What is Race Discrimination

The RRA sets out the circumstances in which discrimination on the grounds of race is unlawful. It defines four types of discrimination: direct discrimination, indirect discrimination, victimisation and harassment.

Direct Race Discrimination

Direct discrimination occurs when a person treats you less favourably on racial grounds than he or she would treat, or treats, some other person.

The RRA defines ‘racial grounds’ as being on the grounds of colour, race, nationality or ethnic or national origins. Most people think of race discrimination as being less favourable treatment on the grounds of colour or race. However, discrimination on the grounds of nationality, ethnic or national origins is equally unlawful. Thus if a workplace contains Afro-Caribbean and African employees and the employer treats the African employees less favourably by allocating them the menial or less interesting work, that could amount to less favourable treatment on racial grounds. Similarly, if a Japanese bank offered its services to Korean customers on less favourable terms than those offered to other customers the bank’s actions could constitute less favourable treatment on racial grounds.

It is equally unlawful to treat someone less favourably on the grounds of another person’s race, so that it is discrimination to treat a white employee less favourably because he or she has a black partner. Similarly, if a white employee were dismissed for refusing to obey his or her employer’s instructions to refuse to serve Asian customers, he or she would have a direct discrimination claim under the RRA.

Sometimes direct discrimination is very obvious, but it can be more subtle. The following are all examples of direct discrimination:

Racist name-calling or abuse.
Refusing to give someone a job or promote him or her because of stereotyped ideas about his or her abilities or conduct, based on his or her race.
Refusing to give someone a job or promotion on the grounds that customers will not like being served by a person of that race.
A pub or club operating quotas to prevent black members or customers from exceeding a specific number or proportion.

Generally, you need to point to someone compared to whom you have been treated less favourably, called a ‘comparator’. However, if you cannot do this, the court or tribunal considering your case should construct a hypothetical comparator for you.

The intention and motive of the discriminator are irrelevant to the question of whether a person has been subject to unlawful direct discrimination on the grounds of race. Moreover, race does not need to be the sole or even the principal reason for the way someone is treated for the treatment to be discriminatory. Discrimination can be made out if race is a contributing cause in that it is a "significant influence" on the treatment in question.

Segregation on racial grounds is defined by the RRA as a particular type of direct discrimination. Providing separate washing facilities for white and Asian employees, even if the facilities are of the same standard, might be an example of segregation on racial grounds. Similarly, only employing ethnic minorities in ‘back room’ roles where they have no contact with the public but allowing others a full range of roles and duties might be an example of segregation on racial grounds.

Indirect Race Discrimination

Indirect discrimination aims to challenge practices and procedures which on their face apply in the same way to everyone but which in practice have different, unfair effects on certain groups.

Indirect race discrimination is defined in the employment context and several others as being the application of a specific provision, criterion or practice, which places a racial group at a disadvantage, in a way that cannot be justified. You can only bring a complaint if you suffer the disadvantage yourself. The following are examples of indirect race discrimination:

A policy that requires all employees to be clean-shaven, as this would put Sikhs in general at a disadvantage.
A practice of excluding job applicants who live in a certain area of a city where that area is occupied by a higher proportion of ethnic minority people as this would put ethnic minority candidates at a disadvantage.

U nlike direct discrimination, indirect discrimination can be justified. If the person doing the discrimination can show that the provision, criteria or practice is objectively justified on grounds other than race, then the discrimination will not be unlawful.

There is another, older, legal definition of indirect discrimination which refers to a ‘condition or requirement’ rather than a ‘provision, criterion or practice’. Although the new definition applies to claims of discrimination in employment, education, services and certain public functions such as healthcare, the old definition will continue to apply to other sorts of discrimination, which makes the law in this area complex. Therefore, if you consider that you have been indirectly discriminated against you should consider seeking specialist help.

Victimisation

Victimisation occurs when one person treats you less favourably than he or she treats, or would treat, someone else in those particular circumstances because you have done any of the following 'protected acts':

Alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of the RRA.
Brought proceedings against the discriminator or any other person under the RRA.
Given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the RRA.
Otherwise done anything under or by reference to the RRA in relation to the discriminator or any other person.

The same also applies if the discriminator knows that you intend to do any of those things or suspects that you have done, or intend to do, any of them.

If bringing a claim, it is not necessary for you to show that the alleged discriminator was consciously motivated by the fact that you had done a protected act.

Allegations of discrimination must be made in good faith in order to be protected by the victimisation provisions of the RRA. An example of a situation in which a claim of victimisation might arise is where an employee accuses his or her boss of discriminating against him or her on the grounds of race and as a result of the complaint is demoted or disciplined. Alternatively, if a white colleague suggests that a manager has treated a black employee unfairly and then finds him or herself ostracised or subject to unwarranted criticism from that manager or his employer, this too might amount to unlawful victimisation.

Racial Harassment

Regulations introduced in 2003 amended the RRA to make it unlawful for an individual to harass you on racial grounds at work, in education, services and some other areas such as healthcare. Harassment is defined as unwanted conduct which has the purpose or effect of violating your dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for you, on grounds of race or ethnic or national origins. This should be a useful tool for those who have been subjected to repeated bullying at work, as it is a more straightforward definition than that of direct discrimination. It should, however, be noted that, for technical reasons, harassment is only unlawful if it is on grounds of race or ethnic or national origins and not nationality or colour.

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