Racial discrimination

What is race discrimination?

This is when you are treated differently because of your race in one of the situations covered by the Equality Act.

The treatment could be a one-off action or as a result of a rule or policy based on race. It doesn’t have to be intentional to be unlawful.

There are some circumstances when being treated differently due to race is lawful, explained below.

What the Equality Act says about race discrimination

The Equality Act 2010 says you must not be discriminated against because of your race. 

In the Equality Act, race can mean your colour, or your nationality (including your citizenship). It can also mean your ethnic or national origins, which may not be the same as your current nationality. For example, you may have Chinese national origins and be living in Britain with a British passport.

Race also covers ethnic and racial groups. This means a group of people who all share the same protected characteristic of ethnicity or race. 

A racial group can be made up of two or more distinct racial groups, for example black Britons, British Asians, British Sikhs, British Jews, Romany Gypsies and Irish Travellers.

You may be discriminated against because of one or more aspects of your race, for example people born in Britain to Jamaican parents could be discriminated against because they are British citizens, or because of their Jamaican national origins.

Different types of race discrimination

There are four main types of race discrimination.

Direct discrimination

This happens when someone treats you worse than another person in a similar situation because of your race. For example:

• if a letting agency would not let a flat to you because of your race, this would be direct race discrimination

Indirect discrimination

This happens when an organisation has a particular policy or way of working that puts people of your racial group at a disadvantage. For example:

• a hairdresser refuses to employ stylists that cover their own hair, this would put any Muslim women or Sikh men who cover their hair at a disadvantage when applying for a position as a stylist

Sometimes indirect race discrimination can be permitted if the organisation or employer is able to show to show that there is a good reason for the discrimination. This is known as objective justification. For example:

• a Somalian asylum seeker tries to open a bank account but the bank states that in order to be eligible you need to have been resident in the UK for 12 months and have a permanent address. The Somalian man is not able to open a bank account. The bank would need to prove that its policy was necessary for business reasons (such as to prevent fraud) and that there was no practical alternative

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Harassment

Harassment occurs when someone makes you feel humiliated, offended or degraded. For example:

• a young British Asian man at work keeps being called a racist name by colleagues. His colleagues say it is just banter, but the employee is insulted and offended by it

Harassment can never be justified. However, if an organisation or employer can show it did everything it could to prevent people who work for it from behaving like that, you will not be able to make a claim for harassment against it, although you could make a claim against the harasser.

Victimisation

This is when you are treated badly because you have made a complaint of race related discrimination under the Equality Act. It can also occur if you are supporting someone who has made a complaint of race related discrimination. For example:

• the young man in the example above wants to make a formal complaint about his treatment. His manager threatens to sack him unless he drops the complaint

Circumstances when being treated differently due to race is lawful

A difference in treatment may be lawful in employment situations if:

• belonging to a particular race is essential for the job. This is called an occupational requirement. For example, an organisation wants to recruit a support worker for a domestic violence advice service for South Asian women. The organisation can say that it only wants to employ someone with South Asian origins
• an organisation is taking positive action to encourage or develop people in a racial group that is under-represented or disadvantaged in a role or activity. For example, a broadcaster gets hardly any applicants for its graduate recruitment programme from Black Caribbean candidates. It sets up a work experience and mentoring programme for Black Caribbean students to encourage them into the industry

• Stereotyping

  In addition, people may experience racial discrimination because of stereotyping. Stereotyping typically involves attributing the same characteristics to all members of a group, regardless of individual differences.  It is often based on misconceptions, incomplete information and/or false generalizations.  In most cases, stereotypes assume negative characteristics about a group.  Even those who are well meaning and not overtly biased can nevertheless stereotype.

  Racial profiling

  Racial profiling is a form of stereotyping that has particular implications for racialized persons. The Commission has defined racial profiling as any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, colour, ethnicity, ancestry, religion or place of origin rather than on reasonable suspicion, to single out an individual for greater scrutiny or different treatment.  Race only needs to be a factor in the conduct alleged to constitute profiling.

  Some considerations that help determine whether racial profiling occurred include:

  • Statements that indicate stereotyping or prejudice such as racial comments;
  • A non-existent, contradictory or changing explanation for why someone was targeted;
  • The situation unfolded differently than if the person had been White; or
  • Deviations from normal practices or an unprofessional manner.

  Subtle forms of racial discrimination

  Subtle and subversive discrimination has also been identified as one of the most common ways racialized people experience unequal treatment. Subtle forms of discrimination can often only be detected upon examining all of the circumstances. As well, contrasting how a racialized person was treated with how others were treated in a comparable situation, or looking for patterns of behaviour will help to determine whether subtle discrimination was at play.  While comments about race may sometimes be made, this is not necessary for a finding that subtle racial discrimination has occurred.  Racial discrimination need only be one of the reasons for the treatment received.

  There are many examples of subtle forms of racial discrimination.  In employment, it can take the form of failing to hire, train, mentor or promote a racialized person. Racialized persons may find themselves subjected to excessive performance monitoring or may be more seriously blamed for a common mistake. And, normal differences of opinion or failing to get along with a co-worker may be treated as more serious when a racialized person is involved.

  Subtle racial discrimination can occur in a variety of other contexts as well. In housing, racialized persons may be turned away as tenants, or may not be granted equal access to maintenance and repairs.  Issues also arise in services and facilities including malls, restaurants, movie theatres, education services and healthcare services.