What will the Equality Act 2010 do for Us?

'Someone said to me, you are a lawyer, why not write about legal things? Because I ponder on legal things for my living. Because writing on legal issues makes it seem like work. Because most legal topics are fairly dry. Because there is already lots of commentary on legal issues in the UK. I feel strongly that my writing must be like an orgasm- a short and sweet, pleasurable, gushing, release.


However, I decided to make a short foray into this arena as the press went wild last week with a report that 2 jobs out of 670 on a council were reserved for black applicants. Given that positive discrimination in the United States has received such bad press (never mind they have a black President and we have Diane Abbott and Oona King), I thought that it might be useful to analyse how far Gordon has pushed the debate on equality with the passing of the new Equality Act 2010 in the wash up before the elections. In particular, I wanted to focus on what real advances it represented for us, people of colour.

I say this because the Race Relations Act did quite a lot to advance the rights of ethnic minorities here in the UK. I will never diss the 1965 (and the 1968) Act because at its time of enaction, they were indeed revolutionary. The Race Relations Act made it illegal to refuse housing, employment and public services to people on account of their ethnic background. This was in direct response to the “No Blacks, No Dogs” posters which featured on many To Let signs in London and in many pubs and restaurants and came after Enoch Powell’s Rivers of Blood speech. It was an answer to the Notting Hill Riots where white “Teddy Boys” displayed hostility to and attacked Caribbean immigrants in an attempt to “Keep Britain White”. It came after the Bristol Bus Boycott where residents of Bristol honourably defended the rights of black and Asian immigrants to work on the buses in the City.

However, unlike the affirmative action movement in the United States, the Act was negative in nature- prohibitive instead of prescriptive. While the UK Race Relations Act merely prohibited discrimination, the United States introduced a policy that organisations and bodies should take race, colour, nationality, religion and sex into consideration in employment, education, housing, public contracting and health programs. This was to encourage organisations to comply with the provisions of the 1964 Civil Rights Act. Since the introduction of the Race Relations Act, there has been no equivalent policy in the UK, to ensure that UK organisations are compliant. So has the Equality Act 2010 finally taken a step towards encouraging diversity instead of merely prohibiting discrimination?

To begin, it is useful to state that the Equality Act 2010 is aimed at streamlining and rationalising discrimination law in the UK. Instead of having one law for women, another for people with disabilities and yet separate legislation for discrimination on the grounds of race and sexual orientation for example, the new Act aims to address all forms of equal treatment before the law in the same way. The Act is therefore  very wide in ambit and deals with many significant changes in the way discrimination is defined. For example, it introduces the issue of gender pay reporting (following reports that showed that women still get paid almost 17% less than men for doing the very same job), strengthens protection for disabled employees (including indirect disability discrimination) and makes third parties such as employers who condone harassment liable. I am sure that these advances will be welcomed by all, regardless of political persuasion, gender, race or creed.

There are, however, a few provisions that are likely to have a significant effect on persons belonging to black and minority communities in Britain.

First of all, direct discrimination now covers discrimination by association and discrimination by perception. The law now recognises that a person can be discriminated against based on the perception of others, even if in fact, said perception may not correspond to what is actual fact. The quintessential example is that of a woman who wears a headscarf. She may not be Muslim, but she may be treated differently or unfairly as if she were Muslim. Interestingly for me, this may also cover the discrimination faced by persons who sport dreadlocks in the workplace. If it can be shown that this person suffered discriminatory treatment on account of the fact that others believed that he or she was Rastafarian (even though that person had never in fact smoked the sensi), then it might be that a valid case of discrimination can be made out without having to prove actual religious belief.

Secondly, the Act allows cases of dual discrimination to be brought at the same time. Under the old laws, cases involving say a black female who believed that she was discriminated against at work (let’s just say for the sake of controversy- given lower quality work than her male colleagues, or being put on less challenging deals/matters than her female colleagues) would have had to show that she was discriminated against because she was black, and then, under separate test, because she was a woman. This made discrimination very difficult to prove because of the requirement to satisfy two different tests. This proved a problem in environments which suffered from a paucity of ethnic minorities and the fairer sex. Many times there were no comparators. What do you do if your organisation has no other black people in it? Or no other women? Very often these perfectly valid claims failed. No more from April 2011.

Thirdly, and most importantly, the concept of positive action has now been introduced in UK law. The Act states that positive discrimination remains unlawful. Positive discrimination means giving more favourable treatment to someone because they have a protected characteristic (of a certain age, race, religion for example). Positive action on the other hand is lawful, but is now restricted to action such as training designed to encourage underrepresented groups to apply for particular jobs. The Act will allow employers to hire or promote someone from an underrepresented group, but only where they have a choice between two or more equally qualified candidates. This is not a form of positive discrimination (which would favour the less qualified black person over the more qualified white person). The Act calls it 'Positive action: recruitment and promotion'. It is worth noting, before the Daily Mail politburo gets at me, that the Act does not require such positive action- it merely permits it.

I do have, however, some concerns. The Conservatives indicated that they would repeal several parts of the Act if they did win the elections, particularly the sections on positive action. It may not be worth then heralding a new approach to inclusion until we can see if these sections in the Act are not likely to die a swift death. In addition, the question of what being 'equally qualified' means is not defined. Will it require roughly equivalent grades at Oxbridge? Or will good marks from a London redbrick suffice? No two experiences are ever able to be equally defined, especially when persons from BME backgrounds are less likely to attend better schools and universities. There is also the issue of whether or not the provisions will be actively used and promoted. Will employers actually use the sections on positive action to justify their choices in recruitment or promotion? Or will they be afraid of being accused of positive discrimination (illegal under the Act). The line seems to be a difficult one to draw so it might result in most employers fearful to hold the pencil.

The majority of provisions in the Equality Act 2010 are due to enter in force in October 2010.

(Image from globalemploymentlaw.com- all rights reserved)

Revisiting Elmina

I revisited Elmina in October 2008. I say revisited because the spirit of my ancestors had already survived the soul wrenching experience.

I took the bus from Accra to Elmina to the background of the incessant monotonous bleating of conductors repeating their destinations. Armed with "pure water" from a girl too young and beautiful to be resigned to a hawker's fate, I clambered aboard a slow-moving reject of a bus, reminding me, that ultimately Africa was still the dumping ground of the West. "Plantains miss?" "Yes please" I answered, even though I already had four packets in my bag, another purchase made to alleviate the guilt of being one of the lucky ones, as if by buying one packet of the tasty salty crisps, the mounds balanced tentatively on her small head would disappear more quickly, and the acid taste of a life selling the same thing around the same time to the same people would be tempered. With every stop of the bus, children clambered behind, conducting multiple transactions on foot, running (and catching up with) customers drifting away on heavy engines. Eggs with "pepp-erh", bread, combs, toilet rolls, cotton buds, CDs- nothing to cumbersome to trade for spanking new Ghana cedis.

The town of Elmina greeted me first by its smell, as if to remind me that the souls of cadavers of millions of African brothers and sisters had found final repose within its environs. It was the smell of festering sea-life, lives that had not sailed full-circle and had instead drowned on ocean floors a few miles away. The boats, by contrast were colourful in their regalia and sat on the sweltering seas, basking in stifling heat and humidity, dilapidated with a certain faded beauty, much like week-old artificial wreaths carefully poised on the mounds of graves in tropical cemeteries. This old Portuguese trading post, Sao Jorge de Mina, seized by the Dutch and then by Britain, was perhaps the last memory that my foreparents had of Africa, homeland.

I was taken on a tour of the castle, where slaves died below the floorboards of the rooms in which European men and women feasted. The recollections in Caribbean History II came alive as I walked the route of the dead. The holding cells were so tiny they were worse than claustrophobic, with no light save for a hole providing a muted view of a very distant horizon. I was frog marched into the slave prisons where those who rebelled were left to starve to death in a space that was undeserving of the name of a room. I was shown a connecting stair from the Master's quarters to the female slave rooms, where chosen female prisoners would be led to satisfy the cravings of needy conquerors.

History told me that I should be angry at the white mercenaries who treated our people so disposably. History told me that the white man's greed had no boundaries and that they went into our villages with guns and stole our grandmothers, grandfathers, parents, sisters, babies. History told me to be angry at the Popes and their papal bulls that condemned the black race to slavery. Maybe it was my eleven year old self, but I had always imagined the coastal towns to be almost void of life and form. I had imagined that the invaders slaughtered all in their way and that the coast was disfigured and barren – this was why they were able to take us away in such numbers and with such ease. I had heard stories of African slave traders but believed that these were only an errant few- all an exaggerated ploy by the West to humiliate our people and to absolve themselves: tales of the hunter always demeaned the hunted. Maybe I knew, but did not wish to accept that most of the Fante people, descendants of the Akan promoted the business of conquest and warfare. That among their ancestors were merchants and miners who traded gold. That it was easier and more profitable to replace gold with bulky human bodies. That chiefdoms were drawn along kinship lines and were the symbols of allegiance and not the colour of one's skin. So as I traced my way around the skeleton of Elmina, I felt no anger towards nameless faceless ship owners but intense disgust and disappointment that this was also our shame- the active facilitators of this dreadful trade in souls were us.

Far from being powerless, we were powerful. Far from being victims, we were aiders and abetters. Tribe over race, over country, over religion. 35 slave posts dotted around Ghana speak for themselves. Slave warehouses, trees with exposed routes for chaining prisoners and mass burial sites silently reveal what we do not wish to admit. I saw with my own eyes that directly adjacent to this castle where lives were tortured, men and women were able to swim peacefully in these seas of blood. I could imagine that while my forefathers were walking several kilometers in brutal conditions, shackled to each other, branded and stamped by fire, the coastal barterers and slave traders were able to eat yam and fish over open fires, to smile at babies being born, to fish and hunt and gather, to worship their gods in cool comfort. While tens of millions of African people forcibly left their shores in deplorable conditions, the barterers of the Gold Coast were being seduced by metal cookware, grains and seeds, livestock, rum, gunpowder and kola into selling people who looked exactly like them for less than the prices of horses. In fact in 1889, a German traveller called Blinger visited the Salaga market in the northern part of Ghana today, and made this startling revelation. "300 cowries are sold for a male slave, 400 for a female slave, 1000 cowries for a horse, 500 for an ox, and 150 on a sheep."

So as I stared into the distance from the Door of No Return I did not curse the white man. I cursed the Oyo Empire, I cursed the Kong Empire, the Kingdom of Benin, the Kingdom of Fouta Djallon, the Kingdom of Fouta Touru, the Kingdom of Khoya, the Kingdom of Khasso, the Kingdom of Kaabu, the Fante Confederacy, the Ashanti Confederacy and the Kingdom of Dahomey. And I prayed. That never again.

House Negro at the Oscars: Why I liked Precious and didn't like the Blind Side

House Negroes, in the eighteenth and nineteeth centuries were privileged. Privileged in the sense that although they worked long hours, they did not have to face the unrelenting sun on the cotton and sugar plantations on a stomach half empty with meagre rations, fearful of rotation, suffering facelessness and with no home and firth. Yes, House Negroes had to answer to “Massa” but they were subsumed as part of the greater “family”, their tasks were difficult but not onerous, and they owed the “adopted” family their loyalty in exchange for a roof over their heads, food and clothing. They were portrayed as smiling and gentle, docile and non self serving, in contrast to the other specie- The Field Negro.


Upon analysis, I didn’t like The Blind Side. It’s strange because it felt good enough in the cinema. My conspiracy theory is that it insidiously reinforces stereotypes by hiding them behind a feel good, underdog story. We all love feel-good, underdog stories. Big Mike, I felt,was cast as the chosen one who was given a chance at being the House Negro: he was too docile, too submissive, too gentle to be real. I know the script is based on a true story but the film is telling by what it chose to include and what it chose to leave out.

Sure, my eyes welled up when Big Mike was cold and alone and wandering from the gym to the Laundromat with nowhere to stay and this generous woman, who did not know him from Adam offered him her home with such magnanimousness. Being the softy that I am, I melted when he went “home” and he had to hide behind a wall because there was no “home”. I cried again when he became part of Lee-Anne’s “family” and wondered- how many other people would genuinely do the same? I loved Lee-Anne. However, I found that The Blind Side’s categorisations were too trite, and its stereotyping too insidious to leave me feeling comfortable, and certainly the story was not poignant or layered enough to garner its leading lady a Best Actress Globe (although Sandra Bullock did a fine job with the material that she was given).

Would a boy who has grown up in the worst areas of the inner city and passed around in foster care be so defenceless? He was never once angry. Would a crackhead be so rational to tell her sons to close their eyes while she was shooting up? Did he really not witness things that a boy should not have witnessed? Typical for House Negroes, Big Mike was seen to have no real personality or character trait except that he had a “strong protective instinct”. He was not contaminated by the “filthy projects” so he was regarded as acceptable to live in the Great House. He did not live up to the expectations that he would steal (honest) and he would hurt himself for his adopted family (self-sacrificing). That was all we saw. Did Big Mike have a girlfriend at school? Did he fall in love? Did he ever get angry? I am sure the answers are all yes, but it would have probably pricked the sensibilities of the target audience too much to enter this humanistic realm. The portrayal of Big Mike as comfortable in his alone-ness, his only friends the children- with the subtext that only they understood his innocence- beggared belief.

Apart from the person who tried to get Mike into a good school (who ultimately threw him out of his home) there were no good black role models in the film. All the evil forces were black. His mother was a black crackhead, his peers were black drug dealing, lustful and violent men and at one time Big Mike had to encage Lee-Anne in her car to protect her from their claws. Even the “extra” roles were intriguing in their portrayal of us: the scowling uncaring woman at the Laundromat was black, the mouthy administrative officer at the foster care centre with an attitude was black, the guy who owned a store for big and tall people who didn’t really cater for big and tall people was black, the intimidating woman who mercilessly interrogated Big Mike about why he chose Ole Miss was black. Themes of saving persons from a life of savagery through assimilation evokes tales of a merciful slave master- Lee Ann’s friends did not enter this no go area, they did not help to build its schools and its organisations, could they have contributed to the oppression and neglect that led to Mike’s exclusion?

The story also reads as if it could fall straight out of a Sarah Palin campaign draft: “Republicans Love Black People Too”, a struggle in the hinterland of Obamaland to present a world that is post racial. I appreciate that football and sport in America occupy sanctified territories but I would have been more impressed if the story was about a Republican family who had taken a young boy from the projects or from the streets and helped him to become the next star doctor, engineer, or political scientist. Are there any of those who have made it? We have enough ballers and rappers already. That’s not all we can do.

This is particularly affecting when the other Academy Award winning actress was Monique for her role as an unfeeling abusive mother in Precious. Although the theme of redemption flowed through both films, I felt that the characterisation of Precious was much more textured: Precious was monosyllabic and underperforming in the same way as Big Mike was, but she was much more than an abused teenager. We were allowed to get into her head- she had her own dreams and her own plans, she was funny and resilient in the face of adversity. Precious, was, in her own way, winning. She had real peers. She was surrounded by real people. Her redemption did not come unaided but she largely had to work out her own salvation. Her story ended sadly but positively: she was going to move on with her babies, in her own space, in her own place.

There was a tremendous overload of abuse in the movie- Precious was obese and pregnant, HIV positive, with poor self esteem and a Down’s Syndrome child, pregnant by her dad, beaten by her mother, waiting on a heart attack. Some black people don’t like it because they thought it reinforced negative stereotypes. I say tough. Not all the black people in this film were like Precious. I think the film presented a wide array of characters and circumstances. It probably bothers me more that Barbara Bush led a special screening of the film: poverty porn is disgusting.

Why is it that I like Precious and not the Blind Side? Not because I believe Monique really went out of her comfort zone to play her role. I feel it is very easy to play mean. There were no vulnerable moments, I felt her acting lacked subtlety- her performance was “Cruel and Sick 101”, “Cruel and Sick 102” and “Cruel and Sick 103”, even in the dénouement at the end. I liked Precious because some black people are cruel and callous and are welfare queens who abuse their children and they need to be outed. In the same way that it outed that there are black folks who give up their lives to mentor and support inner city kids. I liked Precious because we saw both sides of Harlem. I liked Precious because it showed us that true help is self empowerment. Hollywood does not owe black people happy endings and positive portrayals. All I ask for is a fair one.

Stating the Obvious: Blackspeak

Black people love talking about being black. Whenever a group of “us” congregate, it is almost inevitable that the topic would turn to that hefty communal personal thesis – The Black Condition or rather The Significance of Being Black. It would therefore be remiss of this not to introduce myself without stating the obvious. I do not say this to say that I feel burdened by this, it is almost as if talking to an old friend- like the English platitude of the weather, black people feel a certain comfort, a “plantainisation” so to speak- to talk about being black.

The trouble with this conversation however, for me, is that I find myself not speaking it in earnest. Precisely because it is a conversation I never really knew. I only really knew I was black on 3 October 2001 in a McDonalds restaurant in Cambridge. Sure, I had read about Marcus Garvey, the civil rights movement, Rosa Parks, the comeback of the Afro, black power and thought I truly knew it all, until that day. It was a simple and ordinary conciliatory gesture but to this day, I bet that sixteen year old who served me did not know the weight of his question? I asked for a Big Mac with no pickles. He asked me if he could bring it to me. I for the life of me could not understand how he would be able to pick me out among the sea of people who were in McDonald’s at the time (this was before the McFood scare). It was only after a moment’s reflection I had the epiphany- I was the only black chick in the village.

Don’t get me wrong. I don’t wear my blackness as an affliction. Not at all. I like being black. I like the fact that I can own and lay claim to Stevie Wonder, Bob Marley, Barack Obama, Nelson Mandela and Oprah (not necessarily in that order). Okay maybe I get a little bit annoyed when all the nude shades of the season are a corally pink (isn’t the point to make it look like your skin?) and when M&S and Boots only do one shade of black people tights (Cocoa and Vision respectively) but overall, I think I am really lucky.

I imagine myself in an interview. Ms P, how does it feel to be black? Me: I don’t really know. How do you feel to be a man? See, growing up in Grenada where almost everyone is black there isn’t the feeling of minority attached to this colour. We were brought up bold, confident and even arrogant (to some extent) because we were never taught that we had to tick a box that had some sort of meaning or “belying expectation” connotation. We existed in a state of blissful racial playground disharmony- teasing each other for any peculiarities- race was not cordoned off as a no go area. It was “coolie coolie ram goat” for one of my friends of Indian descent, “goat rolls” for me, because my afro hair was kinky and as hard as goat’s droppings and we traded these insults with affection. Because of this I never grew up thinking I was different or that my parameters were adjusted in any way. I was simply Akima, Bridget’s granddaughter, who lived with her mother in a small wooden house by the pasture.

The Black British experience is therefore very different to my own experience. I remember going to my first job interview with braids in my hair, finding it perfectably acceptable. My British friend thought it not conservative enough. I could not care less. Or maybe I just did not know enough of old English establishments to care, about prejudice, discrimination, expectations and conformity. However, now I know I still don’t care.

Which brings me to the inevitable question. What is being black about? Is it now just a word that unites all of us of the African diaspora? Or is it something deeper? A soul-religion, a community, a fellowship? What is certain is that we are not a homogenous group and we are perhaps more divided on more things than we realise. There are some black people I don’t like. Those who recoil for instance at any - the “how dare you suggest I am one of them?” folks who would never show up at Black Lawyers Network meetings. These are the people who like to pretend the world is colour blind and who repeat things like “I never see colour” until the shit literally hits the fan! They are usually known as coconuts although you did not hear that from me. They would most often be found exclusively at the opera or at national gallery (Wasnt Giselle wonderful dear?) trying to prove their westernisation. They do not attend soca fetes and do not cook traditional food (it takes too much time!). They take care to make sure their children are a warm latte or mocha instead of deep Jamaican black. I don't like them hos.

I am not a fan of Nation of Islam, preaching blacks either who try to convince me that my weave is self hate (Nope, I just feel like channelling Kima-Fierce today!)and that I need to support a black business that is robbing me blind (and offering poor customer service on top) at the expense of my Asian brethren round the corner.

Yet, we all seem to have a certain shared experience (no, that’s not based on uniting against The Man). I don’t know whether it is the commonality of a shared history. All I know is that it is present in that random nod that you get on the streets of Oxford when one black person passes another, present in that buzz you feel when you listen to Obama, present in that pride that bursts out of your chest when the West Indies beats England (still hoping!). Maybe it’s just the human condition- to seek refuge in a common denominator.