![]() ![]() First, the paper does not deal with racism exhaustively either as a concept or in its many manifestations. This paper cannot do justice to decoding all racism into all of discrimination law, so there are, unsurprisingly, limits to what is actually being done here. ![]() ![]() Part V concludes by reiterating the significance of this link in addressing instances of race discrimination which can only be understood as part of the ‘invisible monolith’ of structural racism. Part IV sets out the main implications of drawing a link between structural racism and race discrimination. Part III does this mapping to show how structural racism seems to be the key to understanding race discrimination in some recent cases of both direct and indirect discrimination. Part II of the paper explores the meaning of structural racism, which will be helpful in mapping how it manifests in discrimination law. It argues that while race discrimination and racism are not the same thing, race discrimination has a clear link with racism understood broadly and in reference to the processes of racialisation which define both the structure of racism and the individual instances of race discrimination as part of that structure. The aim of this paper is to exhume the structural view of racism in discrimination law. 7 And in excluding this view, race discrimination appears to miss a large part of racism as it exists today. Importantly, it excludes from its ambit structural racism which is broader and stands for ‘the complex totality of forces in British society which have produced racialised political ideologies and practices’ 6 or, more simply, ‘the whole complex of factors which produce racial discrimination’. It grossly underestimates what racism is and in turn the work it does in understanding race discrimination. It embodies a narrow understanding of racism as psychological and inhering in the minds of individuals. This stance though rests on the assumption that racism is a subjective state of mind. Rather, race discrimination, especially direct race discrimination, can be proven with facts showing that the discriminator relied on ‘racial grounds’ irrespective of their state of mind, whether bigoted or benign. ![]() If racism is a subjective state of mind but a state of mind is ‘not susceptible to investigation’, 5 it is pragmatic to exclude it from proving race discrimination. This is a pragmatic stance for discrimination law to assume. Furthermore, as Lord Clarke in his concurring judgment clarified, overt racism, such as the belief ‘that God had made black people inferior and had destined them to live separately from whites’, would be discrimination based ‘overtly on racial grounds … because the criteria were inherently based on racial grounds and not because of the subjective state of mind.’ 4 In other words, racism, understood in the popular sense captured in his example-as the belief of superiority of one race over another-did not feature in our legal understanding of race discrimination. 3 Assuming that it is racism which makes people racist, the implication was that race discrimination does not make the discriminator racist. As the UK Supreme Court in its very first decision on non-discrimination, its first decision at all, reminded us no less than four times-to be guilty of race discrimination was not to be interpreted as being a ‘racist’ in the popular sense of the term. There is no indication that the phrases ‘less favourable treatment’ and ‘particular disadvantage’ are to be interpreted as racism. The prohibition on race discrimination is defined as a prohibition on ‘less favourable treatment’ 1 and ‘particular disadvantage’ 2 based on race. Nowhere does the Equality Act 2010, or its predecessors Race Relations Acts of 1976, 19, prohibit ‘racism’. In fact, one would be hard pressed to find any reference to ‘racism’ in the law prohibiting race discrimination. ![]()
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