Positive discrimination is nearly defunct in America, so why should it work over here?by David G Green / October 20, 2001 / Leave a comment
Published in October 2001 issue of Prospect Magazine
One of the most urgent challenges of our time is to establish a liberal tradition of anti-racism. At present the anti-racist movement has been captured by people whose policies tend to heighten the importance of race rather than to diminish it. In the liberal tradition, a person’s race should be like any other first impression-not something a reasonable person would attach much weight to. Yet the Blair government is in the process of copying US anti-discrimination laws just at a time when many Americans are having second thoughts. In particular, the implementation of the Race Relations (Amendment) Act 2000 will institutionalise awareness of race by building it into day-to-day decisions in the workplace and public services. The government intends to impose duties on public bodies to promote the proportionate representation of racial groups and the Commission for Racial Equality (CRE) is in the process of devising codes of practice for most of the public sector. These will come into force in May 2002. The government’s aim is to bring about proportionate representation. According to its February 2001 consultation document, the government feels it is unsatisfactory in a “modern, pluralist society” that we have no ethnic minority generals or high court judges and that less than 2 per cent of senior civil servants and only 3 per cent of teachers are from ethnic minorities, when their representation in the general population is about 7 per cent. It intends to overcome these statistical disparities by imposing racial quotas on the public services, from the police to the fire service through to hospitals and schools. The government denies it is imposing quotas, claiming only that it is imposing race “targets.” But how will a typical manager in the NHS feel when he is told that his target is to ensure that 7 per cent of staff must be from ethnic minorities? Will managers assume that nothing will happen if they fail? These measures will be followed by the outlawing of “indirect discrimination” under the EU race directive, which must be implemented by 19th July 2003. Under this legislation, statistical disparities may provide prima facie evidence of indirect discrimination. In such cases the burden of proof has been reversed, so that employers have to prove that there was a good reason for any apparent discrimination. Yet these public policies are based on the most naive of assumptions. Because ethnic minorities make up 7 per cent of the total population, it is assumed that they should comprise 7 per cent of any subdivision of the population. This view relies on the assumption that the qualities which make people suitable for an occupation, including teachers or generals, are equally distributed between ethnic groups. (To show that this is not always the case, one need look no further than Britain’s athletics team-athletic prowess is not distributed evenly across ethnic groups.) Race discrimination does exist but it is only one among several possible explanations for disproportionate representation. Nobody, for instance, is surprised to learn that few high court judges had unskilled labourers as fathers. Social class, with all it implies about the expectations of parents and the atmosphere of the home, is a powerful predictor of career outcomes. If social class is taken into account when considering ethnic representation in top level jobs, much of the apparent discrimination vanishes. Disproportionate representation is also based on other factors including age, gender and family structure. Age: People who have reached senior positions will tend to be older, whatever their ethnic group. What is the age breakdown of ethnic minority groups in Britain? According to the 1998 General Household Survey, 21 per cent of whites were under 16, whereas 36 per cent of ethnic minority groups were aged under 16. There are also significant variations between ethnic minority groups. Some 41 per cent of Pakistanis were under 16, compared with only 30 per cent of Indians. In view of these differences, is it rational to assume that these ethnic groups should be expected to fulfil an equal share of their quota of generals and judges? Newcomer status: Any person going to a foreign country may be at a disadvantage simply because everything is new. Their race may have nothing to do with their difficulties. About 51 per cent of the members of ethnic minority groups were born in Britain compared with 96 per cent of the white population. Again ethnic groups vary: 13 per cent of Indians aged 25 or more were born in Britain, compared with 32 per cent of people classified as black. Self-employment: Ethnic groups have different attitudes towards self-employment. According to the Labour Force Survey, just under 12 per cent of the total population are self-employed, compared with about 24 per cent of Pakistanis and Bangladeshis, 19 per cent of the Chinese and about 9 per cent of blacks. Groups who prefer self-employment will not be able to fulfil their quota of teachers and civil servants. Command of English: Fluency in English is of particular relevance to the ability of individuals to hold down jobs in teaching or the civil service, or jobs which require handling telephone calls from the public. According to the 1994 survey by the Policy Studies Institute (PSI), of those classified as “African-Asian” 91 per cent had a good command of English, compared with only 75 per cent of Bangladeshis and 76 per cent of the Chinese. Family structure: What about differences in culture and life-style? Decisions to marry or stay single and to have few or many children vary significantly from group to group. Family structure and the number of dependent children also make a huge difference to availability for work. According to the PSI survey, only 4 per cent of white families had four or more children, compared with 7 per cent of Caribbean families, 11 per cent of Indian families and 42 per cent of Bangladeshi families. Asians were also more likely to have complex family structures, one measure of which is the number of households containing three or more adults with or without children. Such household structures make a large difference to the ability and willingness of members to work outside the home. Some 17 per cent of white households were of this type, compared with 49 per cent of those from Pakistan or Bangladesh. Family breakdown: Family breakdown has a big impact on the ability to get jobs. Regardless of their ethnic group, it would not be easy for a lone parent to hold down a full-time job as a teacher or civil servant. According to the 1994 PSI survey, 21 per cent of white families with children were headed by a lone parent, whereas for those classified as Caribbean the proportion was 45 per cent and “South Asian” 8 per cent. Social causation is complex and it is plain that there are many explanations for statistical disparities between ethnic groups apart from discrimination. But there is a still deeper truth, namely that disparities will inevitably be discovered whenever researchers base comparisons on the sort of outward characteristics that can be measured by statistics. We are all highly diverse in our individuality and statistical measures only get at part of this diversity. Race is a characteristic of all individuals, but how certain can we be that we have identified something significant about an individual when we define his or her race? As Amartya Sen has said, everyone has overlapping identities and our race may be of little significance to us. He is, he argues, from India but is also master of Trinity College, Cambridge, an economist and someone who has lived most of his life in England. Why single out his skin colour as the most important thing about him? We could all point to overlapping identities: wife, mother, good neighbour, and so on. If we are seeking to define the characteristics of individuals which explain social outcomes, such as their wealth or type of job, we cannot be sure how important race is as a causal factor. Yet the racial monitoring and preferential treatment which is supposed to follow will heighten each person’s racial awareness. It will encourage people who have sought to live their lives without regard to race to see themselves primarily as members of an ethnic group. This is how preferential policies affected a successful Puerto Rican businessman of my acquaintance who had reached the upper levels of a major American corporation. Although he was born in Puerto Rico, he had left at an early age, thought of himself as an American and he could hardly call himself deprived. Then, when his daughter was 18, he found that she could not get into the college of her choice on merit, but that she could gain admission if she applied as a Puerto Rican, taking advantage of the quota for ethnic minorities. What should he do? Could he deny her a place in her chosen college? With a heavy heart he decided he could not. Many Americans have had similar experiences. They had been living according to liberal ideals, trying to succeed through hard work and on their own merits, only to find that their approach was rather like turning down a pay rise. The rules of the game means that it pays to play the race card. So far I have argued that racial disparities may not tell us very much about the presence or absence of discrimination and that preferential policies increase the importance of race. Nevertheless, the government is in the process of imposing new laws on the assumption that statistical disparities between ethnic groups are proof of discrimination. Worse still, EU legislation will soon enforce the offence of “indirect discrimination” which will punish people who have done no direct harm to any other person. Under the EU race directive, “indirect discrimination” occurs when “an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” It is recognised in EU law that there could be legitimate reasons for disparities, but the burden of proof is on employers to show that a disadvantage experienced by a member of an ethnic minority was not the result of discrimination. To face a burden of proof is itself a penalty involving costs in time and money. Normally any such use of state power would be considered unjust. The vast majority of people in Britain want to treat ethnic minorities fairly and do so in their everyday dealings. The liberal approach has been to emphasise equality before the law. Underlying this ideal is the concept of a society of free persons who accept constraints in order to enhance freedom. Liberals take it for granted that all are born with different dispositions and talents and that upbringing also provides advantages and disadvantages. The aim of liberals was to ensure fair play for all under the law. No groups should be barred from the opportunity to make the most of their life. During the 19th century the salient issue was religion. Liberals sought the removal of disabilities facing Catholics and non-conformists so that any person could be judged according to his or her personal qualities. They never demanded the proportionate representation of Catholics or Methodists. Religion is an important guide to living, yet it was a fundamental tenet of liberalism that it should not automatically bar access to public office. Having discounted a major cultural influence, it followed with all the more force that visible first impressions should be of low significance compared with inner qualities. Individuals should be judged on their merits, not superficial physical characteristics. The approach being pursued by the government and the CRE does not measure up well to this liberal ideal. Indeed, we now face a choice between two traditions of anti-racism: one may be called “civic anti-racism,” because it emphasises social solidarity as the basis of public policy; and the other “sectional anti-racism,” because it demands that public policy should serve the interests of designated groups at the expense of others. The underlying ideal of civic anti-racism is that people of all races, classes and religions should be equal before the law and equally able to participate in making the laws which protect us all. Civic anti-racists are themselves divided between classical liberals and egalitarian liberals over the extent to which governments can legitimately impose equal outcomes. Classical liberals tend to draw the line at equality before the law, whilst egalitarian liberals in the John Rawls tradition believe that the state can be used to transfer from rich to poor, so long as civil and political rights are not undermined. This division of opinion derives from a dispute about the manner in which we are united as a people, with one group attaching greater weight to equality of material conditions than to equality of political and civil rights. Both classical liberals and egalitarian liberals, however, rest their view of the good society on each individual’s sense of being part of a wider, civil society. The “sectional anti-racists” do not see a society as made up of individuals who share in common institutions, evolved and maintained for the common good. They see people as, above all, members of groups defined by physical appearance. They demand that individuals should be treated in a particular way because of their ethnic status. Disputes about public policy towards the poor provide the clearest demonstration of the incompatibility between sectional anti-racism and egalitarian liberalism. In a sentence, if you want to help the poor-help the poor. Giving preferential treatment to ethnic groups will transfer advantages to both rich and poor within such groups. This problem is very relevant to the former mill towns in the north west of England, where there have recently been riots. If there is a case for public investment, it is of the utmost importance that it should be directed towards people of all races who have encountered hardship because of the decline of the textile industry, not merely to ethnic minorities. Political pressure for governments to assist groups regardless of the needs of individual members is best understood as the natural consequence of the permanent presence in human affairs of self-interest. Liberals always recognised that the use of government power was necessary to maintain freedom, but that such power could always be abused by self-serving individuals or groups. During the 17th century, the chief danger was from religious groups using the state for their own ends. In the 18th century, the US protected itself from this by outlawing all government financial support for religions in the constitution. Also during the 18th century, liberals opposed other interest groups who sought to abuse the power of government to advance their own interests. Adam Smith’s main targets were the commercial monopolies which are still seeking protected status today. In a democratic age, self-serving groups hoping to abuse state power need to present their case in terms that have as wide an appeal as possible. Protecting British jobs has often been a useful strategy for winning taxpayer subsidies, not least because it has a measure of truth in it. Similarly, seeking designation as a victim group deserving of preferential treatment also has appeal because ethnic minorities contain people deserving of assistance. But American experience suggests that the benefits of preferential treatment are often harvested by the already-privileged members of protected groups. For example, one of the mistakes made in America was to give preferential treatment to ethnically owned businesses as a strategy for alleviating poverty. It has not been a success. “Contract compliance” has benefited the already-successful members of minorities. Under the Small Business Act, businesses owned by ethnic minorities were entitled to a proportion of government contracts. However, the American minority businessmen who were awarded these contracts already enjoyed a personal “net worth” above that of the average American. The spokesmen for ethnic groups tend to be pre-occupied with issues of concern to the already- privileged members of their group, such as university access or workplace promotions. Studies of racism in the NHS illustrate the point in a British context. Over 30 per cent of hospital doctors in the NHS are members of ethnic minorities, a substantial over-representation of ethnic minorities in a prestigious occupation. However, critics tend to focus on promotion, demanding that ethnic groups have a proportionate share of lucrative consultant posts. If the result of these criticisms is that a higher proportion of consultants are from ethnic minorities, it will help the small number of doctors concerned but it will not improve the conditions of the least well off members of ethnic groups. But once the advantages of protected status are demonstrated, more groups tend to demand it. Under EU law there are now six protected categories: race, gender, age, disability, religion or belief and sexual orientation. Furthermore there is a tendency for existing groups to expand. Disability has been especially open to expansion, with alcoholics and obese people claiming protected status in the US. As a result, the political process becomes less a discussion of which laws and policies will best serve the common good, and more about wrangling over which groups should have legal protection, or benefit from preferential treatment. A polity riven by factions encourages group polarisation and tends to increase violence. The fact of self-interest also means that employers do not necessarily react to anti-discrimination law as the law-makers expect. They may seek to minimise the impact of the laws on their businesses, with the result that anti-discrimination laws decrease the employment of people from ethnic minorities, especially those with the least skill. The labour market for people with useful workplace skills tends to be relatively free of prejudice because employers want people who can do the job well. However, many jobs require few skills and it is often difficult to judge during an interview whether a particular person will prove suitable. Consequently, it is rather important to an employer that he should be able to dismiss an unsuitable employee after a trial period. If there are two candidates, one black and one white, and it is not possible to decide which is the best candidate, an employer is likely to choose the one who will be easiest to dismiss if things do not work out. According to the International Labour Organisation, unemployment in Britain in winter 2000/2001 was 4.7 per cent for whites and 12 per cent for all ethnic minorities. There is a higher level of unemployment among ethnic groups with the highest proportion of unskilled members. Fourteen per cent of white men of working age had no qualifications, compared with 39 per cent of Bangladeshis, 27 per cent of Pakistanis, 24 per cent of Black Caribbeans, and 15 per cent of Indians. Ethnic groups with the highest proportion of unqualified men experienced a higher rate of unemployment. Among Pakistanis and Bangladeshis the rate was 18 per cent, and among those classified as “black” it was 15 per cent, whereas for Indians it was 6 per cent. Much of the unemployment among ethnic groups will be explained by lack of qualifications, but the figures are also consistent with the theory that employers are more reluctant to take on unqualified members of ethnic minorities than to employ unqualified members of unprotected ethnic groups. If true, the outcome of anti-discrimination laws will have been to increase unemployment among the least skilled members of ethnic minorities. What are the conclusions for public policy? Above all, no one should submit to the atmosphere of intellectual menace created by the race relations lobby, especially in the wake of the Macpherson report. We need to reaffirm our national commitment to anti-racism, but we should not be misled by the race-relations activists into adopting illiberal policies based on group antagonism. Classical liberals and egalitarian liberals should stand shoulder to shoulder in favour of civic anti-racism, in the belief that the life-chances of all members of society depend on a combination of our personal qualities and the mutual concern of fellow citizens, and not on our membership of politically designated groups.