12 minute read
RL A Public Health Approach to Equality Law
A PUBLIC HEALTH APPROACH TO EQUALITY LAW
From a lecture delivered by Master Iyiola Solanke via webinar on Monday 5 October 2020.
The title of this lecture is A Public Health Approach to Equality Law, and what I hope to do is have you think about whether it’s possible to take a more holistic approach to tackling discrimination that includes the law but also goes beyond it. My format for doing that is to think about how public health specialists go about tackling viruses.
Thinking about what equality law is for, I’ll highlight a couple of academic ideas. Deborah Helmond, an American academic, argues that the purpose of equality law is to tackle demeaning distinctions. One of the examples that she gives is that a sign that says ‘men only’ is not demeaning when we find it on a bathroom door, but when we see that on a courtroom door, that is demeaning.
Tarun Khaitan, a British academic, emphasises a different purpose for equality law. His argument is that the purpose of equality law is to protect autonomy, ensuring that people have the freedom to make the choices that are best for them.
What I’m going to suggest is that equality law goes beyond that, actually, to tackle stigmatisation. And in tackling stigmatisation, what I’m trying to emphasise is social power. So, equality law is not just there to enable individuals to enjoy their rights, but equality law also should exist to ensure that social power cannot be used to dehumanise people, and therefore make them susceptible to discrimination.
Moving on to the evolution of the use of law to tackle discrimination in England and Wales. There were many attempts in the 1950s to introduce Private Members’ bills to tackle what was then called ‘the colour bar’, but none of these were successful because there was a reluctance to use law to tread upon common law rights. This only really changed with the adoption of the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) in 1964. This provides a backdrop to the first anti-discrimination law – the Race Relations Act 1965 – in England and Wales. That was replaced in 1968 by a second Act, which specifically prohibited racial discrimination in employment. In 1976, a more substantial Act was introduced, which was then brought into the Equality Act 2010. We now have a significant and mature framework of law to tackle racial discrimination. But I want to think about progress – I’m going to stay focused on race – and about what the impact has been of these bodies, these statutes and the body of case law over the last 50 years. In 2017, there were a number of surveys and investigations into race and racism in Britain. One of those was the McGregor-Smith report, which looked at race and employment – it concluded that there continued to be structural and historical bias in the labour market.
A second report was the survey by David Lammy, of the criminal justice system. His conclusion was that there was still a significant over-representation in all areas of the criminal justice system of young black men. The shocking statistic provided in 2003 by the then Commission for Racial Equality, that that there are more young black men in prison in this country than at university, seems to still be accurate.
Then there was the race audit conducted by the Cabinet – one of its conclusions was that white people are still much more likely to own their own homes and have jobs than people from ethnic minorities. Finally, looking at academia, one report by the Trade Union Congress on racism said that more than a third of all black and minority ethnic workers in the sector report bullying, abuse or racial discrimination by their employer.
My next question is why there has been such limited progress. This was really the question that took me into thinking about the public health approach. My conclusion as to why there has been limited progress was that this can be traced to the individualism that is inherent in the legal approach to tackle racial discrimination and discrimination in general. I argue that our legal approach to discrimination is very much focused on individual attributes – either our sex or our skin colour or our age, our religious beliefs, et cetera. One of the things that the law has, in the past, forced individuals to do is choose between one attribute or the other. I think that is one weakness of the current approach to tackling discrimination.
The second weakness is the way in which the law creates, or focuses on, an individual victim or complainant, which imposes a significant burden on that person who has to find their own resources to bring a case against an organisation. Having done that, even if they win, it’s questionable what they do win. Because often you’ll find those who bring cases of discrimination may have to leave their job and may find it difficult to find another.
The third limitation is the fact that when an individual does bring a case, if they are successful, then actually they are only successful against a single organisation or a single individual, but that doesn’t stop the individual or the organisation from treating another person the same way. To summarise, a significant reason for the limited progress of our equality laws is this individualism that is inherent in the way in which we tackle discrimination.
My suggestion is that we think about discrimination in a more holistic way. And the analogy I make is that we should think about discrimination as a virus, for example, COVID-19. I’m not going to try to convince you that racism is, or discrimination is, exactly like a virus, but some similarities are that both discrimination and COVID-19 are invisible. Both can maim and kill, and both can leave survivors with effects that stay with them for the rest of their lives.
If we think about discrimination as a virus, then we can start to think about the way in which we tackled discrimination from a public health approach. This would help us to take a more holistic approach, so we would not just focus on action at the individual level, but we would also think about taking action more at the social level, or at an environmental level. One advantage of doing that is that then we would think about positive action as a norm rather than as an exception, and we would then be in a better position to undertake systemic change.
This idea of tackling discrimination as a virus can be broken down into taking action to break the chain of infection. If we start with the infectious agent – it can be bacteria, it can be a parasite, or it can be a virus. The infectious agent is the thing that causes the illness, and the action that needs to be taken to tackle the infectious agent begins with diagnosis. In order to break the chain of infection, public health professionals then need to identify the reservoir, which is the place where the infectious agent grows. This can be a surface, it can be in animals, it can be in water, it can be in soil, or it can be in people. The action that is needed to break the chain of infection in relation to the reservoir is mainly cleaning.
In this chain of infection, the portal of exit follows the reservoir: this refers to the way in which the virus leaves the reservoir. Exit can be through open wounds, through body fluids, or through droplets. The action that would need to be taken to prevent the virus from leaving the reservoir can include improving hand hygiene, it can include wearing face masks, or it can include better waste control.
The next link in the chain of infection is thinking about the mode of transmission – this can include contact with surfaces, things that we eat, or even indeed things that we inhale. The action that we would need to break the chain would again include hand hygiene, protective equipment, improved food safety, improved cleanliness, sterilisation, isolation and also social distancing.
We then have the portal of entry, which can be broken skin, it can be the nose, and it can be mucus. The action to break the chain in relation to the portal of entry is undertaking again hand hygiene, or first aid, or maintaining a social distance of two metres. Finally, public health professionals try to identify the susceptible hosts. The susceptible host is any person who has a prevalence to contract this infection. And the action that is taken there would be immunisation, or even simply education.
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I’m not suggesting that all these types of actions would be things that we can undertake to tackle discrimination. What I’m suggesting is that, by analogy, we can think in a more nuanced and detailed way about how we tackle discrimination. What, for example, would the infectious agent be in relation to discrimination? Well, it could be either words or it could be images.
Thinking about the reservoir or the place where the virus grows: what could that be in relation to discrimination? It could be an educational curriculum or television scheduling that contains little or no contribution from black and minority ethnic experts or scholars. The portal of exit in relation to discrimination could be practices and policies. If we want to think about the way in which the infection spreads in relation to discrimination, this could be either directly or indirectly from person to person or via social media. If we think about the portal of entry, it could be visual, such as the prevalence of images of black men as criminals, rather than as judges, entrepreneurs or astronauts. And if we think about the susceptible hosts – this could be individuals who haven’t conducted any quality training, or it could be organisations that haven’t introduced any anti-racist or equality policies.
What thinking about discrimination along the lines of a chain of intervention helps us to do is diagnose. But once we’ve diagnosed discrimination, we then need to think about the action that we need to take. I want to think about what that would mean for legal educators and for legal practitioners.
With legal educators, action that could be taken includes things such as widening participation. It could also include thinking about ways in which the curriculum could be decolonised. It could also include taking action to make the organisational vision more inclusive.
In relation to legal practitioners, we could think more about the way in which we can use existing legal tools. The Equality Act does include provisions that would help us to take a more holistic approach to tackling discrimination. We simply need to emphasise them more. At the moment, positive action is seen as an exception to the more individual remedy for discrimination. But if we think about discrimination as a virus, then undertaking more collective action would become a norm.
The Equality Act does include provisions that would help us to take a more holistic approach to tackling discrimination. We simply need to emphasise them more. At the moment, positive action is seen as an exception to the more individual remedy for discrimination. But if we think about discrimination as a virus, then undertaking more collective action would become a norm.
Section 158 of the Equality Act provides a general framework for positive action. It allows a person, if they reasonably think that persons sharing a protected characteristic suffer a disadvantage, or that persons sharing a protected characteristic have different needs, or that persons sharing a protected characteristic have a disproportionately low rate of participation in an activity, to take proportionate action to enable or encourage persons with the protected characteristic to overcome the disadvantage or to meet those different needs, or to enable and encourage persons sharing a protected characteristic to participate.
And section 159 says that if a person, an employer, reasonably thinks that persons sharing a protected characteristic suffer a disadvantage connected to the characteristics or have a disproportionately low participation in an activity, then the Equality Act allows the person, the employer, to take action to overcome that disadvantage, minimise that disadvantage, or enable greater participation in that activity. So, there is already scope for taking a public health approach to tackling discrimination in the Equality Act.
Then there is the public sector equality duty in section 149 of the Equality Act. There are three sections to this obligation to have due regard. I want to highlight the third, which is the obligation to foster good relations between persons who share a relevant protected characteristic and persons without that characteristic. This could be used to tackle discrimination in the reservoir in my analogy, the place where the virus grows. This could be used to enable more radical action in relation to developing educational curricula, for example, or developing programming schedules, or developing a more diversity in the media.
A suggestion for legal reform is that more detailed guidance is given in relation to fostering good relations. Whereas it says that involving due regard to the need to advance equality of opportunity involves the need to remove or minimise disadvantages, that could be replaced by a need to remove and minimise stereotypes in order to foster good relations.
To summarise, from a public health approach there are four key lessons for tackling discrimination. The first would require identification of the chain of infection, and then the determination of action to break the chain. The second would require a genuine commitment to change. The third would be the need to create a multilevel and unified action plan. And the fourth would be to ensure coordination and cooperation with international bodies.
The ideas that I’ve discussed are drawn from a book I published in 2017, Discrimination Stigma (Hart), if you want to read some more about these ideas.
Professor Iyiola Solanke
Dean for EDI, University of Leeds, Chair in EU Law and Social Justice, University of Leeds School of Law and Academic Bencher
For the full video recording of this lecture: innertermple.org.uk/lectures
