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Why the Law on Indirect Discrimination is so Vital for Equality

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About The Author

Annie Fendrich (Guest Contributor)

Annie Fendrich is a Guest Writer for Keep Calm Talk Law

In February of last year, BBC News reported that Ruby Williams, a pupil at the Urswick school in east London had received an out-of-court settlement after challenging the school’s uniform policy under the Equality Act 2010.  She had been sent home after being told that she had breached the policy, which specified that ‘afro style hair, including buns, must be of reasonable size and length’.  The school has since changed the hair policy on its website after a legally binding agreement with the Equality and Human Rights Commission.

rister Jon Holbrook objected to this outcome.  ‘The Equality Act, he tweeted, ‘undermines school discipline by empowering the stroppy teenager of colour’.  This tweet – which went beyond mere criticism of the law and its application to deliver deeply unpleasant ‘know your place’ undertones – was followed by an online article published in January this year.  In it, Holbrook discusses not only Williams’ case but others in which the Equality Act has been used to challenge school uniform policies banning hairstyles such as cornrows and dreadlocks.  He argues that these policies:

…are not instances of racism: the schools did not discriminate against the children because of their race.  The schools acted against the children because they were breaking a school policy.  The policies were applied equally to all schoolchildren regardless of their race.

Further, Holbrook entirely rejects the validity of indirect discrimination as a concept, denying it constitutes real discrimination at all. Elsewhere in the article, he is critical of indirect racism for affording legal protection to the customs and norms of racial minorities and ‘paving the way for multiculturalism’. 

Whilst Holbrook’s tweet attracted significant criticism, and ultimately led to his expulsion from chambers, his comments highlight the urgent need for greater understanding about the Equality Act, its application, and the universally recognised principles it is designed to protect.

It should be noted at the outset that Williams’ case is not accurately described as one in which a school rule applied to all school children – either equally or at all.  The Urswick school’s reference to ‘afro style hair’ was almost certainly intended to apply only to its black and mixed black students.  It therefore appears to have subjected only its students of black origin to a rule directing the length and size of their hair.  If so, this is a clear example of direct racial discrimination: that is, less favourable treatment on grounds of race.

But even if a rule is equally applied to all students, that doesn’t mean it is not discriminatory.  This is what the law on indirect discrimination was intended to recognise.  

Indirect Discrimination

Indirect discrimination is defined in section 19 of the Equality Act.  It occurs when a policy applies, on the face of it, to everyone equally, however in practice is such that some individuals are placed at a particular disadvantage by virtue of sharing a characteristic that is protected by the Equality Act.  (A list of all protected characteristics can be found in section 4 of the Equality Act, and includes sex, race, age, and gender reassignment).  

To take an example, a law that bans same-sex marriage applies to everyone equally in that nobody of any sexual orientation is permitted to marry somebody of the same sex.  Such a law, of course, puts somebody who is gay at a particular disadvantage in that they are prohibited from marrying the person that they choose, whereas a straight person is not.

‘Equal Treatment’ vs. ‘The Same Treatment’

The law on indirect discrimination reflects the well-established principle that ‘equal treatment’ cannot necessarily be read as: ‘the same treatment’.  Equality does not simply mean requiring everyone to follow the same rules.  It means designing those rules in a manner that treats all those who will be subject to them as of equal social and moral value.  Achieving equality might be thought of in terms of a Rawlsian ‘original position behind a veil of ignorance’ approach – what hair policy would we devise if deprived of prior knowledge of what our own hair type was going to be?

In considering whether, in treating all people the same, we have in fact treated them equally (i.e. in a non-discriminatory way), it is useful to ask: ‘Equal with respect to which principle?’.  Suppose, for example, that we value the principle that a child’s access to an education should not be impeded because of a natural physical characteristic they possess (‘principle P’).  Suppose also that a school bans all students from coming into school with ‘afro style hair’ (to use the Urswick school’s phrase).  On Holbrook’s logic, there is no discrimination – all students are subject to the same rule and white students, for example, are prohibited from styling their hair to mimic an afro texture.  But those students with naturally afro-textured hair (i.e. the black and mixed black students) are required to engage in potentially time-consuming and expensive hair styling treatments or lose their access to education.  Principle P is not being applied equally to those students.  Nor, for that matter, is the principle that children should not be subjected to standards of appearance invented to help sustain a racial hierarchy, and thereby made to feel that there is something inherently ‘unpresentable’ about their natural hair texture.

The idea that true equality means equality with respect to the most fundamental of values is found in a number of international human rights instruments.  For example, the prohibition on discrimination enshrined in Article 14 of the European Convention on Human Rights is not a free-standing right, but a requirement that the other Convention rights be applied equally to all.  Article 1 of the UN Universal Declaration of Human Rights begins: ‘All human beings are born free and equal in dignity and rights’ (emphasis added).     

Therefore, the students challenging school policies that restrict or ban afro hair, cornrows, or dreadlocks are not, as Holbrook claims, ‘seeking special treatment’.  What they are seeking is a type of equality that is denied to them under those policies: equal respect for, and acceptance of, their natural hair texture and the hairstyles which protect it as well as the traditions from which those hairstyles originated.  Had the schools designed their policies as though all students had equal social and moral value, the policies under challenge would never have been adopted in the first place.  

Equality, Diversity and Minority Rights in International Law

The link between achieving equality and embracing diversity is well-recognised in international human rights law.  Article 1 of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities requires states to adopt appropriate legislative and other measures to: ‘…protect the existence and the national or ethnic, cultural, religious and linguistic identity of minorities within their respective territories and shall encourage conditions for the promotion of that identity’.  Article 3(2) provides: ‘No disadvantage shall result for any person belonging to a minority as the consequence of the exercise or non-exercise of the rights set forth in the present Declaration'.  The UN’s accompanying booklet to the Declaration observes that: ‘Ending discrimination against minorities requires us to protect and embrace diversity…’.

Leaving aside the subject of the merits of multiculturalism, those who oppose it must confront the fact that advocating assimilation necessarily means prioritising one culture and requiring all others to adapt to it.  This is not equality according to any common-sense understanding of the word.  What it amounts to is a society in which all cultures are equal, but some are more equal than others.

Inequality: Denial vs. Justification

It is therefore misconceived to criticise the Equality Act on the basis that it recognises that rules applicable to everyone can create a particular disadvantage for some.  But in any event, the Equality Act contains a mechanism that ensures that not every rule of this type will be held to be indirect discrimination and thus unlawful.  A policy will only meet the legal definition of indirect discrimination if it cannot be shown to be a proportionate means of achieving a legitimate aim (section 19(2)(d)).  There is therefore nothing about the Equality Act as drafted which prevents competing interests from being balanced appropriately.  Where the courts have found policies to be indirectly discriminatory, it can be inferred that proportionality arguments were either not advanced or not accepted.  The latter is what happened in the case of G [2011] EWHC 1452 (Admin), in which a school policy banning cornrows was successfully challenged.  The High Court was ‘not persuaded that the indirect discrimination which the prohibition on cornrows produces [was] justified’ (at [51]).  Holbrook cites G as a case in which the policy was not an instance of racism.  But what G in fact illustrates is this: rather than deny that the school policies in question do place certain students at a particular disadvantage, those defending the policies must accept that what they are really seeking to do is justify that disadvantage.

Holbrook’s article claims that the schools in these cases were simply ‘imposing a socially desirable norm’.  But a rule which claims to impose a ‘socially desirable norm’ yet defines black hair and hairstyles as contrary to what is ‘socially desirable’ has failed to adhere to the most basic definition of racial equality.  In other words, it is racist.

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Tagged: Equality

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