 Cf Engineering Industry Training Board, Review of craft apprenticeship in engineering (IP 49
March 1978) 2-5, calling for greaterflexibility.
49 Para 2I3. Concerns over aspects of the apprenticeship system are not confined to its adverse
effects on minorities. More generally, the Government has expressed its concern 'at the rigidities
which surround apprenticeships, which of themselves make both predicting and meeting skill
needs very difficult' (Weekly Hansard, Issue No I216, 7 July, 1981, col 89 (written answer)).
Changes proposed by the Manpower Services Commission (A New Training Initiative, May
1981) have been endorsed by the Government (DE, A New Training Initiative: A Programmefor
Action (HMSO 198I) Cmnd 8455).
50 J. Gaitskell, Immigrants and Employment:two case studies in East London and Croydon (OUPIRR I969) 55-56.
51 D. J. Smith, Facts of Racial Disadvantage (PEP Broadsheet 60, vol XLII 1976) 68-69. See also
DE Evidence to the Select Committee on Race, The West Indian Community, para 4.
314
INSTITUTIONAL
DISCRIMINATION
the selectiveuse of 'catchmentareas'. . . concentrating
recruitmenton particular'good'
schools . . . the fact that young black applicants often lack the informal contacts which
alertwhiteyouthsto the possibilityof a job opening. . . wordof mouthrecruitment...
[reliance]on thefamilymembersof existingemployeesto fillposts.52
The customof nepotism
By this is meant the practice of preferring close relations for admission to
employment.It may be widened to include a similarpracticeof preferringfriends
and acquaintances over 'strangers'. These practices have the most effect, of
course, where control of entry is in the hands of, or is strongly influencedby, the
current workforce.53Its use in selecting apprenticeshas already been noted.54It
also appearsto be prevalentwhere a pre-entryclosed shop operates.
The pre-entry closed shop operates where an individualworker has to join the
union or be acceptedby it before he can be engagedby the employer.A post-entry
closed shop operates where the employer is free to engage a non-unionist so long
as he agrees to join the union immediately or shortly after engagement.
McCarthy's research in the early i96os disclosed examples where the method of
operation of the pre-entry closed shop was likely to exclude black workers.55
Among newsprint workers in London, where labour was engaged by the
unions-a labour supply shop-McCarthy described how '[i]n the case of several
of the largerbranches in the big towns there ... exists a list of would-be members
known colloquially as the "Sons and Brothers" List'.56 It will be obvious that
nepotism in an industry which is mainly white is likely to perpetuatethe exclusion
of black workers and the Royal Commission on the Press drew attention to this
racial (and indeed sexual) exclusiveness in the newspaper industry.57A similar
consequence for the composition of the workforceof the docks under the control
of the National Dock LabourBoard is likely.58
The importance of the exclusionary practices associated with the pre-entry
closed shop is lessened somewhat due to its relatively limited extent59and its
52 Commission for Racial Equality (CRE), EmploymentReport August I981, 6.
53 Cf Rubber and Plastics Processing Industrial Training Board, Managing in the Multi-Racial
Company (1979) drawing attention to the effects of a company relying on personal
recommendations from existing workers, and see House of Commons, Home Affairs Committee,
Racial Disadvantage, Session 198o-8I, Report HC 424 I (HMSO 1981) para 212.
54 W. McCarthy, The Closed Shop in Britain (Blackwells 1964).
55 The assumption has been made in this paragraphthat those selected are unlikely to be black, see
A. Ferriman, 'Traditions that deny jobs to blacks' The Times 12 December, 1979. Clearly this is
sometimes not the case, see C. Blackwood, 'Liverpool: Notes from Underground' New York
Review of Books 3 May, 1979, 36.
56 Op cit 39. For more recent information on the newspaper industry, see K. Sisson, Industrial
Relations in Fleet Street (Blackwells 1975) 66-71.
57 Royal Commission on the Press, Report para 2I.14.
58 S. Hill, The Dockers: class and tradition in London (HtEB 1976) 31-32. See also McCarthy, op
cit i8, 42-43.
59 Gennard, Dunn and Wright found that a minority of the closed shop population (837,000: i6 per
cent) are in pre-entry closed shops. The remaining 4.3 million are affected by post-entry
arrangements,see 88 EmploymentGazette 16, 19.
CHRISTOPHER
McCRUDDEN
315
apparentdecline,60in particularin those types of pre-entryshop which have been
identified as potentially most exclusionary of black workers. On the other hand,
some at least of the economic factors which tend to lessen the perceived need for
work-groupsto exclude competitors have again come to the fore since the early
I970s. Most importantlythe consequences of the decline in economic growth are
ominous. The protection given by the Welfare State has consequently been
reduced. These developments, coupled with ever rising unemployment, may
increasethe use of nepotism, even where a formalclosed shop is not in operation.
Aptitude Testing
In addition to requiring possession of particular educational and other
qualifications some British firms use aptitude tests for selecting, or more
particularlyfor allocating, employees within firms. Though apparentlynot very
much used,61a 1977 study found their use to be increasing. The effect of such
tests on the employment of racial minorities in Britain was found to have been
generally beneficial in studies in the late I96os. Gaitskell on the basis of her
researchesat this time, gave her qualifiedapprovalto such tests, the use of which
she thought, 'appears to help rather than hinder the opportunity for coloured or
immigrant applicants. Provided that an entrance test is related to the qualities
needed on the job it may be an advance towards fair selection'.62The Select
Committee on Race Relations also approved their development and use in 1969
though they pointed to some of the risks involved due to the difficultyof making
such assessments because of language difficulties and the culturebias inherent in
them. They observed, however, that some Youth EmploymentOfficershad 'used
aptitude tests with some success, using their discretion when applying them to
young immigrants but finding them a useful guide to compare with the
informationfrom the schools'.63
However, partly influencedby growing scepticism in America about the effect
of the use of tests on the blackpopulation,64from i969 there has developed a more
persistent questioning as to whether tests which have an exclusionary effect on
Britain's immigrant population should continue to be used. At first, evidence of
such exclusion was scattered and unsystematic. In 1969 Personnel Management
warned 'tests can discriminate',65and stressed the problemof culturalbias in the
60 Gennard et al, op cit I9, compared their findings with those of McCarthy, op cit: 'Those in
labour supply shops have dropped from 141,ooo to 74,ooo, in labour pool shops from 145,000 to
72,000 and in promotion veto shops from 193,000 to 127,000. In each case the explanationlies in
declining employment in the industries involved'.
61 Morely, Business April 1965, 90; Seyfarth, Shaw, Fairweather, Geraldson, Labour Relations and
the Law in Britain and the United States (Michigan International Labour Studies 1968) 502-3,
548-9.
62 Gaitskell, op cit 56.
63 Select Committee on Race, The Problemsof Coloured School Leavers, Report paras 223-4.
64 See B. Hepple, Race, Jobs and the Law in Britain 2nd ed (Penguin 1970) 296-7.
65 P. Pocock, i Personnel Management 5 (I969).
3I6
INSTITUTIONAL
DISCRIMINATION
applicationof tests to those from differentcountries. In 1970 the Confederationof
British Industry reportedthat one industry which employedan increasingnumber
of immigrant and coloured workers had pointed to the difficulties of using
traditional selection tests due to allowance having to be made for the likely
difficulties of young people whose backgrounddid not naturally fit them for the
normal British industrial environment. 'The importance of avoiding an
unintentionalethnic bias in drawing up selection tests is stressed. It is pointed out
that even second generation immigrants can still fare badly if tests are not
carefully prepared'.66In 1972 the Department of Employment in its survey of a
number of companies found evidence of the potentially exclusionary effect of
traditional testing.67Subsequent research into aptitude testing for skills training
on London Transport also showed that in their aptitude tests, colouredapplicants
achieved a significantlylower aptitude score than the averagefor the level of skill
which they could be trained to achieve.68Youth EmploymentOfficersalso became
increasingly doubtful of the utility of testing, with accusations of cultural bias
against some currentapprenticeshiptests.69More recently the Tavistock Institute
surveyed the effects of the use of various selection techniques in the Civil Service
and found considerable,and worrying, divergenciesbetween the pass rate of white
and non-white applicantson various tests.70
Seniority
The length of continuous service with the same employer(sometimes in the same
job, sometimes in the same plant, sometimes in the same company) is of
importance to many British workers in determining redundancy payments,
liability to redundancy,promotion and allocation of other benefits, as it is in the
United States. The effect of the use of seniority was found by early commentators
to have been favourable.The use of seniority to determine redundancynot only
tended to exclude the use of overt discrimination71it also, in the case of
promotion, tended to increase the acceptability of supervision of whites by nonwhites.72Indeed it was to prevent the use of favouritism and discriminationthat
the use of seniority was originallydeveloped.73
66 Confederationof British Industry (CBI), Summary of views of member employers' organisations
on the operation of the [Race Relations] Act, para Io.
67 DE, Take 7-Race Relations at Work 93.
68 Jupp, op cit 2. See also M. A. Pearn, Selecting and Training Coloured Workers (HMSO 1977)
6-7.
69 C. Jones, New Commonwealth Immigrants and the Statutory Social Services (SSRC Report,
unpublished) 54. I would like to thank the author for providing me with a copy of her report.
70 Application of Race Relations Policy in the Civil Service (CS Dept HMSO 1978). See also M. A.
Pearn, Monitoring equal opportunity in the Civil Service: A Review of a Report by the Tavistock
Institute (Runnymede Trust Briefing Paper No. 3 (1979)).
71 Evidence to Select Committee on Race, Problems of Coloured School Leavers, Q 2490.
72 D. Brooks, Race and Labour in London Transport (OUP-IRR 1975) 178-9, 181 on promotion of
immigrants to inspector grade in railways.
73 Seyfarth et al, op cit 265-6.
CtIRISTOPHER
McCRUDDEN
3I7
On the other hand the use of seniority, for example in selecting for redundancy,
argued Hepple as early as I967, 'puts coloured workers at a disadvantagein two
respects. First, as recent immigrantsthey may not be of as long standing in a firm
as local labour. Secondly, past discriminationagainst colouredworkers may have
deprived them of the opportunity of acquiring seniority'.74 Gaitskell also
concluded that the use of seniority for redundancyselection 'will necessarilywork
against immigrants who are in general much more mobile than the indigenous
worker and who in our experience tended to stay in jobs for shorter periods of
time.... Of the thirty firms we interviewed, sixteen said that they would sack the
newest recruits and of these, ten said that these would be immigrants'.75
In 1976 PEP found that Asians worked at their present organizations for a
substantially shorter time than either white men or West Indians. In the case of
East African Asians, the most recent migrants, only 19 per cent had been with
their present employer for five years or more comparedwith 56 per cent of white
men and 51 per cent of West Indians.76A Department of Employment study
found that employers also attributedthe under-representationof black workers at
supervisorylevel partly to lack of seniority among black employeescomparedwith
white employees. Particularreferencewas made by employersto the frequencyof
Asian workers' visits to their home countries and the resulting loss of seniority
even when they subsequentlyreturnedto the firm.77Particularlygiven the increase
in redundancies,the use of seniority as a criterion for retention would appear to
have become a considerableproblemfor black workers.78
DEVELOPING A NEW MEANING OF UNLAWFUL DISCRIMINATION
UNITED STATES
IN THE
The changingcivil rights movement
Having examinedthe problemI want to explore its translationfrom social concern
to legal problem, beginning with the United States. One of the most important
elements in this use of the law is the changes which have taken place as to what is
identified by the legal system as that which should be dealt with through its
processes, i.e. what should be considered unlawful discrimination. A major reassessment of the legal idea of discriminationcame after the passage of the Civil
Rights Act 1964, but not immediately. With the outlawing of discrimination by
the I964 Act (and the soon to be passed Civil Rights Acts of 1965 and 1968), the
civil rights movement turnedto attemptingto remedythe economic dimensions of
the problem and the law was assumed to be capable of playingonly a minorrole in
74 Hepple, op cit 130- 31.
75 Gaitskell, op cit 25. Jones, op cit 79, also reports that employment exchange managers found this
to be the case.
76 Smith, The Facts of Racial Disadvantage 91 and Table B 60.
77 DE, UMS, The Role of Immigrants in the Labour Market (DE 1977) 73.
78 L. Mackie, New Statesman 20 November, 198I, 4 quoting a black trade unionist.
3I8
INSTITUTIONAL
DISCRIMINATION
this. The changing aims of the civil rights movement in 1965 are reflected in an
observation by Bayard Rustin. The movement was, he wrote in 1965 'now
concerned not merely with removing the barriers to full opportunity but with
achieving the fact of equality'." Summing up the mood of the mid I96os, Brooks
observed that 'an understandable impatience became an angry insistence on
instant success not only in terms of acquiringthe goods of an affluentsociety but
also in becoming instant plumbers and instant physicians'.80A survey in Detroit
in 1964, for example, found that the chief concerns of younger blacks were with
'blackunity and "fair shares"'.81
The civil rights movement was changing in other ways in addition to the switch
from attempting to secure anti-discrimination legislation to that of achieving
economic equality, and in the parallelchange from concernwith voting to concern
with job opportunities. Geographically the centre of gravity of the civil rights
movement shifted from the South to the North. 'Direct action appeared in the
North in the form of school boycotts and demonstrationsagainst discrimination
by employers and the trade unions. Spontaneousrent strikesby tenementdwellers
coalesced into popularcommunity movements'.82This shift from South to North
also tended to focus attention on the less overt forms of exclusion, but the idea of
what was discrimination was still largely limited to prejudiced discrimination.
Inequalitywas a distinct concept.
Within the Federal Government, the changing aims, methods and perceptions
of the civil rights movement were reflected in the developments concerning the
appropriategovernmentalresponse to black and white poverty. Strong advocacy
developed from a number of sources for adoption of the principle of equality of
results to remedy the problem of black inequality, despite the consensus which
had earlier been built around equality of opportunity. 'Equality of opportunity'
wrote the President's councillor, Daniel Patrick Moynihan, in the now famous
Moynihan Report of 1965 '.. . has a different meaning for negroes than it has for
whites. It is not (or at least no longer) a demand for liberty alone, but also for
equality-in terms of group results'.83
In his Report, he arguedthat as the Governmentremovedbarriersto the liberty
of blacks through various types of anti-discrimination action, the problem of
equality would become dominant. Equality of results would not come about
simply from the lifting of legal barriersto full participation.The effect of the way
blacks had been treated by American society had been to create conditions in the
black community that made it all but impossiblefor the great majorityof blacks to
take advantageof the new opportunitiesthe laws provided.
79
80
81
82
83
B. Rustin, Strategiesfor Freedom(Columbia U Press 1976).
T. R. Brooks, Walls Come TumblingDown (Englewood Cliffs x974) 26.
Quoted in M. Banton, The Idea of Race (Tavistock 1977) I38.
F. F. Piven and R. A. Cloward,Poor People's Movements(Pantheon 1977) 265.
D. P. Moynihan, 'The Negro Family: The Case for National Action' in P. L. Rainwater and W.
L. Yancey, The Moynihan Report and the Politics of Controversy(Harvard U Press 1967) 3.
CIRISTOPHER
McCRUDDEN
319
By introducing the standard of equal group results in this way Moynihan
attempted to incorporate the perceived need for special treatment for black
Americans within the traditional rhetoric of American politics. The influence of
the Moynihan analysis is clear in President Johnson's Howard University speech
of June I965,84 in which two 'broad basic reasons' for the causes of black
inequality were posited. 'First, negroes are trapped-as many whites are
trapped-in inherited, gateless poverty. They lack training and skills. They are
shut in slums without decent medical care. Private and public poverty combine to
cripple their capacities'. This first cause, the President argued,was to be attacked
'through our poverty program, through our education program, through our
medical care and our other health programsand a dozen more of the Great Society
programsthat are aimed at the root causes of this poverty'.There was, however, a
second cause 'much more difficult to explain, more deeply grounded, more
desperate in its force. It is the devastating heritage of long years of slavery; and a
century of oppression, hatred and injustice'. Johnson went on to adopt explicitly
the Moynihan 'equal results' standardin addition to a purely 'equal opportunity'
approach:
You do not take a personwho, for years,has been hobbledby chainsand liberatehim,
bringhim up to the startingline of a raceandthen say, 'youarefreeto competewith all
the others',and still justly believethat you have been completelyfair. Thus it is not
Allourcitizensmusthavethe abilityto walk
enoughjust to openthe gatesof opportunity.
throughthosegates.This is the nextandmoreprofoundstageof thebattleforcivilrights.
We seeknot just freedombut opportunity-notjust legalequitybut humanability-not
just equalityas a rightandtheorybut equalityas a factanda result.Forthe taskis to give
20 millionNegroesthe samechanceas everyotherAmerican
to learnandgrow,to work
and share in society, to developtheir abilities--physical,mentaland spiritual,and to
pursuetheir individualhappiness.To this end equal opportunityis essentialbut not
enough.
Serious civil disturbances were spreadingthroughout the United States. From
1963 each long hot summer was expected to, and did produce destruction and
death. In I965, during rioting in the Los Angeles suburb of Watts, thirty-four
persons were killed. At the high point of later disturbances,during the summerof
1967, riots erupted in thirty-two cities and left one hundred people dead.85
Following these, President Johnson appointed a Presidential Commission (the
Kerner Commission) to look into the causes of the riots and make
recommendations.
The Kerner Commission concluded that, 'White racism is essentially
responsiblefor the explosive mixturewhich has accumulatedin our cities since the
end of World War II'.86It identified,in particular,'three of the most bitter fruits
84 L. Johnson, quoted in Rainwater and Yancey, op cit.
85 Kerner Report, op cit Chap i.
86 Ibid., 203.
320
INSTITUTIONAL
DISCRIMINATION
of white racial attitudes',87 as being, firstly the presence of '[p]ervasive
discrimination and segregation ...', [t]he corrosive and degrading effects' ol
which 'are the source of the deepest bitterness and at the centre of the problemol
racial disorder'.88Secondly, the Commission identified 'the massive and growing
concentration of impoverished negroes in our major cities resulting from negrc
migration from the rural south, rapid population growth and the continuing
movement of the white middle class to the suburbs'.89The consequence of this
was found by the Commission to have been a 'greatly increased burden on the
already depleted resources of cities creating a growing crisis of deteriorating
facilities and services and unmet human needs'.90The presence of 'the teeming
racial ghettos' in which 'segregation and poverty intersected to destroy
opportunity and hope and to enforce failure',91was the third factor. 'The nation',
the Commission warned, 'is rapidly moving towards two increasingly separate
Americas. Within two decades this division could be so deep that it would be
almost impossible to unite . . .92
The Moynihan, Johnson and Kerner remedies were largely posited on the basis
of increasedGovernmentexpenditure,basically a 'supply side' approach.Yet after
the riots, the starving and then the dismembermentof the Poverty Programme
took place. As had been the case between the Second World War and the passage
of the Civil Rights Act in I964, the Federalcourts stepped in. In particulara new
legal meaning of discriminationwas developed by the courts93to encompass not
only present prejudiced discrimination but also, in certain circumstances, the
present effects of past prejudiceddiscriminationand, later, actions which though
not intending to discriminate against racial minority groups, had the effect of
excluding them disproportionatelyin comparisonwith their effect on the majority
group.94It is this expanded definition of discrimination which, since 1976, has
been adopted in British race relationslaw.
The Federal courts, class actions and the meaningof unlawful discrimination
Social need had been established but that is hardly a safe predictor of the likely
reaction of courts to social problems. In the United States, however, there was the
fortunate coincidence that a number of other developments took place which
Ibid.
Ibid.
Ibid., 204.
Ibid.
Ibid.
Ibid.
The older meaning of discrimination, termed the disparate treatment theory, has continued to be
used in addition to the newer, disparate impact, theory. Both theories are now available to
litigants, Teamsters(IBT) v United States 431 US 324 (1977).
94 The meaning of unlawful discrimination has also been adapted so as not to disallow limited
voluntary preferential treatment of black workers by employers, adopted in order to break down
previous patterns of segregation and hierarchy. United Steelworkers of America v Weber443 US
I93 (i979)87
88
89
go
91
92
93
CHRISTOPHER
McCRUDDEN
321
encouraged the courts to react to the problem by developing new substantive
doctrine. Two of the most important of these (the development of the 'class
action' and the 'expert agency's' interpretations of the legislation) will be
discussed before moving on to consider the doctrinal developments which they
facilitated.
Traditional civil litigation is unsatisfactory in dealing with social problems of
such magnitude and complexity. This is in part because of the unwillingness of
any one person to take action to right a wrong affecting many individuals,and, in
part, because it tends to individualizethose areas of conflict when action happens
to be taken. One solution was attempted outside the litigation process. In the
I930s and 1940S,largely because of similar problems arising from the New Deal,
expert administrative agencies were established in considerable numbers to
overcome these limitations. I shall examine one important contribution of such
agencies below.95
At much the same time, the civil litigation process was itself being adapted, in
part because of a realization that administrative agencies were not the whole
answer. As two commentators observed at the time, 'private litigation must still
police large areas of modernlaw and provide the exclusive remedyfor many largescale group injuries'.96There were a number of proceduraldevelopments which
went some way towards modifying the process in order to accommodatethis role.
One difficulty was the unwillingness of the plaintiff to take action. A number of
techniques were developed to deal with this. One involved the multiplejoinder of
parties claiming to be aggrieved. Another was through expanding the concept of
'standing' in order to make it more likely that someonewould take a case. Neither
really solved the problem.97A third, and by far the most important,was by way of
the class action. This device
permit[s]any memberof the groupindividually,unchosenandunaskedand withoutany
organizationof the classor priorconsentfromothersto stepforwardandsue on behalfof
all, in the sense that if he is successfulall may participatein his result... . [I]nsteadof
mobilizingthe plaintiffspriorto trial,their participationin the case is deferreduntil a
decisionis reached.In lieu of any aggressivesolicitationof powersof attorneyfor trial,
thereis substituteda simplenoticeafterthe decisionthatreliefis available.98
The class action was used and continually developed by civil rights groups
litigating in Federal courts before the Second World War but, in particular,after
the success of Brown v Board of Education.99By 1963 Wright commented that
'cases challenging racial discrimination ... are the most common type of class
action in Federal court today'.'00From its coming into force, class action suits
95
96
97
98
99
lnfra 323.
Kalven and Rosenfield, 8 U Chicago L Rev 684, 687 (1941).
Ibid., 687-8.
Ibid., 691.
347 US 483 (I954). See also C. E. Vose, 319 Annals 20, 24 (1958) and R. B. Wilson, xvii Western
Political Q 64, 64-65 (I964).
Ioo C. A. Wright, Federal Courts (West I963) para 72.
322
INSTITUTIONAL
DISCRIMINATION
have figured prominentlyin the enforcement of Title VII of the Civil Rights Act
I964.
There are a numberof distinct advantagesin the use of the class action in antidiscrimination cases.'0l First, 'a favourable decree will in its terms apply to all
members ... a decree renderedin a class action will directlybenefit the group as a
unit'.'02 Second, 'any member of the plaintiff class may intervene and act as
representativeof the class in place of the original plaintiff. In this way it can be
made more difficult for the defendants to avoid a determinationof the substance
at issue'.'03 The possibility of intervention by another member of the class
prevents the defendant from side tracking the action into a determinationon the
basis of factors peculiar to the original plaintiff. Thirdly, protection is also given
to the interests of the class by the provisions giving the court discretion to require
that notice be given to members of the class before the action is dismissed or
compromised thus lessening the possibility of dismissal or compromise on terms
or for reasons detrimentalto the best interest of the class.'04Fourthly, and most
importantlyin the context of this discussion, it is advantageousfor the purposes
of fact-finding,proof and remedy. 'It aids the plaintiffs in showing the seriousness
of the discriminatory practice complained of.... [I]n a class suit evidence of
discrimination against any and all members of the class would be admissible
enabling the plaintiff to broadenthe natureof its proof and increasethe difficulties
of rebuttal'.105The justification for the class action from the point of view of the
public interest is well put by Chayes:
The classsuit is a reflectionof ourgrowingawarenessthata host of importantpublicand
private interactions-perhaps the most importantin defining the conditions and
basis
opportunitiesof life for most people-are conductedon a routineor bureaucratized
betweenprivateindividuals.From
andcanno longerbe visualizedas bilateraltransactions
of moreor less wellorganized
arlotherangle,the classactionrespondsto the proliferation
groupsin our societyandthe tendencyto perceiveinterestsas groupinterests,at least in
veryimportantaspects.106
Reflecting these social developments,however, requireda majorreappraisalof the
traditional idea of the purposes, potentialities and scope of anti-discrimination
law. With class actions the procedurecame to determinethe approachtaken and
the doctrine which was developed and in doing so it began to reduce the problem
of individualization.'07In particular, class action litigation under the Equal
iol See Note, 20 U Chicago L Rev 577 (1952-3).
o02 Ibid., 578.
103 Ibid., 580-1.
104 Ibid., 581.
105 Ibid., 581.
io6 A. Chayes, 89 Harv L Rev I28x, 1291 (1976).
107 Since 1966 the requirements for Federal class actions have been revised. Class actions in the
Federal courts are now governed by a revised Rule 23 of the Federal Rules of Civil Procedure,
25 USC App. A related development was the growth of public interest law groups specialising
in anti-discriminationlaw, see 0. Hansen, I981 LAG Bulletin 229-32.
CHRISTOPHER
McCRUDDEN
323
Protection Clause (and, later, under Federal legislation) in stressing organizational
barriersto black participationrequired a re-examinationof the problem of using
intent in such settings, for example, whose intent was to count as the intent of the
organization,and what, indeed, should intent mean in such a context.'08
The role of 'expert' agencies
Federal and State Governmentsin the United States have had a well established
penchantfor independentregulatoryagencies as the form of law enforcementbest
suited to offset the limitations of the civil legal process. Between the establishment
of the Interstate CommerceCommission (ICC) in 1887 and the beginning of the
Second World War, at least eight majoragencies of this type had been established.
Certain powers have been identifiedby Cushman as common to such agencies: a
quasi-judicial power, often in the form of a power to issue 'cease and desist'
orders; a quasi-legislative power to issue rules and regulations; a broad
administrative or managerial power to conduct or closely direct the conduct of
business operations; an enforcement power; and an investigative and planning
power, e.g. to researchproblemsand recommendnew legislation.'09
Landis distinguished between those administrative bodies whose essential
concern was the economic funtioning of a particularindustry, e.g. the ICC, and
those which had 'an extended police function of a particularnature', e.g. the
National Labor Relations Board."? Resort to the administrativeprocess for the
latter purpose, 'sprangfrom a distrust of the ability of the judicial process to make
the necessary adjustmentsin the developmentof both law and regulatorymethods
as they related to particularindustrial problems'.1" As originally conceived by
civil rights supporters,the Equal EmploymentOpportunityCommission (EEOC)
(established by the Civil Rights Act I964) was to have been of this type. So too
this type of agency provided the precedent for the British anti-discrimination
agencies (the Commission for Racial Equality (CRE) and the Equal Opportunities
Commission(EOC)).
In a number of respects the United Kingdom and the United States antidiscriminationagencies reflect their common roots. Each (apart from the EEOC)
has a 'quasi-judicial'power to order discrimination to cease; each has a quasilegislative power to issue rules, regulationsor guidelines; each has an enforcement
power to follow up findings of discrimination;each has a researchrole; and each
may recommend new legislation. In addition there is a common element not
identified by Cushman: their composition. In each, to a greater or lesser extent,
responsibility for control of the agency lies with members appointed by
Government, but chosen as 'representatives' of business, trade unions and
minority groups.
In tracing the development of the new legal idea of discrimination, it is the
Io8 See 0. Fiss, 93 Harv L Rev 1, 23 (1979).
109 R. E. Cushman, The IndependentRegulatory Commissions(OUP, New York 1941) 5-Io.
IIo J. M. Landis, The Administrative Process (Yale U Press 1936) 30.
ix I bid.
324
INSTITUTIONAL
DISCRIMINATION
'quasi-legislative'power of the EEOC on which I want to focus, and in particular
on its approachto the issue of 'testing'.
On the basis of a report to the EEOC by a panel of psychologists the
Commission issued Guidelines on Employment Testing Procedure in August
1966. They consisted of 'general standardson when and how to use employment
tests so that they did not work unfairly to the disadvantage of members of
minority groups'.'2 During the passage of Title VII an amendment had been
inserted by the Senate permitting employers to give and act upon the results of
any professionally developed ability test 'provided that such test, its
administrationor action upon the results is not designated, intended, or used to
discriminate because of race, color, religion, sex or national origin'."3 In its
guidelines the EEOC interpretedthe language of this amendmentto permit tests
'which fairly measured the knowledge or skills requiredby the particularjob or
class of jobs which the applicant seeks or which fairly affords the employer a
chance to measure the applicant's ability to perform a particularjob or class of
jobs'. 1'4
In July I970 the EEOC issued their 'guidelines on employee selection
procedures'supersedingand enlargingthe I966 guidelines."5The 1970 guidelines
were much more comprehensive,stringent and prescriptivein their requirements
for demonstrating that the tests were job related than the 1966 guidelines.
Discriminationwas redefined:
The use of any test which adverselyaffects hiring,promotion,transferor any other
employmentor membershipopportunityof classes protectedby Title VII constitutes
unless:
discrimination
(a) the test has beenvalidatedandevidencesa highdegreeof utility..., and
test candemonstrate
that
(b) the persongivingor actinguponthe resultsof the particular
alternativesuitablehiring,transfer,or promotionprocedures
areunavailable
forhis use.1"6
Like the development of the class action, this pronouncement of the 'expert'
agency had a profoundeffect on doctrinal developmentsin the Federal courts, to
which I now turn.'17
112 R. P. Nathan, Jobs and Civil Rights (Brookings Institution 1969) 31-2.
13 Section 703(h).
I 14 EEOC Guidelines on Employment Testing Procedures, August 1965. These were interpretedin
two decisions of the EEOC to support holdings that tests used by an employer discriminated
against blacks, even though this was not his intention. See CCH EPD para I7, 304.53 and CCH
EPD para 17, 304.55.
115 35 Fed Reg 12333.
II6 Para 1607.3.
117 The other vital role of agencies in this respect has been the jurisdiction to bring 'pattern and
practice' suits. Under 42 USC para 2000e-6(a) (1970), the Attorney-Generalwas authorised to
bring a civil action '[w]henever[he] has reasonablecause to believe that any person or group of
persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights
secured by [Title VII], and that the pattern or practice is of such a nature and is intended to
deny the full exercise of [those rights'.] The 1972 amendments to Title VII directed that this
function be transferred as of 24 March, 1972 to the EEOC, at least with respect to private
employers. Ibid., para 200oe-6(c) (Supp V).
CHRISTOPHER
McCRUDDEN
325
The developmentof the 'effectstest' in the Federal courts
The increasinglyegalitarianthrust of the demands made upon the courts and, in
the words of ProfessorPole, the obligation 'to examine constitutionalprinciplesin
the light of these measures . . . opened up hardly foreseen complexities that had
lain buried in the doctrine of equality'."8 One of the themes most noticeable in
the development of anti-discriminationdoctrine by the American courts is the
attempt to resolve the tension between the various demands of egalitarianismand
other values which make up an 'Americanideology'. ProfessorPole, for example,
notes how 'a genuinely egalitarian ideology would conflict with the American
system of incentives which were just as important to the public conscience and
probablymore popular'.119
The SupremeCourtas the authoritative
law hasreflectedthis
of constitutional
interpreter
tensionbecauseit is chargedwith the obligationof ensuringequaltreatmentbetween
economicand sociallyunequalpersonswhile being obligedto defer to many of the
conditionswhichhavemadepeopleunequal.'20
In few areas is this tension more clearly illustrated than in the way in which
the American courts addressed the question of institutional discrimination
in employment. Title VII, the employment discrimination sections of the Civil
Rights Act I964, could be interpretedmore liberallyor less liberallyin a numberof
respects. To what extent did the requirementfor 'intention' in Title VII serve to
restrict its coverage? Did the exception in the statute for 'bona fide' seniority
systems exempt such systems from scrutiny even where they perpetuated the
effects of the past discrimination?A number of early Title VII cases considered
these problems.
In retrospect there is a tendency to distinguish between those employment
cases based on a 'presenteffects of past discrimination'rationaleand those which
went further. Historically, however, the developmentof the two types of cases in
employment went hand in hand. In July 1968, for example, the National
Association for the Advancementof ColoredPeople (NAACP), Legal Defense and
Education Fund held a conference to develop legal tactics to counter abuses of
seniority and job testing which were deemed the 'most frequently used means of
discriminatingagainst minorities'.121
The issue of the present effects of past discrimination was dealt with very
hesitantly prior to the 1964 Act. In Whitfield'22the Fifth CircuitCourt of Appeals
had refused to accept the argumentthat the present effects of past discrimination
were covered by a prohibitionof discrimination.In Quarles v Phillip Morris'23a
118 J. R. Pole, The Pursuit of Equality in American History (U CaliforniaPress I978) 326.
119 Ibid., 351.
120 Ibid. Compare the discussion in J. Rawls, A Theory of Justice (OUP 1972) 65-108 and his
adoption of the 'difference principle' as an attempt to reach a compromise between incentives
and equality, ibid. 83.
12I New York Times 20 July, 1968.
122 Whitfield v United Steelworkers of America, Local 2708
123
279
F Supp 505 (DC Va 1968).
263 F 2d 546 (CA-5 I959).
326
INSTITUTIONAL
DISCRIMINATION
Federal district court addressed the issue for the first time under Title VII and
also for the first time gave a legal remedy for a major aspect of institutional
discrimination. The company's cigarette and tobacco manufacturing facilities
were divided into four departments.Until I955, only blacks worked in two of the
departments(stemmery and prefabrication),only whites in the third department
and a few blacks worked in the fourth predominantlywhite department. The
number of blacks in supervisorypositions was always very small. Between I955
and 1964 token hiring of blacks took place in the previously all-white department.
After 1965 the proportionof black workers taken on increased considerably.For
many years, however, inter-departmentaltransfers had been prohibited. Black
workers hired into the lower paid, lower status departmentsprior to 1965 could
not be promoted to better-payingjobs and thus could not accumulateseniority in
the previouslyall-white and predominantlywhite departments.
The District Court in Quarles recognized, as had the court in Whitfield,that it
was dealing with a departmental structure with 'many legitimate management
functions'.124It promotedefficiency, encouragedjunior employees to remain with
the company because of the prospect of advancementand limited the amount of
retraining that would have been necessary without departmental organization.
Unlike Whitfield however, Quarles held that the present consequences of past
discrimination-lack of accumulated seniority credits in the white fabrication
departmentfor blacks who transferredand who would have advancedat an earlier
date but for the discriminatorypolicy-was 'discrimination'within the meaning
of Title VII.
The proviso to section 703(h) protecting 'bona fide' seniority systems did not
protect the system:
Obviously one characteristicof a bona fide seniority system must be lack of
discrimination.
Nothingin section703(h)or its legislativehistorysuggeststhat a racially
discriminatory
senioritysystemestablishedbeforethe Act is a bonafidesystemunderthe
Act.... The courtholds a departmentalsenioritysystemthat has its genesisin racial
is not a bonafidesenioritysystem.'25
discrimination
Whitfield was 'not controlling'.'26'Congress did not intend to freeze an entire
generationof negro employees into discriminatorypatterns that existed before the
Act'. 127
In a subsequent case, Local 53, International Association of Heat and Frost
Insulators and Asbestos Workersv Vogler,'28the Fifth Circuit Court of Appeals
reviewed the issuance of an injunction,based on the Quarles theory, to eradicate
the use of nepotism. The injunctionincludeda prohibitionon the 'use of members'
124 Ibid., 513.
Ibid., 5I7.
126 Ibid., 518.
127 Ibid., 516.
128 407 F 2d 1047 (CA-5 1969).
125
CHRISTOPHER
McCRUDDEN
327
endorsements,family relationship,or elections as criteriafor membership'.'29The
union argued that the District Court had been wrong to prohibit its policy of
excluding persons not related to present members by blood or marriagebecause it
was a 'penalty' for pre-Act discrimination and because it established a quota
system to correct racial imbalancein violation of section 703(') of the Civil Rights
Act.'30The Court of Appealsdisagreed:
when it prohibiteda
The districtcourtdid no morethanpreventfuture discrimination
continuingexclusion of negroes through the applicationof an apparentlyneutral
membership provision which was originally instituted at least in part because of racial
discrimination
andwhichservedno significanttrade-related
purpose.Whilethe nepotism
in a
is applicableto blackandwhitealikeandis not on its facediscriminatory,
requirement
is
to
forever
its
continued
union
of
white
the
effect
denyto
application
completely
present
for
and
real
Mexican-Americans
membership.'3
opportunity
Negroes
any
After citing Quarles with approvalthe Court continued:
In view of the generalpolicy of racialdiscriminationin Louisiana. . and Local 53's
admittedpolicyof racialdiscrimination
both priorto and followingthe effectivedate of
the Act the unioncannotsalvagethe invalidityof this requirement
by convincingus thatit
didnot ariseat leastin partfromracialbiases.'32
In Local I89, Papermakersv the United States'33 the Fifth Circuit Court of
Appeals considered a Southern papermillwhich had been segregatedon the basis
of race until 1964 primarilythrough the use of segregatedprogressionlines within
each department. In 1966 the black and white progression lines within single
departments were merged on the basis of pay. With one minor exception this
placed all the blackjobs in each departmentbeneath all the white jobs in the same
department.Racial restrictionsin all departmentswere then abandonedand white
employees were permitted to transfer to the entry position in the progression
ladder of any department. As a result of these changes some progression lines
became racially integrated. Since, however, black progressionlines were merged
beneath related white progression lines and since upon transferringinto a new
departmentblack employees went to the bottom of the progressionladder, black
employees were lower on the integratedprogressionladdersthan white employees
often many years their junior in terms of total length of service with the company
(plant seniority). Promotions within a progressionline were made step by step on
the basis of seniority in the job classification. Senior black employees were thus
permanently wedged beneath junior white employees for the purposes of
promotion and transfer. The court held unanimously that these seniority and
transfer provisions violated the Act in that they perpetuated pre-Act
discrimination.
129 Ibid., I051.
130 Ibid.
131 Ibid., 1054.
132 Ibid., 1054.
133 46 F 2d 980 (CA-5 I969).
328
INSTITUTIONAL
DISCRIMINATION
The Court considered the circumstances in which an employer had a duty to
remove the present effects of past discrimination.Buildingon the Voglercase, the
Court devised a test to distinguish circumstanceswhere a duty arose and where it
did not, and where, therefore the legal system would be used to eradicate that
exampleof institutionaldiscrimination.
Not all 'but for' consequencesof pre-ActracialclassificationwarrantreliefunderTitle
VII. For example,unquestionably,
negroesas a class educatedat all negro schoolsin
certaincommunitieshavebeendeniedskillsavailableto theirwhitecontemporaries.
That
fact wouldnot howeverpreventemployersfromrequiringthat applicantsfor secretarial
positionsknow how to type even thoughthis requirementmight preventnegroesfrom
becoming secretaries.134
On the other hand 'relianceon a standard neutral on its face is no defense under
the Act when the effect of the standardis to lock the victims of racial prejudicein
an inferiorposition'.'35The 'controllingdifference',held the Court, was 'business
necessity'.
Whenan employeror unionhas discriminatedin the past and when its presentpolicies
renewor exaggeratediscriminatory
effects,those policiesmust yield, unlessthereis an
businesspurpose.Secretariesmustbe ableto type.There
overriding,
legitimate,non-racial
is no way roundthatnecessity.A nepotismruleon the otherhandwhilenot unrelatedto
the trainingof craftsmenis not essentialto that end.To be sureskilledworkersmaygain
substantialbenefitsfromhavinggrownup in the homeof the memberof the trade.It is
clear nonethelessthat the benefitssecuredby nepotismmust give way becauseof its
effectivecontinuationandrenewalof racialexclusion.'36
In the instant case the Court applied this business necessity defence asking
whether the job seniority standard was so necessary to Crown Zellerbach's
operations 'as to justify locking negroes hired before 1966 into a permanent
The Court held that it
inferiorityin their terms and conditions of employment'.137
was not 'essential to the safe and efficient operation of Crown's mill'.138In
particularthere were satisfactoryalternativesto job seniority.
The Court then turned to assess three arguments against holding that the
seniority system at the plant was discriminatory.First, the Court accepted the
characterization of the Whitfield case in Quarles as one where 'present
discrimination was allowed only because it was rooted in the negro employee's
lack of ability and training to take skilled jobs on the same basis as white
employees.... Business necessity, not racial discriminationdictated the limited
transferprivilegesunder the contract'.139Second, the statutoryprotectionof 'bona
134 Ibid., 988.
I35 Ibid., 989.
I36
137
138
139
Ibid., 989.
Ibid., 989.
Ibid., 980.
Ibid., 993.
CHRISTOPHER
McCRUDDEN
329
fide' seniority systems in section 703(h) was considered. The Court distinguished
between requiring the creation of fictional seniority for newly hired negroes and
requiringthat time actuallyworked in negrojobs at the plant be given equal status
as time worked in white jobs.
To begin with, requiringemployersto correcttheir pre-Actdiscrimination
by creating
fictionalseniorityfor new negroemployeeswouldnot necessarilyaid the actualvictimsof
the previousdiscrimination.There would be no guaranteethat new employeeshad
actuallysufferedexclusionat the handsof the employerin the past or if they had there
wouldbe no way of knowingwhetherafterbeinghiredtheywouldhavecontinuedto work
timefornewlyhired
for the sameemployer.In otherwordscreatingfictionalemployment
remedial
treatment....
would
rather
than
Congress
negroes
comprise preferential
exemptedfrom anti-discrimination
requirementsonly those seniorityrights that gave
whiteworkerspreference
overjuniornegroes.'40
the
Thirdly,
requirementof 'intention'was consideredbut, held the Court,
the conductengagedin had raciallydeterminedeffects. The requisiteintent may be
inferredfrom the fact that the defendantspersistedin the conduct after its racial
intentionshadbeenknownto them.[TheAct]demandsno more.'4'
In these cases the courts had opted in favour of a concept of discrimination
which recognized the problem of institutional exclusion and went beyond the
limited idea of prejudiceddiscrimination.
Seniority, as we have seen was, however, only one aspect of institutional
discrimination.The use of exclusionarytests was a second major area. Against a
background of developing awareness of 'institutional discrimination'"42and
agency stringency, a number of cases involving testing issues were also finding
their way into the Federal courts. In this situation too the courts eventually
expanded the idea of discrimination to call their use into question. The most
importantof these cases, Griggsv Duke Power Company,concerneda corporation
engaged in the generation, transmission and distribution of electric power in
North and South Carolina. At the time the action was instituted, Duke Power
Company had ninety-five employees at its Dan River Station, fourteen of whom
were negroes. The workforce at Dan River was divided for operationalpurposes
into five main departments: (i) operations; (2) maintenance; (3) laboratory and
test; (4) coal handling; and (5) labour. The positions of watchman, clerk and
storekeeper were in a miscellaneous category. The labour department was the
lowest paid. Within each department specializedjob classificationsconstituted a
line of progression for purposes of promotion. In transferring from one
departmentto another an employee usuallyjoined at the entry level; however, an
employee was potentially able to move into another departmentabove the entry
level dependingon his qualifications.
I40 Ibid., 995.
141 Ibid., 997.
See, e.g. statement of the Chairman of EEOC in 1967, quoted in EEOC, The First Decade
(EEOC 1974) i8.
142
330
INSTITUTIONAL
DISCRIMINATION
In 1955 Duke Power had initiated a new policy as to hiring and promotion. A
high school education or its equivalent was henceforth required for all new
employees except for those in the labour department.Incumbentemployees were
also requiredto have a high school education or its equivalentbefore they could be
considered for advancement from the labour department or the position of
watchman into coal handling,operations or maintenanceor for advancementfrom
coal handling into operations or maintenance. Subsequently it was decided that
an incumbentemployee who did not have a high school educationor its equivalent
could become eligible for transferor promotion from coal handling, watchman or
labour into operating, maintenance or other higher classifiedjobs by taking and
passing two tests (the Wonderlic General Intelligence Test and the Bennett
MechanicalAptitude Test) with scores equivalentto those achieved by an average
high school graduate.
Until I966 no black worker had ever held a position at Dan River in any
departmentother than the labour department.The plaintiffs admitted that at the
time of the action Duke had apparentlyabandonedits policy of restrictingnegroes
to the labour department.The plaintiffs contended however that both the high
school and the intelligence test requirements were discriminatory.The District
Court found no unlawful discrimination.'43 The Fourth Circuit Court of
Appeals'44disagreedwith the District Court insofar as it had held that the Act did
not encompass the present and continuing effects of past discrimination. 'This
holding' said the Court citing Quarles, Voglerand Papermakers'is in conflict with
other persuasive authority and is disapproved. While it is true that the Act was
intended to have prospective application only, relief may be granted to remedy
present and continuingeffects of past discrimination'.'45
In applying this interpretation of Title VII the Fourth Circuit divided the
plaintiffs into two groups. For those without a high school education or its
equivalent who were discriminatorilyhired only into the labour departmentprior
to the company's institution of the education requirement in 1955, both the
educational and testing requirements must be waived. The Court held however
that the rights of the second group of plaintiffs (those four negro employees
without high school education or its equivalent who were hired into the labour
department after the institution of the educational requirement) had not been
breached. The opinion rejecting the appeal of this second group of black workers
hired after I955 was handed down over the vigorous dissent of Sobelof CJ who
arguedthat the educationrequirementsand the tests were discriminatory.
The judgment of the Fourth Circuit Court of Appeals was entered on 9 January
1970. The plaintiffs filed a writ for certiorari tu che Supreme Court on 9 April
1970 and this was granted on 29 June i970.146 Between December 1969 and
143 292 F Supp 243 (DC NC 1968).
144 420 F 2d 1225 (CA-4 1970).
I45
Ibid., 1230.
146 Cert granted, 399 US 926 (1970).
CHRISTOPHER
McCRUDDEN
331
November 1970 three subsequent district courts handed down decisions which
were inconsistent with the majority holding in Griggs.147The arguments
presented to the Supreme Court illustrate the variety of approachesopen to the
Court.
The brief to the Supreme Court for the petitioners in Griggs argued that the
decisions of the District Court and the Fourth Circuit Court of Appeals denying
relief to those black workers hired after I955 should be overturned. (More
generally,it was clear that the petitioners regardedthe case as importantin giving
lower courts guidance as to how to approach the statute since it was the first
Title VII case to reach the SupremeCourt.) The basis of their argumentwas that
where the use of a high school diploma or test requirementas a prerequisitefor
jobs disproportionatelyexcludedemploymentopportunitiesfor blacks and was not
related to job performance,then its use was contraryto Title VII, given that the
gross differencesbetween test scores achievedby blacks and whites were 'directly
attributable' to race because of the differences in education due to segregated
schools and differences in culturalenvironments.'48Unless such selection devices
as intelligencetests and high school diplomarequirementswere requiredto be 'job
related' if they disproportionatelyexcluded blacks, 'almost every employer in the
South could create a substantial and unjustifiablejob preference in favour of
whites'.149
It is an unfortunate fact of life in America that a heritage of discriminationhas left many
blacks with insufficient skills for many of the better jobs in the economy. The disparity in
black-white test scores and education is to some extent a reflectionof the same deprivation
as this lack of skills.'50
The dilemma between safeguarding the legimate requirementsof the employer
and preventing black workers from being excluded by tests or requirements
designed to exclude blacks was solved if 'job relatedness' was taken as 'the
touchstone'.
51
The guidelines of the EEOC and the OFCC152as well as lower Federal court
decisions were offered in support. So too were the cases adopting the 'present
effects of past discrimination'test. The use of tests and educationalrequirements
was similar to the use of seniority and nepotistic selection, it was argued.Each is
147 Arrington v Mass Bay Transportation 306 F Supp 1355 (DC Ma 1969); Gregory v Litton
Systems Inc 3i6 F Supp 401 (DC Ca I970); Hicks v Crown Zellerbach Corp 319 F Supp 536
(DC La 1970).
148 Brief for the Petitioners, io.
149 Ibid., Io.
150 Ibid., 22.
I51 Ibid., I I.
152 Order by W. Willard Wirtz, Validation of Employment Tests by Contractors and
Subcontractors Subject to the Provisions of Executive Order 11246, 33 Fed Reg 14392. The
Office of Federal Contract Compliance was established within the Department of Labor to
supervise the enforcement of Executive Order II, 246. In 1978 it was renamed the Office of
Federal Contract Compliance Programs(OFCCP).
332
INSTITUTIONAL
DISCRIMINATION
'but one example of a new breed of racial discrimination.While outright and open
exclusion of negroes is passe the use of various forms of neutral,objective criteria
which systematicallyreduce Negro job opportunity are producingmuch the same
result'.'53 Whether in a particular case the adoption of the exclusionary
requirement was 'a product of naked racism' or 'simply . . . motivated by a
commitment to what some may perceive as middle class values and certain
personal lifestyles' was irrelevant since the result in both cases was the same:
'seriously reduced black job opportunity and gross employment preference for
whites over blacks-and it is this discriminatoryresult which Title VII declares
unlawful'.154
The petitioners arguedthat it was clear in Griggs that the high school diploma
and intelligence tests used by Duke had an exclusionaryeffect on the four black
workers. No evidence had been presented, no study or analysis had been carried
out which would demonstrate that the continued use of these requirementswas
related to the company'sjob performanceneeds. Ipso facto, the intelligencetests
were not 'professionallydeveloped'.
There was an alternative argument set forth in the brief though it was not
expressed as such. The preferencewas obviously in favour of a wide holding that
an exclusionaryresult unjustifiedby job relatednesswas in violation of Title VII,
whether intended to discriminate or not. Alternatively,however, it was argued
that the facts in this case pointed to a prejudicedintent to discriminate.An 'intent
to discriminateagainst blacks'could 'be inferredfrom the timing of the decision to
install tests, the lack of study that went into it, and Duke's persistence in
maintainingthe tests .... The only thing that Duke could have known for certain
about its tests was that they had a highly adverse impact on black workers.
Taking account of Duke's long history of segregation and discrimination the
conclusion is inescapable that the discriminatoryimpact of the tests was in the
minds of Duke's managersand formed at least part of Duke's intent in I965'.155
The Justice Department and the EEOC filed a joint amicus curiae brief on
behalf of the United Stated Federal Government.It urged the Court to reversethe
Court of Appeals and agreedwith what it termed the petitioners 'basic contention
...that the rights created by Congress when it enacted Title VII of the Civil
Rights Act 1964 may no more be frustrated by apparentlyneutral employment
practices, not justified by business necessity, which have racially exclusionary
effects than by overtly discriminatorypractices'.'56The Government'sbrief was
forthright also in arguing against the subjective approachof the Fourth Circuit.
'This focus on the employer's motive rather than his need, is, we submit, what
apparentlymisled the court. For the congressionalpurpose in enacting Title VII
153
Op cit 25.
154 Ibid., 27-28.
155 Ibid., 47-48.
156 Brief on behalf of the United States, 12.
CHRISTOPHER
McCRUDDEN
333
was ... to accomplish economic results not merely to influence motive or
feelings'.'57
If there was a difference between the briefs of the Government and the
petitioners it was one of emphasis. The Government tended to stress the past
discriminationby the company as a basis upon which to build an argumentthat
the present effects of past discrimination cases were analogous. This 'past
discrimination'rationale for striking down the requirementsis seeded throughout
the argument. The question was presented as 'whether it was unlawful under
Title VII ... for an employer to require completion of high school or passage of
certain general intelligence tests as a condition of eligibility in, or transferto, jobs
formerly reserved only for white employees ...'.158 The United States had a
legitimate interest in the case because it was 'engaged in comprehensiveefforts to
eliminate raciallydiscriminatorypractices and to remedy the continuing effects of
past discrimination'.'59The seniority systems and the union membershipandjob
referralrestrictions which had been held illegal by Federal courts, like the high
school completion and test requirements at issue in Griggs, '. . . retarded
advancementof blacks into jobsfrom which theyformerly were excludedand were
not requiredfor business necessity'.l60
On the other side, the Duke Power Company argued in its brief that it was
justified in deciding 'that it would upgrade the quality of the workforce by
adopting a policy that all those employedin the higher skilledclassificationswould
thereafterbe required to have a high school education'.'6'The 'present effects of
past discrimination'cases and other cases such as Gaston County,'62relied on by
the petitioners to support their argument,were inapplicablein the context of this
case. In the latter 'this court ... determinedthat it could be presumedor assumed
that a significantnumberof the group involved had the necessaryqualifications.It
cannot be assumed without evidence that a significant number of negroes in the
group involved at Dan River had the qualificationsto performjobs in the higher
I57
158
159
I60
I6I
I62
Ibid., I5-I6.
Ibid., 2 (emphasis added).
Ibid., 3 (emphasis added).
Ibid., I (emphasis added).
Brief for Duke Power Co, 7.
In Gaston Co v United States 395 US 285 (1969) the Supreme Court affirmed a trial court's
refusal to permit a county to reinstate a literacy test for voter registration which had earlier
been suspended as required by the Voting Rights Act 1965. Harlan J speaking for the Court
concluded from a study of its legislative history that one of the principal reasons for the
adoption of the test suspension provisions in the 1965 Act was 'the potential effect of unequal
education opportunities upon the exercise of the franchise' (p 289). In this case the Court found
that a segregated, dual school system had been maintained and that substantial evidence had
been introduced showing that the county had 'deprived its black residents of equal educational
opportunities which in turn deprived them of an equal chance to pass the literacy test' (p 397).
Evidence of progress in school de-segregation and the removal of inequalities could not remove
the educational disadvantages of the adult negro population. Even impartial administration of
the literacy tests would serve only to perpetuate inequalities.
334
INSTITUTIONAL
DISCRIMINATION
skilled classifications'.163Title VII, in short, was not violated unless the
requirementswere adopted without a legitimate business purpose as decided by
the employer.
The amicus curiae brief on behalf of the United States Chamberof Commerce
adopted a similar approach: it was necessary for the petitioners to show a
discriminatory motive. The brief did go some way however to try to meet the
petitioners' fear that such an approach would make proof almost impossible.
Where it was alleged that adoption of a test was a mere pretext for discriminating,
this might be shown by providing evidence as to, for example, 'the menial nature
of the jobs for which the test requirement is imposed, to the timing of the
company's adoption of the test requirement or to the employer's general
performancein the area of race relations. [Proof] might also consist of utilizing a
test which has not been developedby trainedpsychologistsor which in the view of
qualified experts would not reasonably suffice for purposes intended. Even the
failure to undertakea comparisonof the results of such tests with actual employee
performancemight be such as to infer a discriminatoryintent'.'64What had to be
proved at the end of the day, however, was a discriminatorymotive and if that
was not done then there was no violation of Title VII.
This brief also made an uncompromising attack on the EEOC guidelines and
strongly urged that they be given 'little deference'.165'It should be recognized',
explained the brief (quoting a former EEOC consultant), 'that the EEOC has
consciously sought to construe Title VII "as broadly as possible in order to
maximize the effect of the statute on employment discrimination without going
back to Congress for more substantive legislation"'. 'In doing so', the brief
continued (quoting the former deputy counsel of the EEOC), 'the Commission
"departed from previous notions of what discrimination is" '. The EEOC
guidelines were thus 'tantamountto an assumptionof the substantiverule making
power which Congress specificallydenied to the EEOC' and were not 'an objective
interpretationof Title VII'.166
In a unanimous judgment167the Supreme Court, with Chief Justice Burger
speakingfor the Court, upheldthe plaintiffs'claim of unlawfuldiscrimination.
Becausethey areNegroes,petitionershavelongreceivedinferioreducationin segregated
schoolsand this Courtexpresslyrecognizesthese differencesin GastonCountyv United
States .... There, becauseof the inferioreducationreceivedby Negroes in North
Carolina,this Courtbarredthe institutionof a literacytest for voterregistrationon the
groundthatthe test wouldabridgethe rightto vote indirectlyon accountof race.Congress
did not intendby Title VII, however,to guaranteea job to every personregardlessof
qualifications.In short, the Act does not commandthat any personbe hired simply
163 Op cit 12.
I64 Brief on behalf of the United States Chamberof Commerce, I9.
I65 Ibid., 6.
i66 Ibid., 8-9.
167 Griggs v Duke Power Co 40o US 424 (197I).
CHRISTOPHIER McCRUDDEN
335
becausehe was formerlythe subjectof discrimination,or becausehe is a memberof a
foranygroup,minorityor majority,is precisely
minoritygroup.Discriminatory
preference
and only what Congresshas proscribed.Whatis requiredby Congressis the removalof
artificial,arbitrary,unnecessarybarriersto employmentwhen the barriersoperate
on the basisof racialor otherimpermissible
classification.'68
invidiouslyto discriminate
In arriving at a test for what type of criteria was unlawful, the Court adopted
the 'business necessity' test of Papermakers: 'The touchstone is business
necessity. If an employmentpracticewhich operates to exclude Negroes cannot be
shown to be relatedto job performancethe practiceis prohibited'.'69Applyingthis
to the Duke Power Companypractices the Court held that neither the high school
completion requirement nor the general intelligence test was shown to bear 'a
demonstrablerelationshipto successful performanceof the jobs for which it was
used'.'70Both were adopted'without meaningfulstudy of their relationshipto jobperformanceability'.17' Good intent or absence of discriminatoryintent did not
'redeem employment proceduresor testing mechanisms that operate as "built-in
head-winds"for minoritygroups and are unrelatedto measuringjob capability'.'72
In rejecting the Company's argument that its general intelligence test was
specifically permitted by section 703(h) the Court relied on the expertise of the
EEOC and its guidelines interpretingsection 703(h) to permit only the use of jobrelated tests. 'Since the Act and its legislative history support the Commission's
construction,this affordsgood reason to treat the guidelines as expressingthe will
of Congress'.173
Griggs was the precedent which Britain drew on for its new legal meaning of
discrimination, though widely differing interpretationsof the case were possible.
Various aspects of Griggs could be construed narrowly or broadly, given that so
many issues were left open by the SupremeCourt.
The implications of the Griggs case were the subject of debate and dispute in
both the Federal courts, and in the administrative agencies and Government
departments which had civil rights obligations.'74What relevance, for example,
should be given to that aspect of the Griggs decision which appearedto give extra
weight to the fact that 'the jobs in question formerlyhad been filled only by white
employees as part of a longstanding practice of giving preferenceto whites'?"75
i68
I69
170
171
172
173
174
175
Ibid., 430-1.
Ibid., 43I.
Ibid.
Ibid.
Ibid., 432.
Ibid., 434.
Widely differing interpretations of the case were possible. Ivan Illich, for example, saw in
Griggs, 'and in the reasoning on which it is based, implications far wider than the Court had
any occasion, in this context, to consider. The decision represents an exemplary breakthrough
in the present world-wide crisis of schools. It is the first juristic step towards the
disestablishment of the school.. .'. New York Times 3 May, 1971.
40 US 424, 426.
336
INSTITUTIONAL
DISCRIMINATION
Would the 'effects' test apply to cases arising underthe FourteenthAmendment'76
or the Civil Rights statutes of the nineteenth century?What was the meaning of
'business necessity' and 'job relatedness'? To what extent did the Griggs case
apply to requirementsother than intelligencetests and educationrequirements?
DEVELOPING A NEW MEANING OF UNLAWFUL DISCRIMINATION
IN BRITAIN
Indirect discriminationand British race relationspolicy
How has Britain approachedthe problemof discrimination? Initially the 1965 and
1968 Race Relations Acts concentratedon a notion of 'direct discrimination'as it
later came to be called, i.e. race was made irrelevantfor the distributionof certain
resources. The I968 Act provided in section I(I) that 'a person discriminates
against another ... if on the grounds of colour, race or ethnic or national origins
he treats that other ... less favourably than he treats or would treat other
persons'.
There was a growing awareness of the limited coverage of this definition of
discrimination coinciding with an increased awareness of the problems of
immigrant disadvantage, urban deprivation, and in particular with the
development in Britain of the idea of institutional discrimination.This definition
was regardedas limited for several reasons similarto those which encouragedthe
'effects test' in the United States. Firstly, it was difficult to establish that it had
been breached because it required proving that a person had a discriminatory
intention.177 Secondly, this concept of discriminationhad little effect on the use of
criteria which had the effect of excluding disproportionatenumbers of minority
groups irrespective of intention. It was limited, for example, in looking at what
happened after a black workercame to a factory looking for a job, but ignoringthe
fact that even if his racial origin was not directly taken into account at the time he
applied there was a greaterchance that he would lack those attributeswhich went
to make a successful applicant.
Criticisms of this type led to calls for the replacementof the 1968 Act's non176 In Washington v Davis 426 US 229 (I976) the Supreme Court decided that it did not apply. See
further Castanada v Partida 97 S Ct 1272 (1977), Village of Arlington Heights v Metropolitan
Housing Development Corp 429 IJS 252 (1977), Personnel Administrator v Feeney 442 US 256
(1979), City of Mobile v Bolden Ioo S Ct I490 (I980).
177 The difficulty of proving a discriminatory intent has been commented on in a number of cases,
both at common law, see Short v Poole Corp [1926] Ch 65, 96 and Weinbergerv Inglis [1919]
AC 606, 617, and with regard to a number of statutes, see Oxford v Department of Health and
Social Services [1977] IRLR 225 (EAT), Wallace v South East Education and Library Board
[1980] IRLR 193 (NICA), Fair Employment Agency v Craigavon Borough Council [1980]
IRLR 316 (NICA), and Khanna v Ministry of Defence [I981] ICR 653 (EAT). Various methods
have been developed to ease the burden, see Wallace (supra) and Khanna (supra). In the United
States too, proof of 'disparate treatment' has occasioned much litigation. For attempts to ease
the burden, see McDonnell Douglas Corp v Green 411 US 792 (1973), Furnco ConstructionCo
v Waters 438 US 567 (1978), Board of Trustees of Keene State College v Sweeney 439 US 24
(I978), Texas Department of CommunityAffairs v Burdine I0o S Ct 264 (1981).
CHRISTOPIIER
McCRUDDEN
337
discrimination principle by what may be called the principle of 'fair equality of
opportunity'.Translated into legislation in this area, the principletakes the form
of the prohibition of 'indirect discrimination', which makes unlawful those
conditions or requirementswhich have the effect of excluding more blacks than
whites and which cannot be justified.'78
The factors contributing to this new legislative approachare worth examining
because they highlight the differentways in which legislation might have tackled
the problemof institutional discriminationand illuminatesome of the advantages
and disadvantagesof the model actuallychosen.
An important influence on the Race Relations Act 1976 in general and on the
new definition of discrimination in particular was the sex discrimination
legislation. Indeed there was a clear tendency to equate the two problemsof race
and sex discrimination.In 1970 an Equal Pay Bill had been introducedand passed
by Parliament and was to come fully into effect at the end of 1975.179In
September I974 the White Paper 'Equality for Women'180 detailed the
Government's proposals on sex discrimination which covered not only
employment and training but also education, housing, and the provision of goods,
facilities and services. It also announcedthe Government'saim to 'harmonizethe
powers and procedures for dealing with sex and race discrimination so as to
secure genuine equality of opportunityin both fields'.'81
The harmonizationissue involved two inter-linkingquestions. First, should the
procedures,coverage and enforcementprovisions of the two Acts be harmonized?
Secondly, if they should, should a single agency with powers to deal with race and
sex discrimination be established? The decision taken by the Government was
that harmonizationshould not go so far as to include a single enforcementagency
at that time, but that there were strong arguments in favour of adopting, almost
entirely, similar coverage and enforcementdetails for the eradicationof race and
sex discrimination.
Not only should this have the practical advantages of increasing public
understandingof how the two Acts operated and of enabling both enforcement
agencies to work on similar lines, there also appearedto be political advantagein
easing the passage of any race relationslegislation since Parliamentwould already
have approved virtually identical enforcement provisions in the Sex
DiscriminationAct (SDA) 1975.
178 The term 'indirect discrimination' is, under both the Sex Discrimination Act 1975 (SDA) and
the Race Relations Act 1976 (RRA 1976), used to describe the type of discriminationcovered by
section I(I)(b) of these Acts. Confusingly, the term in also used in the jurisprudenceof the Court
of Justice of the European Communities to describe differing meanings of discrimination
relevant to Art 119 EEC on equal pay. See e.g. opinion of J-P Warner AG in Jenkins v
Kingsgate Ltd [1981] ICR 592, 601-2. In this article, I will use the term to refer only to the
former.
179 Equal Pay Act 1970.
I80 (HMSO I974) Cmnd 5724.
18i Ibid., para 24, (emphasis added).
338
INSTITUTIONAL
DISCRIMINATION
Because of the tendency to equate the two problems of sex and race
discrimination,it is useful to consider the concepts used in the sex discrimination
legislation. Initially the limited definition of discrimination in the I968 Race
Relations Act was suggested, i.e. that specific discriminatory intent was
required.'82 This was despite the White Paper's conclusion that inequality
between men and women was 'caused less by conscious discrimination against
women than by the stereotyped attitudes of both sexes about their respective
roles. And many who make the importantdecisions about the treatmentof women
do not discriminate against them because of conscious personal prejudice but
because of prejudices of which they are unaware'.83 In other words, the more
broad ranging attack on institutional discriminationadopted in the United States
cases, in particularin Griggs, was initially rejected.
Not till the end of January 9r75 was a coherent rationale for a new emphasis
away from the intention based approachto discriminationtaken by the 1968 Act
first publicly articulated by critics of the White Paper. In an article entitled
'Towards True Equality for Women' in New Society, Luise and Dipak Nandy,'84
stimulated at least in part by Louis Pollock'sRunnymedeTrust paper,'85provided
an influential analysis of the deficiencies of relying solely on an intention based
idea of sex discrimination.'86The Nandys' article was followed by the visit of Mr
Jenkins (then Home Secretary), and his advisers Sir Arthur Peterson and Mr
Antony Lester QC to the United States early in I975. This visit reinforcedin the
minds of those involved in the preparation of the sex and race discrimination
legislation, the need to incorporate a wider definition of discrimination in the
legislation and to move away from an 'intention' based test.'87 When the Sex
Discrimination Bill was published in March 1975 it included a new sub-clause
which attempted to incorporateAmericandevelopmentsinto British legislation.'88
This was followed by the Race Relations Bill which includeda similarprovision.
A second important influence on the legislation arose from the interaction
between increased Government expenditure on the supply side of the equation,
182 Ibid., para i6.
I83 Ibid., paras 33 aid 34. For the approach of the courts to the meaning of 'direct discrimination'
as this concept of discrimination is now termed, see Grieg v Community Industry and Ahern
[1979] ICR 356 (EAT), Jeremiah v Ministry of Defence [I980] ICR 13 (CA), Page v Freight
Hire (Tank Haulage) Ltd [i98 ] ICR 299 (EAT), Seide v Gillette Industries Ltd [1980] IRLR
427 (EAT), and Coleman v Skyrail Oceanic Ltd [r981] IRLR 398 (CA).
I84 L. Nandy and D. Nandy, New Society 30 January, I975, 245, 246-7.
185 Interview with Mr D. Nandy, 29 March, 1978.
186 See Mr Jenkins, Official Report, 26 March, 1975, 889 HC cols 12-13.
I87 Official Report, Standing Committee on the Sex Discrimination Bill, 22 April, I975, col 48
(Mr Fraser).
188 I(I) A person discriminates against a women in any circumstances relevant for the purpose of
this Act if-. . . (b) he applies to her an unfavourablerequirementor condition which, although
in those circumstances, or circumstances as nearly as may be resembling those circumstances,
he applies or would apply it equally to a man, is such that the proportion of women who can
comply with it is considerably smaller than the proportionof men who can comply with it.
CHRISTOPHER
McCRUDDEN
339
and demand side strategy centring on an expanded idea of discrimination. In
Britain, as in the United States, an expandedlegal meaning of discriminationwas
developed, at least in part, as an alternativeto increasedGovernmentexpenditure
on social programmes.
During the I96os and early I970s, the brunt of the British Government's
explicit initiatives on race, apartfrom anti-discriminationlegislation,immigration
control, and the community relations approach,centred on section 1 of the Local
Government Act I966 and the Urban Programme.Total actual expenditure by
local authorities under section II between 1967 and I975 was ?67.93 million of
which the Government paid grant at the rate of 75 per cent (50 per cent in
1967/68 and I968/69).189 Under the Urban Programme actual Government
expenditure for the period i968 to the end of 1975 was ?55.5 million,'90but it is
difficult to estimate how much of this amount might properlybe designated as
directly race-related.9'"A Runnymede Trust research worker estimated that the
total funds given to specificallyblack self-help projects up to I976 was ?708,056
which represents approximately 5 per cent of the total of about ?I3,825,000
allocated to voluntary projects.'92The Central Policy Review Staff estimated in
1973 that about 60 per cent of the expenditure had gone to seventy-seven local
authorities 'with substantial numbers of immigrants from the Commonwealth',
i.e. those which qualify for a section I I grant.'93
Between 197I and 1976 a substantial number of new Government schemes
seeking to deal with various aspects of disadvantage, poverty, and inner-urban
blight were developed.'94There were numerous suggestions from bodies outside
Government recommending reorganization of some, or all, of these urban
deprivation programmes,in order better to alleviate 'racialdisadvantage'.Within
the Government,however, it would appearthat there was no generalagreementin
1975, either on the presenceof such racial disadvantage,or on the restructuringof
already existing programmes in order to alleviate it. Questioned by the Select
Committee in February 1975 as to what were the common principles in
Government on which the review of race relations was being based, a senior
x89 Memorandum submitted by the Home Office to the Home Affairs Sub-Committee on Race
Relations and Immigration, 5 June, 1980, Home Affairs Committee, Session I980-81, Racial
Disadvantage, vol l, Evidence, HC 424 II (IMSO I981) r6o.
i90 Quoted in C. Demuth, GovernmentInitiatives on Urban Deprivation (Runnymede Trust 1977)
4.
I9I See White Paper, The Organisation of Race Relations Administration (HMSO I976) Cmnd
6603 17.
192 Quoted in Demuth, op cit 5.
193 Op cit, para 232.
194 Community Ievelopment Project, Gilding the Ghetto (CDP I977); Demuth, op cit; J. Stewart,
K. Spencer and B. Webster, Local Government:Approaches to Urban Deprivation (Institute of
Local Government Studies, U Birmingham 1976); P. Lawless, Urban Deprivation and
Government Initiative (Faber and Faber I979); D. H. McKay and A. W. Cox, The Politics of
Urban Change (Croom Helm 1979); J. Edwards and R. Batley, The Politics of Positive
Discrimination (Tavistock I979).
340
INSTITUTIONAL
DISCRIMINATION
Home Office official replied that a number of issues were under review at that
time:
Shouldwe, for example,be seekingcommonprinciplesthat wouldattackthe problemof
racein the widercontextof urbandeprivation-improvingthe lot of the indigenouswhite
populationalongwith ethnicminoritygroupssimultaneously-orshouldwe be goingfor
whatI thinkthe termin vogueis positivediscrimination,
recognizingthatthe problemsof
the minoritygroupsareevengreaterthansomeof the problemsof thoseof the indigenous
populationlivingin deprivedareas.195
Discussions within the Governmentin subsequentmonths involved the feasibility
of including proposals relating to these issues in the White Paper planned for
September 1975. In particular,these issues became entangled with that of the
ComprehensiveCommunity Programmes(CCPs) which had been announced in
I974, but which were still at the planning stage in 1975. The debates during the
developmentof what became the 1976 Act also illustratethe continuing difference
of opinion as to the nature of the problem,whether it was a 'racial'problemor a
problemof immigrants.
Apparently,the first draft of the White Paperon Racial Discriminationin April
1975 concentrated on reform of the anti-discriminationprovisions of the RRA
I968. There were no proposals which explicitly sought to deal with 'racial
disadvantage'. The Minister of State at the Home Office responsible for race
relations and immigrationpolicy (Mr Lyon) had, in his own words, 'a stand-up
fight with officials to put something in'.196Mr Lyon appearsto have objectedthat
however important racial discrimination was, it was not, in the English context,
'the most importantdifficulty facing blacks'. The American analogy, he felt, was
misplaced. 'There, blacks can trace their ancestry through several generations of
Americans. They were born and raised in a common culture with white
Americans, but they have not had an equal stake in their society, because
discriminatorypractices were hallowed by convention and recognized in law'. In
Britain, he argued, blacks were subject to other disadvantages as well. In
particular, the relative newness of black immigration, their deprived and
disadvantaged status in the societies from which they had originally come and
their presence in the run-down areas of the inner cities would, 'if nothing is done
to cope with these problems', begin a 'cycle of deprivation which will have
enormous long-term consequences'. '[T]he available information', he wrote,
'demonstratesclearly enough that a child of a West Indian or Asian immigrant,
living in a poor neighbourhood,is likely to suffer greater disadvantages than a
child from a similar indigenousfamily. The reason is not his colour; it is cultural
arising from the newness of his family in our society, and his consequential
unfamiliaritywith our system.'97
195 Home Office Evidence to the Select Committee on Race, The Organisation of Race Relations
Administration, Minutes of Evidence and Appendices, IIC 448 II (HMSO I975) Q io and Q I I.
196 The Times io May, 1976. Cf also I. Martin, 'Racial Equality' in N. Bosanquet and P.
Townsend, eds, Labour and Equality (HEB 1980).
197 Memorandumsupplied to the author by Mr A. Lyon.
CHRISTOPHER
McCRUDDEN
34i
In addition to the alreadyexisting programmesdealing with urbandeprivation,
Mr Lyon proposed anotherprogramme'to deal with the additionaldisadvantages
which are unique to newcomers from another culture, most of whom are black'.
Having pointed to the fact of the then current economic recession, he proposed
that in addition to the need for the CCPs, a new Local Authority programme
should be developed to replace section i i and Urban Aid. This new programme
would be used with the CCPs, 'to deal with the special disadvantagesof blacks'.
Accordingto an interview after his dismissal as Minister, Mr Lyon's proposalalso
contained a legislative aspect. He 'wanted to have a statutory duty on the local
authoritiesin the areas where blacks lived to searchout the needs createdby these
cultural difficulties and try to prepare a programmein each area for dealing with
this.' His estimate of the cost of providing language training and other such aids
was ?50 million.'98
A somewhat similar suggestion that a statutory duty shouldbe imposed on local
authorities to further equal opportunity, was later also made by the Select
Committee on Race Relations. In their report on the Organisation of Race
Relations Administrationthey recommendedthat 'to facilitate the funding of local
race relations activities a statutoryobligation should be placedon local authorities
to promote equal rights . . ..99
According to Mr Lyon, Home Office officials 'felt it was too late to have
agreementwith other departmentson proposals such as his and they did not think
it was an area they wanted to get into. It also meant some allocationof resources,
and they were not sure that they could get that', given the Government'spolicy of
cutting public expenditure at that time. The issue was pursued, however, in the
press. An article reflectingMr Lyon's views written by Peter Evans of The Times
appeared on May 30. In late June, before the Cabinet Committee met on the
White Paper, The Times described the draft proposals of the White Paper as
'falling far short of the Government'sintention to tackle energeticallydeprivation
in inner city areas'. It continued, 'The question now is whether Mr Jenkins is
strong enough to fight for ideas he himself has preachedagainst the advice of his
officials and eventuallythe Treasury.'200
As published in September 1975, the White Paper's analysis of the issues to be
dealt with by the Governmentwent far beyond the issue of overt discrimination.
The White Paper detailed the evidence of inequality between the majority and
minority groups in employment, housing, and their disproportionatepresence in
the more deprived inner city areas. It concludedthat, despite evidence of progress,
'the condition of the coloured population in the mid I970S gives cause for
concern'.20
In examining the causes of the inequality the White Paper described the 'early
optimism of the early 196os' that 'many of the difficulties experienced by the
198 The Times 0 May, 1976.
199 Para 38. This is the origin of section 71 RRA 1976.
200 The Times 25 June, 1975.
201 Para 9.
342
INSTITUTIONAL
DISCRIMINATION
coloured population stemmed from the fact that they were recent arrivals in this
country and that, with the passage of time, greater familiarityon their part and
greateracceptanceon the part of the indigenous population,some at least of these
difficulties would diminish or disappear'.The White Paper continued, however,
that 'emergingevidence' suggested that early optimism 'may not be justified, that
the problems with which we have to deal if we are to see genuine equality of
opportunityfor the colouredyoungsters born and educated in this country may be
larger in scale and more complex than had been initially supposed'.202Although
there was not as yet sufficient evidence to demonstrate 'beyond argument', the
White Paper put forward as 'a possibility that has to be faced', an alternative
explanation:
. . that there is at work in this country, as elsewhere in the world, the familiar cycle of
cumulative disadvantage by which relatively low-paid or low status jobs for the first
generation of immigrants go hand in hand with poor and overcrowded living conditions,
and a depressed environment. If, for example, job opportunities, educational facilities,
housing and environmentalconditions are all poor, the next generation will grow up less
well-equippedto deal with the difficulties facing them. The wheel then comes full circle as
the second generation find themselves trapped in poor jobs and poor housing. If at each
stage of this process an element of racial discriminationenters in then an entire group of
people are launched on a vicious downward spiral of deprivation.They may share each of
the disadvantages with some other deprived group in society; but few other groups in
society display all their accumulateddisadvantages.203
According to this analysis there seemed to be four elements contributing to
demonstratedinequality.
There still remain a set of problems which arise because we are dealing with newcomers.
It is not to be assumed that these problems will disappearwithout residue simply with the
passage of time, for some of the problems which colouredimmigrantsfaced as immigrants,
for example, linguistic problems, have created handicaps for the second generation (West
Indian as well as Asian) which will continue to require attention and resources for some
time to come. Beyond the problemof cultural alien-ness, there are the problems of the low
status, of material and environmental deprivation which coloured immigrants and,
increasingly, their children experience. To the extent that they share all or some of these
problems with other groups in society, a general attack on deprivation will be relevant to
their problems. But there may be a special dimension to their problems to the extent that
the factor of racial discriminationmultiplies and accentuates the disadvantages which are
shared in part with others. Finally, the problems of racial disadvantage can be seen to
occur typically in the context of an urban problem whose nature is only imperfectly
understood.204
Insufficient evidence was not a good enough reason to wait for 'more conclusive
It was
evidence of deterioratingrace relations and entrenchedracial inequality'.205
202 Para 1o.
203 Para II.
204 Para 13.
Para 12.
205
CHRISTOPHER
McCRUDDEN
343
the Government's duty to prevent these 'morally unacceptable and socially
divisive inequalitiesfrom hardeninginto entrenchedpatterns'.206
There were no new financial proposals announced relating specifically to the
type of racial disadvantage detailed by Mr Lyon. The White Paper 'recognized
that what is here proposed for a further attack on discriminationwill need to be
supplementedby a more comprehensivestrategy for dealing with the related and
at least equally important problem of disadvantage',207but no proposals were
made to deal with it in the White Paper. 'Such a strategy has major public
expenditure implications, including a reassessment of priorities within existing
programmes.It cannot be settled in advance of the outcome of the current major
public expenditurereview.'208Instead, there is an almost unsupplementedreliance
on anti-discrimination legislation. Indeed, in what appears to be an oblique
reference to the issue in a subsequent speech by the Home Secretary, such
legislation and particularlythe expansion of the concept of discriminationappears
as an alternative to the expansion of specific social programmesaimed at racial
disadvantage:
I thereforebelievethat it is both necessary,andjust, for the present,to act as we can in
developingthe much wider and in my view realisticdefinitionof unfairdiscrimination
which we have sought to adopt.This will enableus to undertakeeffectivemeasures
against the whole range of problems,and provide a frameworkencompassingthe
inequitableallocationof availableresources,as well as overtactsof discrimination.209
Thus the strategy of the legislation was to focus on a broader concept of
discriminationratherthan on a large public spendingprogramme.2'0
Indirect discriminationand equality of opportunity
The definition of indirect discriminationis to be found in the Race Relations Act
(RRA) 1976, section I(I)(b):
relevantfor the purposesof
A persondiscriminatesagainstanotherin anycircumstances
or conditionwhich
anyprovisionof this Act if---. . he appliesto thatothera requirement
206
207
208
209
2Io
Ibid.
Para 26.
Para 26.
R. Jenkins, Speech at the National Conferenceof CRCs, I2 September, 1975, 10.
This is not to say that expenditure on section i i and the Urban Programmehas not increased
since that time. Current central government expenditure on section Ix amounts to some ?o5
million per year, with local authorities adding a further 25 per cent of expenditure. Although the
Home Secretary has announced some details of changes in the operation of section iI, no
increased funding has been forthcoming in the recent review of government spending in this
area (Weekly Hansard Issue No. 1225, IODecember, 1981, col Ioo6). The Secretaryof State for
the Environment, however, announced in December I981 that local authorities in partnership
and urban programme areas would be asked to draw up programmes in i982-83 amounting to
?270 million, an increase of ?55 million over 198T-82 (Weekly Hansard Issue No. 1225, 9
December, 1981, cols 865-6).
344
INSTITUTIONAL
DISCRIMINATION
he appliesor wouldapplyequallyto personsnot of the sameracialgroupas that other
but(i) whichis such that the proportionof personsof the sameracialgroupas that other
who can complywith it is considerablysmallerthanthe proportionof personsnot of
thatracialgroupwhocancomplywithit; and
(ii) whichhe cannotshow to be justifiableirrespectiveof the colour,race,nationalityor
ethnicor nationaloriginsof the personto whomit is applied;and
(iii) whichis to the detrimentof thatotherbecausehe cannotcomplywithit.
Broadly, three questions have to be faced by a person alleging indirect discrimination. First (using an employment situation as an example), does the
employer have a requirement for promotion, which he applies to both his
Pakistani and English workers, for instance a requirement that they pass a
language proficiency test? Second, if so, is this requirement such that the
proportion of Pakistanis who are able to comply with it is considerably smaller
than the proportion of English workers who are able to comply with it. For
example, do considerably fewer Pakistani workers pass the test than English
workers?Third, is the person who is actually alleging discriminationnot able to
comply with the requirement-is there proven 'detriment'? In the example of
language testing, is the person who is complaining of discriminationhimself not
able to pass the test ? If the person complainingof discriminationhas been able to
establish these three things a prima facie case has been established. Then the
employer (or whoever it is against whom the discrimination has been alleged)
must show that the requirement is justifiable. If he does not, then indirect
discriminationwill have been proven.
The new concept of indirect discrimination is, like the simple nondiscriminationprinciple(which underlies the idea of direct discrimination),based
on a preference for the individual rather than the group. Both take the
characteristics of groups into account only insofar as it is necessary to do so in
order to allow the individual to compete unhampered by restrictions which
effectively keep individualswithin groups and which are irrelevantor detrimental
to rationaldecision-makingon merit. The concepts are also similarin that they do
not assume that one particularpattern of distributionof goods should result from
these procedures.Both look to how the distributionwas arrivedat ratherthan the
outcome.
Fair equality of opportunity differs from the simple non-discrimination
principle,however, in being positive as well as negative in its requirementsand in
taking into account some of the prior existing disadvantageswhich black workers
bring to the market place. Though phrased negatively, the new meaning of
discrimination sometimes has the effect of requiring employers to do certain
things in addition to prohibitingother actions. For example, if, by advertisingin a
newspaper which is not bought by the majority of potential minority group
workers, a considerable number of these workers are not even aware of job
opportunities,it may be arguedthat the employerhas a positive duty to advertise
CHRISTOPHER
McCRUDDEN
345
in those newspapers which do reach the black population.The employer must, if
he is not to be in breach of the prohibition, so operate his recruitment and
promotions as positively to offset the group relateddisadvantageswhich adversely
affect the black workers'chances of being hired or promoted.
The two principles differ also in the conception of the social processes of
inequality on which they tend to be grounded. A demand for fair equality of
opportunityis more often than not based on a recognitionof the structuralsources
of unequal opportunity and in particularon an acceptance of what has become
known as 'institutionaldiscrimination'.
Finally, fair equality of opportunity,again unlike the simple non-discrimination
principle,requiresquestions to be asked not only about the precisebasis on which
the good being distributed is deservedbut also about the nature of the good being
distributed.
The concept of 'indirect discrimination', as used in the Act, is based on the
United States model but with severaldifferences.'Indirectdiscrimination'and the
Griggs test of discrimination on the one hand, serve similar functions. Each
attempts to some extent at least to circumventthe problemsof proof of intentional
discrimination,to go beyond its individualizednature, and to provide a basis for
intervening against the present effects of past and other types of institutional
discrimination.21
They are similar too in that, in both the United States and Britain, the change
in the meaning of discrimination has involved the adoption of a 'persuasive
definition'. By a 'persuasive definition' I mean, following Stevenson, 'one which
gives a new conceptualmeaning to a familiarword without substantiallychanging
its emotive meaning, and which is used with the conscious or unconsciouspurpose
21
For a discussion of the functions of the effects test in the United States, see P. Brest, 90 Harv L
Rev I, 22-53 (1976). Circumstances which have been alleged in British tribunals to amount to
indirect discrimination include: a shop refusing to hire youths from predominantlyblack innercity area, Hussein v Saints Complete House Furnishers [x979] IRLR 343 (IT); an employer's
prohibition of beards, Singh v RowntreeMackintosh [1979] IRLR 199 (EAT), Panesar v Nestle
Co Ltd [1980] ICR 144 (CA); a condition that applicants for employment pass a language test,
Ullah v British Steel noted in IRRR No. 213, December 1979; Isa and Rashid v BL Cars Ltd
noted in IRLIB No. i80, io March, 1981; employer's prohibition of trousers for women
employees, Kingston and Richmond Area Health Authority v Kaur [I98I] ICR 631 (EAT);
acceptance of educational qualifications only from universities in the British Isles in order to
qualify for shorter professional course, Bohon-Mitchell v Council of Legal Education [1978]
IRLR 525 (IT); a requirement of prior experience in management as a condition for MSC
grant, Ojutiku and Oburoniv Manpower Services Commission, The Times, 28 May 1982 (CA);
a requirementthat applicants for posts of telex operators should within six months and without
formal training become competent in the use of the machine, Bayoomi v British Railways
Board [1981] IRLR 43I. For examples of situations which the CRE consider may involve
indirect discrimination, see CRE, Draft Code of Practice, January 1982 (reprinted in IRLIB,
No. 201, pp. 6-14), and CRE, Formal Investigation Report into F. BroomfieldLtd (CRE 1980).
346
INSTITUTIONAL
DISCRIMINATION
of changing, by this means, the directions of people's [attitudes]'.212Accordingto
Stevenson there are a number of words which have both a vague conceptual
meaning and a rich emotive meaning. The conceptual meaning of all these is
subject to constant redefinition.'Culture'and 'justice' are examples. Such words,
he writes, 'are prizes which each man seeks to bestow on the qualities of his own
choice'.213An example will illustrate the point. 'Democracy'it might be arguedby
some is not really a matter of certain electoral procedures;it is really a matter of
Governmentin the ultimate interests of the people. Persuasivedefinitionsredirect
attitudes by changing only the conceptual meaning of the emotively laden term,
allowing the emotive meaning to remain constant. To use the term
'discrimination' to describe those situations which would be included in RRA,
section I(I)(b) but not in RRA, section i(i)(a) is to adopt such a persuasive
definition. The attempt is to capture and retain the repugnanceand abhorrenceof
the older meaning of discrimination while at the same time applying it to a
conceptuallywider set of circumstances.
In other respects, however, the new meaning of discriminationserves differing
functions in each country. In Britain, barriers adversely affecting the immigrant
more than the indigenous are likely to be among those most under attack; in the
United States the barrierssubject to legal action are largely between indigenous
workers. In Britain the purpose is still largely preventative.In the United States
the purposeis largelyremedial.
Some of the differences are reflected in the drafting of the indirect
discriminationprovisions in the RRA 1976. Most importantly, perhaps, there is
no requirementin this Act that past discriminationbe shown. In Britain too, the
indirect discriminationprovision applies across the board and is not confined,as it
appears to be becoming in the United States, to employment situations. Other
differences arise from the different institutional origins of the tests. The British
approach to statutory drafting-spelling out as much as possible in specific
language-has led to some issues arising in Britain that appearnot to arise in the
TJnited States, and vice versa. Despite these differences,however, a continuation
of the comparative approach remains justified when examining in detail the
meaning and proof of indirect discrimination in the British legislation, to some
aspects of which I now turn.
The extent to which the legislation can reach institutional discriminationas it
appears in Britain depends on the interpretation of several key aspects of the
212
C. L. Stevenson, XLVII Mind 331 (I938). The 'persuasive definition' approach is closer to my
understanding of these developments than the alternative view that 'discrimination' is an
'essentially contested concept', W. Gallie, 56 Proceedingsof the Aristotelian Society 167 (I955).
With discrimination there was an original core meaning which has changed over time, in
contrast with, say, 'equality' in which a number of differing conceptions have always been in
competition, R. Dworkin, Taking Rights Seriously (Duckworth 1977) 226.
213 Ibid., 333.
CHRISTOPHER
McCRUDDEN
347
definition of indirect discrimination.These involve (i) the role of choice, (ii) the
use of statistics, (iii) 'detriment',(iv) 'justifiability'.21
The role of choice
In the definition of indirect discrimination in section i(i)(b) the phrase 'can
comply' occurs twice: in sub-para(i) and sub-para(iii). The question arises as to
the sense in which 'can' is used here. In particular,to what extent should previous
decisions and choices determine the scope of the right not to be indirectly
discriminatedagainst?2'5
In Price v Civil Service Commission,216 one of the first Employment Appeals
Tribunal (EAT) cases to examine the implications of the section, applicants for
executive officer positions in the civil service were requiredto be under twentyeight years of age. Mrs Price was over twenty-eight. Had her right not to be
subject to indirect discrimination been breached? General population statistics
showed that the proportion of women over twenty-eight was not considerably
smaller than the proportion of men over twenty-eight. The Civil Service
Commission argued that the proportion of women who 'could comply' with the
requirementwas thereforenot 'considerablysmaller'.'In one sense it can be said
that any female applicant can comply with the condition. She is not obliged to
marry, or to have children, or to mind children; she may find somebody to look
after them, and as a last resort she may put them into care'.217
A similar issue arises in sub-para(iii). The interpretationof 'can comply' in that
paragraph was of central importance in Bohon-Mitchell v Council of Legal
Education.21 Non-law graduatesfrom British or Irish universitiesreading for the
Bar were requiredby the Council of Legal Education to take a diploma in six core
subjects on a course lasting twelve months. Overseas non-law graduates,however,
were required to take the diploma in eight subjects in a course lasting two
academic sessions, that is twenty-one months. An important reason for the
difference in requirements, according to the Council, was the need to have an
understanding of the relationship of the law to the social and economic
environment in which it operates. It was felt that barristers needed a wide
Other issues not dealt with in this article include the meaning of 'requirementor condition' (see,
e.g. Clarke and Powell v Eley (IMI Kynoch Ltd) [I982] IRLR 131 (IT); Francis v British
Airways Engineering Overhead Ltd [1982] IRLR io; Wong v Greater London Council (EAT,
unreported, 15 October, 1980) and 'racial group' (see Kingston and Richmond Area Health
Authority v Kaur [1981] IRLR 337, 339 (EAT) Commissionfor Racial Equality v Genture
Restaurants (CA(CO)), unreported, 15 April, I98I). For an earlier discussion of these and other
issues, see L. Lustgarten, Legal Control of Racial Discrimination (Macmillan 1980).
215 The issue appears as yet to have received little direct consideration in the United States. See
however Garcia v Gloor 618 F 2d 264 (CA-5 I980), cert denied, 449 US 113, and EEOC v
GreyhoundLines Inc 635 F 2d i88 (CA-3 I980).
216 [g978] ICR 27 (EAT).
214
217
Ibid., 31.
z28 [1978] IRLR 525 (IT).
348
INSTITUTIONAL
DISCRIMINATION
knowledge of 'the English way of life'219and if overseas non-law graduates had
only one year for the academic stage it could not be certain that they would
acquirethis knowledge.
Ms Bohon-Mitchellcomplained that the Council discriminated against her on
grounds of nationality or national origin contraryto the RRA I976 by refusing to
grant her a certificateof eligibility to complete the academic stage of training for
the Bar which would permit her to take a diploma course over a period of one
year, instead of over two years. She was a United States citizen, with a degree in
English Literaturefrom Columbia University. Except for one year, she had lived
in Britain since 1972 and was married to an English doctor. Counsel for the
respondent argued that the applicant 'could have' complied: 'She had it in her
power to go to a law school in America, to have taken a degree at a university in
this country, to have remained in this country and not to have broken her
residence qualificationfor a grant or to have continued with her external LL.B.
degree'.220
In section i(i)(b) two sets of choices may be relevant therefore: the choice of
the group (as in Price) and the choice of the individual(as in Bohon-Mitchell)but
the issue is similar in both cases: should the presence of an attribute which an
employer requires but which is absent in the individualcount as a disability for
the purposes of the section even when it is absent partlyby reason of one course of
action having been chosen rather than another? In both cases the 'choice' which
had been made was held not to have determined the issue of whether there had
been discrimination.Behind both judgments appearsto lie a recognitionof how in
the past supposed freedom of choice was used as a smoke screen for gross
economic exploitation,221though it emerges in rather different ways in each
judgment. In Price the EAT rejected the argument of the Civil Service
Commissionin the following terms:
Sucha constructionappearsto us to be whollyout of sympathywith the spiritandintent
of the Act ....
It should not be said that a person 'can' do something merely because it is
theoi tically possiblefor him to do so: it is necessaryto see whetherhe can do so in
practice. Applying this approach to the circumstances of this case, it is relevant in
determining whether women can comply with the condition to take into account the
current usual behaviourof women in this respect, as observed in practice, putting on one
side behaviourand responses which are unusual or extreme.222
In other words the tribunal felt justified in looking behind the choice. The choice
made by the group cannot be abstracted from the typical behaviour patterns of the
group to which the complaint belongs and these bchaviour patterns, in turn,
219 Ibid., 528.
220 Ibid., 529-30.
221
Cf D. N. MacCormick, 'Rights in Legislation' in P. M. S. Hacker and J. Raz, Law, Morality
and Society (OUP 1977) 189, 208.
222 [1978] ICR 27, 31.
CtIRISTOPHER
McCRUDDEN
349
cannot be abstracted from the social structures which the Act is intended to
change.
In Bohon-Mitchell, the argumentof the Council was also rejected:
The wordsare'cancomply',they arenot 'couldhavecompliedif she hadtakendifferent
decisionsat an earlierdate'.Whenshe tookthe decisions. . she was not awarethat the
conditionof whichshenow complainswouldbe imposed,it cannotherebe saidthatwhen
she took them she was deliberatelyputting it out of her powerto comply.Nor is it
sufficientthat at somefuturetime she maybe ableto obtaina homedegreeandso comply
withthe condition.223
Unlike in Price, however, the tribunal is not concerned with the 'current usual
behaviour' but with individual choice. The justice of using it as a means of
defeating the complainant's case is, similarly, however, not acceptable, since in
some way it has been vitiated by lack of awarenesson the complainant'spart as to
the implications of her 'choice'. Where the complainant's choice was neither
'determined'nor taken when unawareof the consequences,however, when (in the
words of a subsequent industrial tribunal decision) the choice was 'free and
the statute will hold the person to that choice.
informed',224
The use of statistics
Because the problem is one relating to groups rather than one involving an
individualdispute as in the traditionalmodel, statistics of group patterns are even
more relevant. In the United States the approachto establishinga primafacie case
of indirect discriminationis heavily dominatedby the use of statistical evidence to
establish that the use of a criterion has had an adverse impact on a minority
group.225It may be useful if I sketch briefly six of the main ways in which
statistics might be used before examininghow they have beenused: (i) comparing
what the pass/fail rates by race of persons in the generalpopulation(i.e. potential
applicants) would be if the contested requirementwas applied to them, with the
racial composition of the general population; (2) comparingthe pass/fail rate by
race of persons who would be 'qualified'in the general populationif the contested
requirement was applied to them, with the racial composition of the 'qualified'
population; (3) comparing the pass/fail rates on a particulartest or criterion by
race of actual applicants for the job, with the racial composition of the actual
applicantgroup; (4) comparingthe racial composition of those accepted, with the
racial composition of all actual applicants;(5) comparingthe composition by race
of the relevant population or labour pool, with the composition by race of the
employer's workforce;(6) comparingthe composition by race of higher level jobs
within the employer'sworkforce,with the composition by race of lower level jobs
in the employer'sworkforce.226
223
224
225
226
[1978] IRLR 525, 530.
Clarke and Powell v Eley (IMI Kynoch Ltd) [ 1982] IRLR 13 (IT).
Teamsters(IBT) v United States 431 US 324 (I977).
B. L. Schlei and P. Grossman, Employment Discrimination Law (BNA 1976) 177 and cases
cited there.
350
INSTITUTIONAL
DISCRIMINATION
The first three methods would seem to be limited to situations where more
objective criteria such as a high school diploma or a minimum height is required.
Demographic considerationswould be discoverablefor criteria such as these, but
not for the more undefined,subjectivecriteria.The fourth method, the comparison
of personnel actions to applicantflow, and the fifth method, the comparisonwith
the composition of the relevantpopulationof labourpool, would seem suitablefor
use in litigation involving subjective criteria; the first five methods would be used
for demonstrating adverse impact for initial hiring; the sixth method for
promotionissues.227
A number of issues have arisen from the availabilityof these differentmethods
of demonstrating a prima facie case.228 What are the proper sources of
statistics?229What is the relevant geographic area of these statistics?230What is
the proper time frame for the statistics?231How much disproportionateimpact is
'adverse'?232On what basis is one to decide between conflictingconclusionsbased
on differentstatistical tests?
In Price v Civil Service Commission233
there was a clear preferenceexpressed,
given the facts of the case, for the second over the first method of demonstrating
adverse impact, but the case gave little more guidance in selecting among other
methods and no other reportedEAT decision has examined the issue. Nor, in the
industrial tribunals, is a consistent approach taken. The deficiencies of the
adversary process are particularly evident, so that the sophistication of the
approachtakenby industrialtribunalsis apparentlyconsiderablyinfluencedby the
sophisticationof the evidence presentedby the parties.234
British courts and tribunalshave actually decided few of the issues which have
continued to concern Americancourts with respect to the use of statistics. One
issue in particularwhich has come to the fore in the United States has not as yet
227 Ibid.
228 Although there are considerable differences in the ways in which claims under the disparate
229
230
231
232
233
234
treatment and disparate impact theories are to be proven (per Marshall and Brennan JJ, Furnco
Construction Co v Waters 438 US 567 (1978), concurring and dissenting opinion), a number of
cases on the use of statistics in disparate treatment cases have also been found relevant in
disparate impact cases, see Dothard v Rawlinson 433 US 321 (1977).
Cf Dothard v Rawlinson 443 US 321 (I977).
Cf Hazelwood School District v United States 433 US 299 (1977).
Cf Movement for Opportunity and Equality v General Motors Corp 622 F 2d 1235 (CA-7
1980).
On degree of adverse impact required by the agencies, see Uniform Guidelines on Employee
Selection Procedure(1978), 29 CFR 1607, 2 Employment Practices Guide (CCH) para 4010: 'A
selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty per
cent) of the rate for the group with the highest rate will generally be regarded by the Federal
enforcement agencies as evidence of adverse impact, while a greater than four-fifths rate will
generally not be regarded by Federal enforcement agencies as evidence of adverse impact'
(section 4 D).
[ 979] ICR 27 (EAT).
See, e.g. Bohon-Mitchell v Council for Legal Education [1978] IRLR 525 (IT) (qualified
House Furnishers [I9791 IRLR 343 (IT)
population statistics), and Hussein v Saints Comnplete
(general population statistics).
CHRISTOPHER
McCRUDDEN
35I
arisen in British courts and tribunals: on what basis is one to decide between
conflicting conclusions based on different statistical tests each of which is equally
appropriate?235 Should the primary focus be on the percentage of the minorities
who are actually hired, or on isolating and eliminating single exclusionarycriteria
in the overallhiring process?
Several American lower court decisions support what has been called the
'bottom line' approach whereby the primary focus is on the percentage of
minorities who are actually hired into jobs at each level of skill, pay and status
ratherthan on any single criterionin the hiring process.
The bottom line approach presumes that there will be inequalities with respect to
particular elements of the selection process, but these inequalities will nevertheless balance
themselves out during the course of the entire selection process. For example, if there are
o0 elements to the selection process, and one of them is a requirement that all applicants
must be over 5' 7" tall this sub-element of the selection process undoubtedly has a
disparate impact, for example on Spanish-surnamed Americans. Yet if other parts of the
selection process favour Spanish-surnamed Americans, with the result that Spanishsurnamed Americans are hired in the proportion they bear to the applicant pool, which in
turn properly reflects the relevant labor market, then under the bottom line theory there
would be no violation.236
In other cases however, this approach has been rejected. Schlei and Grossman
conclude that,
plaintiffs, defendants, and courts may well find that the problem of conflicting conclusions
from statistics will become increasingly important in future litigation, with the eventual
outcome perhaps depending on whether, in the final analysis, one views employment
discrimination laws as mandating the elimination of unfair treatment or the reallocation of
jobs.237
British courts too will have to decide whether it is the process or the result which
is more important.
235 Cf EEOC v American National Bank 652 F 2d I 76 (CA-4 I981).
236 Schlei and Grossman, op cit I 191-2.
237 Ibid., 1193. The Supreme Court has agreed to consider the issue in Teal v State of Connecticut
645 F 2d 133 (CA-2 i98i), cert granted, 102 S Ct 89 (198I). A modified 'bottom line' approach
has been adopted in the Uniform Guidelines on Employee Selection Procedure, op cit (1978),
section 4 C: 'If ... the total selection process for a job has an adverse impact, the individual
components of the selection process should be evaluated for adverse impact. If this information
shows that the total selection process does not have an adverse impact, the Federal enforcement
agencies, in the exercise of their administrative and prosecutorial discretion, in usual
circumstances, will not expect a user to evaluate the individual components for adverse impact,
or to validate such individual components, and will not take enforcement actions based upon
adverse impact of any component of that process, including the separate parts of a multi part
selection procedureor any separate procedurethat is used as an alternativemethod of selection.'
For a considerable weakening of the statute through adopting a bottom line approach, see
EEOC v Greyhound Lines Inc 635 F 2d i88 (CA-3 1980), in which the court held that 'no
violation of Title VII can be grounded on the disparate impact theory without proof that the
questioned policy or practice has had a disproportionate impact on the employer's workforce',
635 F 2d I88, 96 (emphasis added).
352
INSTITUTIONAL
DISCRIMINATION
I argued previously that the concept of indirect discrimination is based on a
principle of proceduraljustice which makes no assumption that a particular
pattern of distribution of goods should result. It is not my intention in this article
to enter into a detailed discussion of the relationshipbetween proceduraljustice
and other conceptions of distributive justice.238There is considerable scope for
further examination of the relationship between that debate and government
policy on race relations.239Any such examinationwould need to consider whether
the conception of distributivejustice on which indirect discriminationis based is
insufficientand whether a strongerconception should be adopted,for exampleone
which would hold that the fairness of the distribution should be determined by
whether the resulting distribution conforms to some particular pattern of just
distribution.What should be looked at, in judging the justice of the distribution,is
who ends up with what, in addition to the process leading up to that distribution.
From this principle would come the argument that minority groups have
somewhat different needs from the rest of the population and therefore that
resources should in some cases be distributed unevenly in their favour on account
of this. In its egalitarian form this alternative may be called equality of results.
These distinctions between fair procedures and fair distribution, between fair
equality of opportunity and equality of results, may appear to dissolve in the
actual administrationof the indirect discrimination test 'under the ambiguity of
what constitutes an equal start, or-what amounts to the same thing-what
quality the competition is supposed to test'.240In other words, the idea of
discrimination that takes into account factors contributing to an unequal start
could look very similar to adoption of a results approach. Nevertheless, in
principle,there are differencesbetween the two and it is in order to preservethat
distinction that I preferthe 'process'over the 'results' approachwhere there is an
ambiguity in the way in which a prima facie case of indirect discriminationmight
be established.It is truerto the intentions of those who enacted it.
The degreeof adverse impact necessary to establish a prima facie case is likely
to become an importantissue in litigation. In Price241the EAT was unpreparedto
decide whether the proportionwas considerablysmallerand the case was remitted
to the industrial tribunal for further statistical evidence.242The EAT indicated,
238 See further J. Rawls, A Theory of Justice (OUP 1972) esp 83-90 and R. Nozick, Anarchy, State
and Utopia (Blackwell 1979) I53-I60.
239 It is worth stressing that I have been concerned only with the substantive violation aspect of the
RRA 1976. A fuller consideration of the adequacy of the legislation as a whole would also have
to consider the adequacy of the principle(s) on which the Act's remedial provisions are based.
For a preliminaryattempt, see C. McCrudden,[ 198] CurrentLegal Problems211.
240 D. Miller, Social Justice (OUP 1976) 241.
241 [I978] ICR 27 (EAT).
such
242 In the industrial tribunal, the Civil Service Commission conceded that the age ban was
that the proportion of women who could comply with it was considerably smaller than the
proportion of men who could comply with it, and that it was to the applicant's detriment. The
only question remaining related to the establishment of discrimination was whether the
condition was 'justifiable', see infra, 359, Price v Civil Service Commission (No. 2) [I978]
IRLR 3 (IT).
CHRISTOPHER
McCRUDDEN
353
however, that it should not be made too difficultto establish a prima facie case of
indirect discrimination, since 'compliance with sub-para(i) is only a preliminary
step, which does not lead to finding that an act is one of discriminationunless the
person acting fails to show that it is justifiable'.243
It would be unsurprisingif an attempt was made to avoid the heavy emphasis
on statistics of American courts. There are a number of reasons to suppose that
this will be the preferenceof the courts and tribunals. In Fletcher v Clay Cross
(Quarry Services) Ltd44 the Court of Appeal stressed the need to avoid
'legalism'245in the interpretationof the Equal Pay Act 1970 and reiterated its
desire to return to as uncomplicateda constructionof the Act as possible because
of the function of industrialtribunals.246In that case the Court so construed the
Act as not to requirecomplicated statistical evidence and contrasted its preferred
approach with that of an equivalent American case.247A second reason is the
difficulty of obtaining statistical information of the type which would be
required. Unlike the United States, where employers are required to collect
statistics of the racial compostion of their workforce,there is no such requirement
in Britain.248Without such a requirement, such statistics are unlikely to be
available. The Government has decided, however, as an encouragementto other
employers and as an indicationof their 'determinationto give a lead in combatting
the twin problems of racial disadvantage and racial discrimination',to set up an
experimental census of the ethnic composition of some non-industrial Civil
Service grades in a limited area. 'Its purpose would be to establish a sound
statistical method for monitoringthe Civil Service'.249
243 In Dick v University of Dundee (IT Case S/3814/8I, unreported) the industrial tribunal
apparentlyheld that the 'considerably smaller' proportion test had been satisfied on the basis of
statistics which showed (i) that the number of female employees complying with the condition
(being a full-time employee) was 60 per cent but the number of male employees working fulltime was 88 per cent, and (ii) that the number of male employees who were not able to comply
with the condition was only i2 per cent of the total male working force whereas the number of
such female employees was 40 per cent of the whole female workforce.In Perera v Civil Service
Commission[i982] IRLR 147 the EAT held that a condition or requirement that an applicant
be under 32 was indirectly discriminating against the plaintiff. On taking one group as the
relevant pool, 22 of the whitecX'ere under 32, whereas none of the non-whites were. On taking
another group as the relevant pool, o10 of the T36 whites were under 32, whereas none of the 26
blacks were.
244 [I979 ICR i (CA).
245 Ibid., 8 (per Lawton LJ).
246 Ibid. See also Perera v Civil Service Commission, supra, per Browne-WilkinsonJ.
247 [I1978] IRLR 361, 365. Cf an even more extreme reaction in Jalota v Imperial Metal Industrial
(Kynoch) Ltd[1979] IRLR 313 (EAT).
248 In order to lessen some of the difficulties caused by this, the Home Affairs Committee of the
[Houseof Commons has recommended the inclusion of an ethnic question in theI986 sample
census, and the introduction of monitoring in the Civil Service, Ilome Affairs Committee,
SessionI980-81,
Racial Disadvantage, Report HC 424 I (HMSOI981) paras 8-9, 202.
249 Weekly Hansard Issue No. 1225, 10 December, 198I, col oo6 (Mr Whitelaw).
354
INSTITUTIONAL
DISCRIMINATION
Detriment
Does the requirement in section i(i)(b)(iii) that 'detriment' be shown add
anything of its own force, or does it merely prevent a complaintbeing successfulif
the complainantis not personally adversely affected by the practice sought to be
struck down? Or does it require further that the claimant prove that if the
contested requirementor condition had not been applied to him, he would have
got thejob (i.e. not just that he was disadvantagedby the requirementbut that the
condition or requirementwas the reason for his not getting the job)?250
This issue has not, thus far, arisen in any reportedcase. The problemsto which
it may give rise, however, become clear when the British Steel25 case is
considered. In that case seven Bangladeshis had for some years prior to the
summer of I977 been employed at the British Steel works in Scunthorpe.After
returning from an extended visit to Bangladesh they reapplied for their old jobs
but were refused reemployment because they failed an English language test
which had become a pre-condition of employment. The applicants alleged that
they were being indirectly discriminated against. British Steel denied
discriminationand maintainedthat its test was justifiable and, indeed, necessary,
if the Corporationwas to comply with the Health and Safety at Work Act 1974.
The case was eventually settled without a final decision by a tribunal, on the
basis of an agreement between the seven applicants, the Commission for Racial
Equality (the CRE), which was giving assistance, and British Steel. The
Corporation acknowledged that the test which the applicants failed was not
professionallydevised. They agreed thereforeto retain a recognized expert in the
field of selection testing to review English language testing at the plant. It was
agreed that British Steel's expert would work in cooperation with another
recognized expert in the field of selection testing, retained by the CRE. When the
review was completed British Steel agreed to consult the CRE in the light of its
obligationsunder the Race Relations Act 1976.252
One of the issues which arose but was not settled concernedthe interpretation
of sub-para(iii). The complainantsarguedthat the consequenceof their failing the
test was not getting a job, and since they would have got the jobs had it not been
for the test, they were subjected to a detriment. They accepted that there might
have been no detriment had they been disqualifiedfrom getting the job on some
other grounds (e.g. if any of them had been past retirement age) but this was not
the case.
250 This issue, surprisingly, appears to have been addressed only recently in the United States, see
EEOC v GreyhoundLines Inc 635 F 2d i88 (CA-3 1980).
251 Ullah v British Steel noted in IRRR No. 213, December 1979. See also Runnymede Trust
Industrial Briefing Paper No. 2, Language Testing and Indirect Discrimination: Lessons of the
British Steel Case (I980) for the arguments of both parties. I have drawn heavily on the latter
discussion in the following paragraphs.
252 See J. Goodman, Personnel Management February 1980, 38 for a discussion of the issues by the
British Steel expert.
CHRISTOPHER
McCRUDDEN
355
British Steel argued that this interpretationwould rob the term 'detriment'of
most of its significance,in that it would then be sufficientfor an applicantto show
that he could not comply with the requirementin order to make out this part of
his case. According to the Corporation,an employer was entitled to impose some
language test. The applicants'English was so poor that they would have failed any
test. Unless the applicantscould show that they would have passed a 'legitimate'
test, they could not prove that they had really lost anything by failing the
Corporation's test and thus suffered no detriment. If accepted, this argument
would have involved an applicantbeing requiredto show (I) what level of ability
was requiredfor the job, (2) what a proper test of such ability is, and (3) that he
would have passed it.
There are, however, a number of convincing arguments against the
Corporation'sinterpretation.In the first place the approachput forwardby British
Steel ignores the structure of the Act in important respects. The function of the
prima facie case is to bring forward a situation which the respondent is required
to consider and attempt to justify. To requirea complainantto demonstratethat a
condition or requirement is not justified in some respects (as the British Steel
interpretationwould do) raises precisely the issue which the respondent is put to
deal with in sub-para(ii). The British Steel interpretationwould surely rob that
paragraphof most of its significance, particularlygiven that the onus to prove
justifiabilityis placed on the respondeht,not the complainant.
This argument against the British Steel approach is strengthenedby another
consideration,also derived from the structureof the Act. An alternativeapproach
which considers the detrimentrequirementin sub-para(iii) as nothing more than
a bar to complainants not personally adversely affected by the requirement or
condition impugned, is supportedby examining the relationshipbetween section
i(i)(b) and section 28. This latter provision makes it unlawful to apply, or to
operate a practice which would call for the application of, a condition or
requirement which results, or would be likely to result, in an act of indirect
discrimination. The Home Office guide explains the purpose of the provision as
follows:
The kind of practiceagainstwhich this provisionis directedis one whichembodiesa
conditionor requirementwhich has to be compliedwith before some benefitcan be
if it wereappliedto a person
obtained,andwhichwouldamountto indirectdiscrimination
of a particularracialgroupseekingthe benefit.However,the conditionor requirement
maybe so effectivea deterrentto personsof the racialgroupin questionapplyingfor the
benefitthat no suchpersoneverapplies.Consequently,
no suchpersonis everrefusedthe
benefitso no unlawfulindirectdiscrimination
occurs.The Act makespracticesembodying
suchconditionsor requirements
unlawfuleven though,as explained,theremayhavebeen
no actof unlawfulindirectdiscrimination.253
Given this meaning of section 28, and the vitally important limitation that only
253 Home Office, Racial Discrimination: A Guide to the Race Relations Act, 1976 (HMSO I977)
24.
356
INSTITUTIONAL
DISCRIMINATION
the CRE may take proceedingsunder that section,254it can be seen that sub-para
(iii) in the context of the scheme of the Act as a whole, is in reality allocating
powers between the individual plaintiff and the CRE, rather than between the
plaintiffand the respondentas the British Steel interpretationwould do.
'Justifiability'
We have seen how there were a numberof questions which were left undecidedby
Griggs. In many cases the lower Federal courts tended to give answers which
broadened the scope and increased the effective range of the effects test. The
interpretationof the 'business necessity' defence was a case in point.255To put the
approach briefly, the courts required an employer to satisfy the court on two
separate questions if he raised the business necessity defence: firstly, that the
exclusionary condition or practice had been 'validated'(the meaning of which I
shall consider below),256and secondly that there was no acceptable alternative
which would have a less exclusionaryeffect.257
Before turning to consider these issues in greater depth, however, it is
importantfirst to consider a particularissue which arose outside the terms of the
'business necessity' test but is closely related to it: the extent to which seniority
systems violated Title VII. The issue became even more important after Griggs
due to the economic recession. Many employers who had only recently hired a
significantnumber of minority employees were requiredto lay off workers.Often
collective bargaining agreements contained a 'last hired, first fired' clause
providing that employees with least seniority be laid off first. The applicationof
such a clause frequently resulted in the lay off of a disproportionatenumber of
minority workers.258In a number of cases after Griggs, the courts appearto have
baulked at applying the expanded concept of discrimination to increasingly
254 In CRE, Formal Investigation into F. Broomfield Ltd (CRE i980), the CRE found that
recruitment by word of mouth and personal recommendations constituted a discriminatory
practice contrary to section 28 RRA I976.
255 The United States courts, in interpreting Title VII, have adopted what in Fourteenth
Amendment terms would be called a 'strict scrutiny' approach, despite the availability of a
much more easily satisfied 'rational relationship' test, Albermarle Paper Co v Moody 422 US
405 (1975); Washingtonv Davis 426 US 229, 245-6 (1976).
256 Infra 362.
257 The Fourth Circuit Court of Appeals held, in Robinson v Lorillard Corp 444 F 2d 791 (CA-4
I971), 'the business purpose must be sufficiently compelling to override any racial impact; the
challenged practice must effectively carry out the business purpose it is alleged to serve; and
there must be available no acceptable alternative policies or practices which would better
accomplish the business purpose advanced, or accomplish it equally well with a lesser
differential racial impact' (444 F 2d 798, footnotes omitted). Some subsequent decisions of the
Federal courts of appeals have diverged on the extent to which the 'no alternative'element must
be proven by the employer. E.g. in Chrisner v Complete Auto Transit, Inc 645 F 2d 1251,
25 EPD 31, 669 (CA-6 I981) the Sixth Circuit Court of Appeals held that it was not necessary
for the employer to show that no acceptable alternative existed. See also Blake v City of Los
Angeles 595 F 2d I367 (CA-9 1979), cert denied, 446 US 928 (I980).
258 Note, 88 Harv L Rev I544 (I975).
CHRISTOPHER
McCRUDDEN
357
complex industrialrelations situations such as these, in which the idea of seniority
itself came under increasingchallenge in circumstanceswhere it was less and less
clear that an intention to discriminatehad been present in the establishmentof the
seniority system in the past. Congress clearly intended, by including a protection
for 'bona fide' seniority systems, that certain types of seniority systems259in
certain situations should be subjected to a less rigorous test than other
employment practices, presumably because of some notion that entrenched
expectations should be accorded greater weight in the process of eradicating
discrimination.The Supreme Court has acceded to this preferenceto the extent
that the new meaning of discriminationdeveloped in Griggs has not been applied
in its full rigourto seniority systems which have an exclusionaryeffect.260
In Britain, much considerationwas given at the time of the passage of both the
SDA I975 and the RRA 1976 to the terms in which the defence should be drafted.
It seems clear that the Government meant the scope of the provision to be less
broad that that of the American counterpart and tried to achieve this by
substituting 'justifiability'for 'business necessity'.
The meaning of 'justifiability' was challenged on both sides of the Standing
Committee on the Sex Discrimination Bill. There was an attempt during the
passage of the Bill to replace the term with 'necessary' and the debate revolved
around the different implications of each of these terms. At first this amendment
was opposed by the Government because 'the word "necessary" is a more
subjective test than the word "justifiable",which I hope imports the concept of a
just and fair test, whereas "necessary"could be a rather more subjective test in
that it might relate to the requirements of the person who was alleged to
discriminate'.261Three days later, when the Under-Secretaryreturned to try to
explain the meaningof the term, his objectionshad changedsomewhat:
the amendmentwould make the provisionsin paragraph(b) too hard .... I give the
exampleof a personwho offersreducedfaresto old-agepensioners.The conditionthat a
person be a pensionerin order to qualify for such a benefit would be relatively
259 As to what constitutes a seniority system, see California Brewers Association v Bryant 444 US
598 (1980).
260 See Evans v United Airlines Inc 431 US 553 (1977), Teamsters (IBT) v United States 431 US
324 (1977). See also Trans World Airlines Inc v Hardison 432 US 63 (1977). Teamsters has
been subject to much lower court comment. The Fifth Circuit Court of Appeals has been the
most influential. In James v Stockham Vales and Fittings Co 559 F 2d 310, 352 (CA-5 1977),
cert denied, 434 US 1034 (I978), the Court identified a number of factors which the Supreme
Court had focused on in Teamsters and which the Court expected subsequent courts to follow in
the interpretation of 'bona fide'. The James approachwas followed by subsequent Fifth Circuit
Courts of Appeals in Fisher v Proctor & Gamble Mfg Co 6I3 F 2d 527 (CA-5 I980), cert
denied, o01 S Ct 929 (198I), United States v Georgia Power 634 F 2d 929 (CA-5 I98I), Terrell
v United States Pipe and Foundry Co 644 F 2d I 112 (CA-5 I981). The James analysis was also
followed by the Tenth Circuit Court of Appeals in Sears v Atchison T and S F Ry 645 F 2d
1365, 25 EPD para 31, 621 (CA-Io I98I). For a somewhat different view of Teamsters by the
Sixth Circuit Court of Appeals, see Taylor v Mueller Co 600 F 2d I I I6 (CA-6 198I).
26I Official Report, Standing Committee on the Sex Discrimination Bill, 22 April, 1975, cols 48-9.
358
INSTITUTIONAL
DISCRIMINATION
disadvantageous to men. Whilst it may be said to be justifiable to treat pensioners as a
group, even though this means that a benefit is available to fewer men than women, it
cannot be said to be necessary to treat them as a group. In other words, it is justifiable to
treat a group of pensioners, male and female as a group for the purposes of giving them
concessionary fares, but it is not absolutely necessary. It would be possible to devise other
arrangementsto treat them separately according to their sex. That is one example of why
it is better to have the word 'justifiable'rather than the word necessary.262
In the development of the SDA 1976, seniority was also a concern (possibly
stimulated by the known problems in the United States). One of the main reasons
for the adoption of 'justifiable' rather than 'necessary' was to avoid finding certain
seniority systems in violation of the indirect discrimination provision. During the
Standing Committee debate on the Sex Discrimination Bill, Mr Fraser, on behalf
of the Government, specifically raised the issue of 'last in, first out' redundancies.
An employer who operated such a system 'might be operating a requirement
which would disadvantage more women than men. Such a requirement is not
"necessary", but it should be permitted to be argued that it is "justifiable" on the
grounds that it offers the fairest treatment to his employees .. .,263 He continued:
It is regarded generally throughout industry as justifiable to have an arrangementthat
those who joined the firm most recently are the first to be made redundant. It is not
absolutely necessary to have that. It could be arrangedin some different way. However, if
a principle which is generally regarded as being justifiable is applied-even though it is
not absolutely necessary to apply it-and the balance falls against men, perhaps against
women, the condition of that requirementcan still be upheld. I rather feel that if the word
'necessary'is used, it will make the burden ... too great upon employers.264
Thus, whereas in the United States the problem of the interests of the incumbent
worker in his seniority was treated as an exception to the general approach to
discrimination, and the exception itself was fairly narrowly interpreted, in Britain
in the SDA 1975, and therefore in the RRA 1976, the issue may have had the
effect of weakening the definition of the term as a whole, though to what extent is
by no means clear. It is not surprising therefore that 'justifiability' has been
subject to differing interpretations by the judiciary.
The most important judicial analysis of the meaning of justifiability in Britain
remains that of Phillips J in Steel v Post Office.26' In considering the issue
Phillips J explicitly referred to and approved the American experience and the
Griggs266 case in particular which he termed relevant and 'helpful'. His own
summary of the correct approach to take was in the form of five points:
First, the onus of proof lies upon the party asserting this proposition, in this case the Post
Office. Secondly, it is a heavy onus in the sense that at the end of the day the Industrial
Ibid., 24 April, I975, col 70. See also ibid. cols 53, 74.
263 Ibid., col 71 (Mr Fraser).
264 Ibid. See also Official Report, 362 HC, 4 July, 1975, col ioi6.
265 [1978] ICR i8i (EAT).
262
266 40o US 424 (1971).
CHRISTOPHER
McCRUDDEN
359
Tribunal must be satisfied that the case is a genuine one where it can be said that the
requirement or condition is necessary. Thirdly, in deciding whether the employer has
dischargedthe onus the IndustrialTribunal should take into account all the circumstances,
including the discriminatory effect of the requirement or condition if it is permitted to
continue. Fourthly, it is necessary to weigh the need for the requirement or condition
against that effect: Fifthly, it is right to distinguish between a requirementor condition
which is necessary and one which is merely convenient, and for this purpose it is relevant
to consider whether the employer can find some other and non-discriminatorymethod of
achievinghis object.267
'In other words', he continued, 'a practice which would otherwise be
discriminatory . . . is not to be licensed unless it can be shown to be justifiable,
and it cannot be justifiable unless its discriminatory effect is justified by the
need-not the convenience-of the business enterprise'.268
The evidence presented in Steel showed that prior to I September, 1975 women
were employed by the Post Office as 'temporary full-time' employees but were
discriminated against in that they were not allowed to become 'permanent fulltime'. From that date, as a result of a collective bargaining agreement, women
who were employed full-time were to be employed on the same terms and
conditions as the full-time postmen, with seniority dating from the date they
became permanent full-time. The effect of this was to remove for the future the
overt discrimination but continue the effects of this past discrimination against
those employed as temporary full-time prior to the changes brought about in 1975.
Mrs Steel had been employed as temporary full-time since November I96I. From
I September, I975, she became permanent full-time which enabled her to apply
for certain benefits, one of which was the choice of a better 'walk' or delivery
round. These were allocated by seniority. On applying for such a walk, Mrs Steel
was turned down in favour of a younger man who had been employed as
permanent full-time from 9 July, 1973 and who therefore had more seniority,
though he had less continuous service than Mrs Steel.
Her complaint to an Industrial Tribunal alleging that she had been
discriminated against under the SDA was rejected. The EAT disagreed, allowing
the appeal against the Post Office and remitting the case for rehearing to another
Industrial Tribunal. The main issue was whether the Post Office could show that
it was justifiable irrespective of the sex of the person to whom it applied within
section i(i)(b)(ii). Because the Industrial Tribunal had not considered this issue,
no finding of fact had been made on this question and the EAT remitted the case
back to the Industrial Tribunal for further hearing on the point.269
267 [1978] ICR I87-8. The second point must now be read in the light of Vulcan Ltd v Wade
[I978] ICR 8o0.
268 Ibid., I88.
269 The tribunal's conclusion was that the way seniority continued the effects into the present of
past discrimination had not been justified by the Post Office. In particular, other less
exclusionary alternatives were available, [1978] IRLR 198 (IT). The issue of justifiability was
also the main issue in Price No. 2 [1978] IRLR 3 (IT). The tribunal held that the Civil Service
Commission had not proven its justifiability.
360
INSTITUTIONAL
DISCRIMINATION
Two more recent cases, however, have created some doubt whether the
Phillips J approachto 'justifiable'outlined in Steel and reflectedin the Industrial
Tribunal cases of Steel (No. 2)270 and Price (No. 2)271 will survive. In Singh v
Rowntree Mackintosh Ltd.272 the EAT sitting in Glasgow (Lord McDonald
presiding) appearedto take a rather less strict view than that of the EAT in the
Steel case of what was justifiable. The issue in Singh was whether the
respondents had shown that a rule prohibiting beards at their Edinburghfactory
was justifiable. Rowntree Mackintosh Ltd argued that it was justifiable on the
grounds of hygiene. Though the rule was only enforcedin two of their factories
(the other six British factories did not have the rule) Rowntree submitted that the
rule was part of an overalleffort to secure the best possible standardsof hygiene at
these two factories and reflected the autonomy allowed to individual factories on
such matters in the light of local environmental and other conditions. The
Industrial Tribunal dismissed the complaint and the EAT upheld the Industrial
Tribunal'sdecision.
In construing the term 'justifiable'the EAT in Singh ostensibly agreedwith the
EAT in Steel, holding that 'a requirement which is merely convenient will not
suffice. Something more is requiredand it may be that it is properto describe it as
necessary'.273The EAT added the rider, however, '... provided that term is
applied reasonablyand with common sense'.274In applyingthis to the case before
them the EAT in Singh appearedto give considerablymore weight to managerial
considerations than had the EAT in Steel and the Supreme Court in Griggs. It
may be, however, that a major consideration in adopting this approach was the
importanceof hygiene specificallyrather than managerialdiscretionper se. Heavy
emphasis is laid on the context in which the case arose.275
In a subsequentcase, Panesar v The Nestle Co276a very similar set of facts was
before the English EAT and in its judgement the EAT (Slynn J presiding)
explicitly approved the approach taken in Singh, though in appearing to
generalize the Singh test rather than restricting it to cases in which hygiene was
involved, Panesar substituted what might be called, adopting American
terminology, a much more easily satisfied 'rationalrelationship'test for the 'strict
scrutiny'approachof Steel. The Court of Appealupheldthe EAT.277
Since then, however, the EAT appears to have veered back towards the
SteelNo. 2 [1978] IRLR 198 (IT).
Price No. 2 [1978] IRLR 3 (IT).
[ 979] ICR 554.
Ibid., 557Ibid., 557There is a parallel with a number of cases under Title VII in which a more relaxed standard
appeared to be taken where safety issues were involved. See e.g. New York City Transit
Authority v Beazer 99 S Ct 1355 (1979), Boyd v Ozark Airlines Inc 568 F 2d 5o (CA-8 1977),
Spurlock v UnitedAirlines Inc 475 F 2d 216 (CA-Io I972).
276 [ 980] IRLR 60 (EAT).
277 [1980] ICR 144 (CA). See also Ojutiku and Oburoni v Manpower Services Commission, The
Times, 28 May 1982 (CA).
270
271
272
273
274
275
CHRISTOPHER
McCRUDDEN
36i
'necessity' test. In Hurley v Mustoe278the EAT (Browne-WilkinsonJ presiding)
took the Steel case as the primary source of the proper test. 'Necessity' was
stressed. In Chiu v British Aerospace PLC279what was 'necessary'was the test
yet again. Whetherthese presage a returnto the strictertest of Steel remainsto be
seen.
One way of viewing Panesar, therefore, is as an attempt to relax the standard
which respondentshave to meet to satisfy the 'justifiability'requirement.The test
of 'justifiability'on this view involves choice along a spectrumof what is good for
the business enterpriseranging,for example, from necessity arising from the need
to avoid insolvency at one end, to convenience at the other. At what point does the
court or tribunalregardcosts to an individualfirm as too great to bear in carrying
forwardthe aim of racialjustice? In Panesar the EAT may be said to have moved
the point at which justifiability was established closer to the convenience end of
the spectrum.280
An alternative approach, however, is to see in Panesar something more
important,viz a willingnessby the EAT to accept, to a considerablygreaterextent
than had the EAT in Steel, other considerations, in addition to those
considerations relating to the needs of the business enterprise, as capable of
overridingthe value of reducing the exclusion of minority groups from economic
participation.In the United States, limitations on the scope of the 'effects' test
arising from these former considerations have tended to arise mostly in the
senioritycases. 'Business necessity' has largely been confinedto considerationsof
adverse economic impact on a business. The Panesar case gives rise to the
questions: to what extent should considerations other than the needs of the
business enterprise, qua business enterprise, be relevant in considering
'justifiability',and what ought those other considerationsto be?
One way of characterizingthese additional considerations is as an attempt to
temper the 'Gesellshaft'values otherwise dominant in the indirect discrimination
test (such as 'achievement', 'efficiency', 'rationalization'and 'objectivity') with
'Gemeinschaftvalues' (such as preserving tradition, local autonomy, humanistic
values, and the use of ascriptivecharacteristics).281
However, in the one industrial
tribunalcase known to have considered arguments of such a type, this approach
278 [198x] ICR 490 (EAT).
279 [i982] IRLR 56 (EAT).
280 This is the approach to the cases taken in Clark and Powell v Eley (IMI Kynoch Ltd) [1982]
IRLR 13x. The Panesar approachis preferred(p 138).
28I Blau and Duncan describe a Gesellschaft-like employment relationship as follows: 'Objective
criteria of evaluation that are universally accepted increasingly pervade all spheres of life and
displace particularistic standards of diverse ingroups, intuitive judgements, and humanistic
values not susceptible to empirical verification. The growing emphasis on rationality and
efficiency inherent in this spread of universalism finds expression in rapid technological progress
and increasing division of labor and differentiations generally as standards of efficiency are
applied to the performanceof tasks and the allocation of manpower for them'. P. L. Blau and
O. D. Duncan, The American Occupational Structure (John Wiley 1967) 429, adopting F.
Tonnies' terminology in Communityand Association (RKP 1955).
362
INSTITUTIONAL
DISCRIMINATION
was rejected. 'This is not an issue', held the tribunal, 'where generalised
assumptions unsupported by evidence are likely to amount to a justification'.282
Justifiability and validation
There is, however, a common element in all the cases involving justifiability which
I have discussed: the main concern in all these cases was the availability of
alternative methods which had a less adverse impact on women or minority racial
groups and which therefore tipped the balance in favour of the contested condition
being held to be indirectly discriminatory. In few British cases have attempts been
made to press an additional argument which is characteristic of the American
approach to 'business necessity': that unvalidated tests or requirements should, by
virtue of the fact that they are unvalidated, be held not to be justifiable.283
In Britain, the best exposition of the need for both arguments to be considered
is to be found in the report of a joint working party of the Runnymede Trust and
the British Psychological Society:
In general terms, a justifiable selection practice or procedure [should be] realistically
related to the jobs for which applicants are applying. In technical terms this means that the
practice must, at least, have acceptablyhigh validity. For present purposes a practice may
be said to have high validity if the assessment of individuals is as accurate as possible and
enables the employer to draw reliable inferences about the present and/or future
performanceof the individuals assessed. In the case of a selection test, for example, there
will need to be evidence that high scorers do well on the job in question and low scorersdo
not.284
However, a high degree of validity is not sufficient in itself to demonstrate that a
practice is justifiable in use: the relationshipbetween validity and justifiability is complex.
While it can be said that a test which does not have adequatevalidity cannot be justifiable
(it does not tell the employer anything useful about the applicant's subsequent
performanceon the job), the converse does not necessarily apply.
An assessment practice which has high validity is potentiallyjustifiable (and will often
282 Clarke and Powell v Eley (IMI Kynoch Ltd) [ 982] IRLR 131, 139.
283 The CREmay haveretreatedsomewhatfromthis approach.The 1980 draftCodeof Practice
that 'selectiontests shallbe validatedto ensurethat they arerelatedto thejob's
recommended
i.e. an individual'smarkingson the test shouldcorrelatewith abilityto do thejob
requirements,
in question'. In the most recent draft, supra n 211, the words 'validate' and 'correlate'have been
deleted. The equivalent section now reads: 'selection tests should be checked to ensure that they
are related to the job's requirements,i.e. an individual's test markings should measure ability to
do or train for the job in question', (para I.I3(e)). See IRLIB No. 201, p 6.
284 This approach to 'validate' has apparentlybeen heavily influencedby the approachto validation
developed in the United States under Title VII. the Supreme Court developed the Griggs
requirement in Albernarle Paper Co v Moody 422 US 405, 431 (I975). Three steps are
required. The employer must first specify the particular trait or characteristic which the
selection device is being used to identify or measure. The employer must then determine that
that particular trait or characteristic is an important element of work behaviour. Finally, the
employer must demonstrate by 'professionally acceptable methods' that the selection device is
'predictive of or significantly correlated' with the elements of work behaviour identified in the
second step. Craig v County of Los Angeles 626 F 2d 659 (CA-9 1980). See also Uniform
Guidelines on Employee Selection Procedure(1978), supra n 232.
CHRISTOPHER
McCRUDDEN
363
prove to be so), but if it has a large disproportionate impact on an ethnic minority
group . . . then it may not be possible to justify its use. The employer should consider
whether there is an equally valid practice which has less adverse impact (i.e. one which
leads to rejectionof a much smallerproportionof the minority group).
A practice, however, could have a small degree of adverse impact (in the form of, say, a
slightly higher rejection rate for blacks) but be justifiable because it is highly valid and
contributes greatly to the efficiency of the selection process (without having a large
adverse impact).
The validity of a selection practice is determined by the application of professional
techniques and standards. Whether or not a selection procedure of adequate validity is
justifiable is a matter of wider judgment, which should take into account the degree of
adverse impact, if any, on ethnic minority groups.285
British courts are likely, however, to feel hesitant about trying to assess
validity in the sense used in the working party guidelines. Though few cases
of this type have yet been tried, Bohon-Mitchell28 is a good illustration of
the hesitation of tribunals over this issue, unless they are squarely confronted
with the issue and presented with detailed evidence. Counsel for Ms BohonMitchell submitted that the reason given by the Council for Legal Education
for refusing a concession to overseas non-law graduates (that without a home
degree they would not have the required knowledge of 'the English way of
life')287was an untested assumption,as was the suppositionthat one could acquire
this 'knowledge' by attending a British or Irish university or polytechnic.
Evidence was given on behalf of the applicant from a psychologist who also
happened to be a member of the working party. He argued that it would be
possible to devise tests which would indicate the extent of an applicant's
knowledge of the English way of life, providedthat what was to be tested could be
clearly defined. To set up the test would cost a few thousand pounds, it would be
simple to operate and it could be administeredby agents in overseas centres. He
admitted,however, that such tests were not yet widely used in Britain.
The decision of the tribunal on this question can be contrasted sharply with
that of the Runnymede Trust/British Psychological Society guidelines. If that
approach had been followed, the tribunal would have required a number of
questions to have been answered. What does 'knowledge of the English way of
life' mean? Is it necessary to have this knowledge (whatever it is) to become a
barrister? Is this knowledge gained by studying at a university or polytechnic?
This approachwas rejectedby the tribunal:
It is not the functionof a Tribunalto questionthe standardsset for entry into any
trueherewherethe
profession;we are in no way competentto do so, this is particularly
standardshavebeen set by thoseof suchhigh professionalandacademicdistinction.We
285 Discriminating Fairly: A Guide to Fair Selection A Report by the Runnymede Trust-British
Psychological Society Joint Working Party on Employment Assessment and Racial
Discrimination (Runnymede Trust and British Psychological Society, February 1980) 2-3.
286 [9r78] IRLR 525 (IT).
287 Ibid., 528.
364
INSTITUTIONAL
DISCRIMINATION
accept the decision of the Council that all barristersmust have a knowledge of the English
way of life ....
The respondents . . . say that the overseas graduates do not have the
same knowledge of the English way of life as the home graduates and need the extra year
to absorb it. They have adopted the criterion of attendance at a home university because
in their view that is, in the circumstances, the best and the only practicable way of
ensuring that candidateshave this knowledge and so need only take the shortercourse.
We appreciate that the respondents would be reluctant to assess the knowledge of the
English way of life of each candidate by means of tests such as those suggested by Dr
Pearn. They depend for their effectiveness on an accurate definition of the intangible
concepts to be measured and complaints would probablybe made that they were wrongly
defined. The tests would be costly to set up, they have not yet been widely used and
accepted in this country, and with their limited resources we do not think it reasonable
that the Council should be expected to use them.288
Instead, the approach taken was that of assessing whether there were alternative
methods of selecting those who would fulfil this accepted requirement of
knowledge of the 'English way of life'. Since there was an alternative available, the
condition was not 'justified' and a finding of indirect discrimination resulted.
The statutory agencies (the EOC and the CRE) are more likely to regard
themselves as equipped to examine the validity issue and in the recent formal
investigation into F Broomfield Ltd289 the CRE held a recruitment practice of the
company to be indirectly discriminatory, rejecting a claim to justifiability at least
partly on the grounds of lack of validation. The Commission was satisfied that in
two departments recruitment by personal recommendation was a discriminatory
practice. The Company had argued that the practice was justifiable since, they
claimed, in one department it produced more reliable and trustworthy applicants
and in another it produced continuity of service. The Commission pointed out
however that suitable applicants were available from other sources. But, in
In our view,
addition, 'No evidence was produced to support these claims....
therefore, the Company had failed to show that the requirement was in fact
necessary for the effective performance of the work.'290
In only one appellate court has the validity approach been in issue.29' In Ojutiku
both complainantshad come
and Oburoni v ManpowerServices Commission,292
to Britain from West Africa in the I96os. They applied and were accepted by a
polytechnic for a course leading to a Diploma in Management Studies. In order to
finance their courses, they then applied to the Manpower Services Commission
(MSC) for a grant under their Training Opportunities Scheme (TOPS). Amongst
288 Ibid., 530-I.
289 CRE, Formal Investigation Report:F BroomfieldLtd (CRE I980).
290 Ibid., para 3.
291 But cf the use of validation type of test in Jenkins v Kingsgate (Clothing Productions) Ltd
[1981] ICR 715 (EAT) under Equal Pay Act 1970, section I(3). In Ghaffer v Council of Legal
Education (CA(CO) unreported 30 June, 9I80) the Court of Appeal, obiter, appears to have
approved an industrial tribunal requiring a 'genuine appraisal' to have been made by a
respondent of a challengedcondition or requirement.
292 [1981] ICR 515 (EAT), affirmed,The Times, 28 May 1982 (CA).
CHRISTOPHER
McCRUDDEN
365
the criteriaused by the MSC for selecting people for TOPS sponsorshipon such a
course was that applicants should have already had experience in a post of
commercial, administrative, professional or industrial responsibility. Since the
applicantslacked managementexperience,their applicationsfor sponsorshipwere
rejected.They contended that the MSC's requirementof previous experiencewas
indirectlydiscriminatory.
On the justifiability issue, the MSC stated that, without management
experience, even if they took the course their prospects of obtaining employment
would not be enhanced. Given that, they submitted, the refusal of a grant was
justifiable. Counsel for the applicantsarguedthat there must be objective, external
and independent evidence of this. He argued, in effect, that the requirementbe
validated.
The EAT took a middle course between demandingvalidity to be demonstrated
as requiredby the working party report on the one hand, and, on the other, being
satisfied with the mere ipse dixit of the MSC. 'There must', held the EAT, 'be
material upon which the Industrial Tribunal can work, and, if evidence is not
called to establish the facts to show the justification, then respondentswill run the
But it was not 'an absolute rule that there
risk of their defences being rejected.'293
must be externalor independentevidence-although, in many cases, a respondent
will not be able to prove his case unless he has such material.'294Applying this
approach to the issue before it the EAT held that the Industrial Tribunal was
entitled to come to the conclusion that the MSC was justified in refusing a grant
on the grounds they did.
It seemsto us thatthe evidenceof [theprincipaltrainingadvisorof the MSC],basedupon
investigationof the figures,baseduponhis own experienceovermanyyearsin industryas
well as his experiencewith the [MSC],andthe opinionsof employerswith manyof whom
hehad spokenaboutthe problemsprovided[sufficient]evidence'.295
It was 'substantiallya question of fact for the IndustrialTribunal'.296
INDIRECT DISCRIMINATION AND THE REDUCTION OF
INSTITUTIONAL DISCRIMINATION
Despite its potential the adoption of an indirect discriminationtest in the RRA
1976 appears, as yet, to have had little effect. Serious considerationof the issues
raisedby it appearsto have been minimal,as has any realreductionof exclusionary
293 Ibid., 520.
294 Ibid., 521. Ghaffer v Council of Legal Education, supra n 291, the Court of Appeal held that,
where justifiability was in issue, '[i]t cannot possibly be the duty of an IndustrialTribunal to ...
insist on some independent person giving evidence before they accept the evidence of [one of the
members of the respondent body] ... simply because he is a member of [that body], one of the
parties to the dispute'.
295 Ibid., 520-1.
296 Ibid., 520. Industrial tribunals may well be becoming more willing to accept such arguments,
see, e.g. Clarke and Powell v Eley (IMI Kynoch Ltd) [ 982] IRLR 13I.
366
INSTITUTIONAL
DISCRIMINATION
practices on the demand side.297The changes in the substanceof the law have not
been reflected in legal or social practices.298Even in terms of enforcement, the
ability on the part of the enforcersto be able to stress the unintentionalnature of
much indirect discrimination, and thus lessen respondent opposition to
investigations, has not been successful. Respondentssubjectto CRE investigation,
for example, seldom seem to distinguish between direct and indirect
discrimination in deciding upon the level of indignation and obstruction to
adopt.299
The fault is partly that of the Government and Parliament responsible for the
enactment of the RRA 1976. There are important respects in which the
implications of the change in the meaning of discrimination have not been carried
through. The enforcement and remedial provisions of the Act specifically
distinguish between direct and indirect discrimination in ways which undermine
the rationales for the adoption of the new conceptual meaning.300 Secondly,
whereas the Griggs test was developed in the United States alongside a number of
procedural and remedial adaptations of the legal process which help to
accommodate that process to its new redistributive role, equivalent adaptations to
the British legal process have yet to be made.
Most importantly, however, there is a lack of understanding of the strategy
among some of those best placed to bring it to public awareness,301 and a
consequent absence both of change, and even of cases.30" The report by the
297 No comprehensive survey of changes has been made. What evidence there is suggests that the
estimate in the text is correct. For lack of effect of the indirect discrimination provision of the
Sex Discrimination Act 1975, see M. W. Small, P. Glucklich and M. Povall, Equal Pay and
OpportunitiesResearch Paper No. 20 (DE i98I) and M. Snell, i Feminist Review 37, 50 (1979).
298 This may be changing. See e.g. the statement of Home Secretary announcing that entrance tests
for the police would be reviewed for 'cultural bias', Weekly Hansard Issue No. 1225,
io December, I98i, col 'IOO. The idea of 'indirect discrimination' also appears to be
influencing the interpretation of other legislation, cf the approach to the 'material difference'
defence (Equal Pay Act 1970, s I(3)) in Jenkins v Kingsgate (Clothing Productions) Ltd [198I]
IRLR 388 (EAT) and Albion Shipping Agency v Arnold [i98i] IRLR 525 (EAT).
299 See House of Commons Home Affairs Committee, Session I981-82, Commission for Racial
Equality, Report(HMSO i98i) HC 46-I.
300 In addition to s 28, supra 355, different remedies are available for direct and indirect
discrimination. In the case of indirect discrimination, no award of damages can be made if the
respondent proves that the requirement or condition in question was not applied with the
intention of treating the claimant unfavourablyon racial grounds, s 57(3).
301 Cf the unfavourablecomments by the Prime Minister on an industrial tribunal case of indirect
discrimination (thought to be Isa and Rashid v BL Cars, noted in IRLIB No. I8o, 10 March,
1981, iI), Weekly Hansard Issue No. 1192, 20 January, i981, col I46.
302 From i July, 1978 to 30 June, 1979 there were only 35 applications alleging indirect
discrimination lodged with industrial tribunals, amounting to 9.6 per cent of total applications
alleging racial discrimination in employment, DE Gazette December 1979, 1238. Between
I July, I979 and 30 June, I980 both the number and percentage of indirect discrimination
allegations fell, with only 33 such applications amounting to 7.7 per cent of employment
discriminations, DE Gazette October I980, 124. In the equivalent period 1980-I981 such
applications rose to only 68 (20.5 per cent) 89 EmploymentGazette 431 (I981 No. IO).
CHRISTOPHER
McCRUDDEN
367
House of Commons Home Affairs Committee on racial disadvantage303and Lord
Scarman's report304are key illustrations of either a lack of understandingof the
role that the legal process might play in eradicating exclusionary practices or,
more likely, of an unwillingness to advocate the effective development of such a
role.
The potential significanceof the new meaning of discriminationhas, in Britain,
been grossly underestimated. Most observers assume that, in dealing with
inequalities between black and white, the legal system should be tied still to the
more traditional role of eradicating prejudiceddiscrimination. One of the most
disappointing aspects of the recent reports is their failure to consider the wider
possibilities. A much more instrumental, redistributive role has now become
possible. We should not ignore it in future.
A final caveat may be necessary. My advocacy of the more widespread use of
the indirect discrimination provision is tempered by a recognition that to place
complete reliance on such a strategy would be misguided. The considerable
limitations in the proceduraland remedialcontext in which the idea is placed are
one set of restrictions on its usefulness. There are other limitations too on the
extent to which the eradication of indirect discriminationcan or should provide
the basis for a complete strategy, for example where it would be ineffective or
undesirable.Nothing I have written should be taken as necessarilyarguingagainst
other demand side approaches,or increasedfunding of supply side policies. What
is necessary is a greater realisation of the range of different policies available,
includingthe greateruse of the indirectdiscriminationprovision,and the development of a programmewhich uses these in the best possible mix.
303 Supra n 248. Since this report the Select Committee in its Report of an investigation of the
CRE, supra n 299, has shown a considerably more radical view of the possibilities of legal
action. Nevertheless even in this Report there is little understandingshown of the use of the law
to counter the institutional discrimination discussed in this article.
304 Supra n 4.