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fabian tract 471 
race and affirmative action 

chapter 1 
2 
underclass in the making 
an idea whose time has come 
1 
3 
3 fettered runners-complainants 
in Britain 5 
4 indirect enforcement 9 
5 
6 
7 
the Commission for Racial Equality 
the alternative strategy 
affirmative action in Britain 
11 
13 
17 
8 
9 
Bakke : a solomonic compromise 
conclusion 
19 
24 

the authors : 
John Bowers is 1a barrister and part time lecturer at Lincoln 
College, Oxford. He has worked for a Washington 'law firm and 
presently assists at Turnpike Lane Law Centre in London. He 
has published several articles in Law Journals, and is currently 
writing a book about employment law. 

Suzanne 1FI'1anks is a television journalist and sits on the Young 
Fabian executive. She spent a year at Harvard as a Kennedy 
Fellow studying American politics and has worked for the 
Washington DC lobby group Common Cause. 

this pamphlet, like all publications of the Fabian Society, 
represents not the collective view of the Society but only the 
views of the individuals who prepared it. The responsibility of 
the Society is limited to approving publications it issues 
as worthy of consideration within the Labour movement. 
Fabian Society, 11 Dartmouth Street, London SW1 H 9BN. 
November 1980 ISSN 0307 7535 ISBN 7163 0471 6 


1. underclass in the making 
J__CJ I) 

Time magazine has written of Britain's 
"underclass in the making". It pointed to 
the striking facts that there are no black 
MPs, ,few black councillors, no black trade 
union leaders and no black chief executives 
of >large companies. The list could be 
extended. A mere 218 out of 127,600 
policemen (0.17 per cent) are Asian or 
West Indian, while 4 per cent of the population 
are black. Just three years ago a 
Political and Econ·omic Planning survey 
found that Asians and West Indians faoed 
discrimination of some sort -in 46 per cent 
of their job applications. This ~s confirmed 
by the .fact that while 79 !per cent of white 
men with educational qualifications to 
degree standa-rd are in pmfessionail or 
mana<gerial positions ; amongst ethn.ic 
minorities the figure is only 31 per cent 
'(David Smith, Racial Disadvantage in 
Britain, 1977). There is little to suggesttha:t things have changed in the last three 
years. And it is now 15 years after t!he 
passage of the first Race Relations Act. 

alienation and frustration 

Alienation and frustration among immigrant 
communities, and particularly the 
younger generation, have never been 
str-onger. Some of this is justifiablydir·ected at the La'bour movement. A report 
to the 1979 TUC Congress commented, 
" From general observation . .. 
ethnic minorities ar·e under-represented at 
every level of the trade union hierarchy ". 
No one could accuse Bill Keys, chairman 
of the TUC Equal R·ights Committee, of 
understatement when he said " The unions 
were late at the starting gate so far as 
the .racial question is concerned ". As a 
recent Labour Pa•rty Home Policy Committee 
report stated, "'I1he Labour Government 
failed to deJ.iver the promisedchanges in the living and working conditi-
ons of Brita-in's ethnic minorities". 

Britain has without doubt shown a benign 
neglect to the problems of ·its ethnic 
minorities. Legislative and administrative 
energies have concentrated instead on the 
"immigration problem". Labour bears 
much ,of the responsibility for restrictive 
and racialist ·immigration policies which 
have bedevilled good race relations and 

M).S

DR

) m .bt5 

fuelled ·racialism~?fe " numbers game " 
was played with ever more ·intensity. 

Immigration :has become used to mean 
black immigration even though the 
majority of those who now enter this 
country to stay for longer than a year are 
actually white. Moreover the very term 
immi.grant is extended to descendants born 
and educated in this country and this suggests 
that •issues of -race are alien, temporary 
problems which will disappear. A 
sound racial policy is dependent upon enlightened 
attitudes to immigration yet,
even among liberal thinkers, there is the 
recurring and crude contradiction that 
good race relations somehow means keeping 
out any more blacks but being n~ce to 
those •who are already here. The introduction 
of restrictive racial-ist immigrationrules show that official action is also 
based on this approach. 

The electoral fortunes of the National 
F-ront a•re presently in decLine but Powell-
ism •lives on in the Tory Party. Mrs Thatcher's 
.feelings were made quite appa·rent 
in her non sequitur uttered during the last 
election campaign, "The British character 
has done so much for democracy, for 
law ... that if there is any fear that they 
may be swamped, people are going to 
react and to be hostile to those coming 
in ". The popular media show a distinct 
lack of sensitivity towards racial problems, 
concentrating on the effects of fmstration 
and anger and not .its causes. 

The violence of Southall or Bristol could 
so easily break out again: graffiti a~lready 
warns, "Bristol yesterday, Brixton today 
". Immigrant communities justifiably 
no longer see the pol•ice as thei.r protectors. 
The use of the antique " sus " law (section 
4 of the 1823 Vagrancy Act) has perhaps 
embittered relations most of all. The fact 
that, in 1979, 767 out of the 1,894 arrested 
for this offence were black te11s -its own 
story. The House of Commons Select 
Committee on Home Affairs has called 
for its abolition: yet the Government's 
equivocaJl line shows its insensitivity to 
what above all other issues has united 
the minority community. 

T<his pamphlet concentrates on employ



ment, which for most people is the central 
issue of discrimination. It compaJres experience 
of race policy on both sides of 
the Atlantic and examines recent American 
initiatives. The central notion is that 
indivi.dual equality of opportunity as reflected 
in the Race Relations Acts of 
1968 and 1976 is no l·onger enough. An 
alternative strategy to move to substantive 
equality must be formulated ; this means 
widespread affirmative action which we 
examine in some detail. Much of this discussion 
has implication for sex discrimination 
too, a.Jthough that is not our prima·ry 
concern. 

In making comparisons between Britain 
and America, it is wrong to belittle the 
differences in racial history and current 
problems. lt is aiso impossible to transplant 
solutions between legal systems with 
differ;ent approaches and traditions especially 
two which, although rooted in the 
same common law heritage, have diverged 
as markedly as the English and American. 
ln what follows several basic differences 
must be kept in mind. 

* Discrimination has been more pervasiveand ignominious in American histmy. 
The familiar pattern started with slavery 
and progressed through a century of 
apartheid practised mainly, though not 
exclusively, in the South. 
* Only 4 per cent of the UK population is 
black, and this body is in no sense homogenous. 
The 620,000 West Indians fom1 
the largest single minority, followed bythe Indians (430,000), Pakistanis (240,000), 
Bangladeshis (50,000) and A£rican Asians 
(180,000) (1979 figures). The cultures and 
aspirations of these various groupsdiverge considerably, and this accounts in 
part for the a·bsence so far of any veryeffective immigrant voice. In tJhe us on 
the other hand, 12 per cent of the population 
are black and 8 per cent Hispanic.
These minorities possess political and economic 
power far beyond that exerted by 
those here. Today there are over 3,000 
black elected officiais in the us. 
• Race rel·ations have always been regulated 
to some degree by the Constitution, 
albeit as interpreted in very different ways 
over time, while in Britain laissez faire was 
lhe rule until recently. Lord Mansfield in 
1772 in Somersett's case wiped the slate 
clean ; it ended slavery as a recognisedinstitution without substituting any new 
race law. The British debate whether l.aw 
ought to " intrude " into suoh a " delicate 
matter" was never a real issue in the 
us. More fundamentally, the us is a 
highly legalistic society. De Tocquevillecommented long ago that " In America all 
questions eventuaUy become Jega1 questions". 


* As already mentioned, race relations in 
Britain is exacerbated by questions of 
immigration, in a way which is not true 
in the us, although perhaps it will become 
more significant due to the current 
(sometimes illegal) migrations from 
Mexico, South East Asia and Cuba. 

2. an idea whose time 
has come 


In the first two stages of American and 
British experience-the prohibition of 
direct and then " indirect " discrimination 
-legislation has progressed at a similar 
pace. There has been an active cross fertilisation 
of legisl·ative techniques and 
British case law has sometimes drawn on 
transatlantic authorities. 

The major postwar breakthrough for 
racial equality in the United States came 
from the Supreme Court .rather than the 
legislature in the •great school desegregation 
case of Brown v Board of Education 
in 1954. This declared unconstitutional 
the " separate but equal " education prevalent 
in the South. That policy was to be 
replaced "with aH deliberate speed". Although 
some legislation had been passed 
concerning voting rights in 1960, it was 
not until 1964 that Congress accepted the 
first comprehensive equll!l rights legislation. 
The enactment of the Civil Rights 
Act was the legacy of a series ·of dramatic 
events. Racial violence in the American 

South threatened to tear whole cities 
apart while one of the largest peacefulprotest marches in history culminated in 
Martin Luther King sharing" his dream " 
with the nation. All this was coincidental 
with the assassination of President 
Kennedy. President Johnson borrowed 
from Victor Hugo in claiming that his 
statute embodied " an idea whose time 
has come". It was intended to cover discrimination 
on the grounds of race and 
sex in almost all privately and publicly 
owned " places of public resort", making 
provision for the cutting off of federal 
funds to those which did not comply. 

It was Title VII of the Civil Ri·ghts Act 
which made it illegal to discriminate in 
employment matters. An administrative 
commission was given authority to operate 
in this area alone. The brief of this 
Equal Employment Opportunities Com· 
mission (EEOC) was to investigate all complaints. 
Only after an applicant had failed 
to obtain a satisfactory settlement from 
the EEOC could he invoke the courts. This 
system, which encourages long drawn out 
litigation, remains today, although there is 
now a limit of 180 days for EEOC action. 
The EEoc's recommendavion is entitled to 
substantial weight in court, and it can 

now, after -reforms in 1972, take court 
proceedings itself in "pattern and practice 
" cases against private employers. The 
power against public employers remains 
with the Attorney General. 

the Race Helations Act 1968 

The British Race Relations Act 1968 
was not an immediate response to marches 
and demonstrations. It was a :liberal quid 
pro quo for immigration restrictions, although 
the violence which erupted in 1959 
in Notting Hill and Nottingham may not 
have •been so far from politicians' minds. 
By any standards it was a timid measure, 
announced by the government as a " first 
step ". Most of it was concerned with 
" public order " ; it prohi•bited incitement 
to racial hatred and outlawed discrimination 
in places of public resort and the 
transfer of tenancies. The Race Relations 
Board, which was established as its enforcement 
arm, appreciated the limited 
scope of its powers, especially since 70 
per cent of the complaints it received fell 
outside its purview. As a result it set upthe Street Committee consisting of three 
lawyers to make recommendations for 
reform. This led to the passaJge of the 
Race Relations Act 1968. 

This statute expanded the scope of the 
discrimination prohibition. Employmentwas covered in all ·its aspects, specifically 
including hiring, dismissal, promotion,
conditions of work and advertisements. 
Discrimination was defined as arisingwhere "a pers.on on racial grounds treats 
another less favourably than he treats or 
would treat other persons on racial 
grounds". 

Again, however, the Act had " probably 
the most reluctant enforcement mechanlism 
that could be devised by the mind of 
man " (Prof J Friedman). The Race Relations 
Board, supplemented by a separate 
Community Relations Commission to coordinate 
voluntary efforts, lacked compulsive 
powers to summon witnesses or to 
issue orders. Neither could investigate unless 
an aggrieved individual complained. 
Then they were simply to " use their best 
endeavours ... to secure a settlement of 


any differences between the parties concerned". 
The victim could not take the 
matter to court himself. 

It was hardly a surprise therefore that a 
Political and Economic Planning (PEP) report 
revealed in 1973 a scene little affected 

\by the Acts. David Smith estimated that 
black unskilled workers had a one in two 
chance of being discriminated againstwhen applying for a job. That colour was 
the major factor was revealed by the 
much lower occurrence of prejudiceagainst a control group of Italians and 
Greeks. The reseaPch also found that 64 
per cent of employers thought that the 
1968 Act had "made little difference" 
to themselves or anyone else (RacialDisadvantage in Britain, PEP, 1973). 

The situation seemed to cry out for an 
individual right of access to the courts. 
This was finally introduced in the Race 

lRelations Act of 1976. The statute was intended 
partly to " harmonise powers and 
procedures " with the recently enacted Sex 
Discrimination Act (1975) and partly to 
amalgamate the Race Relations Board 
and the heavily criticised Community Relations 
Commission into the Commiss·ion 
for Racial Equality with stronger powers. 
Individual complaints in employment 
cases were now to be made to the Industrial 
Tribunals within three months, and 
to county courts in other matters. The 
CRE was accorded a wide discretion to 
assist individual applicants, aHhough legal 
aid as such is stiH not availruble in Industrial 
Tribunals. 

The British definition of discrimination 
was expanded to include " indirect discrimination". 
This notion was originally 
pioneered in the United States by the 
Supreme Court, interpreting the Civil 
Rights Act, in Griggs v Duke Power Co 
(1972). The respondent's requirement of a 
high school education for their employees 
although not discriminatory in intention 
was discriminatory in effect since it reduced 
considerably the number of blrucks 
who could qualify (12 per cent as against 
34 per cent of whites). The essence of the 
judgement was that " Practices, procedures, 
tests . . . neutral on their face . .. 
cannot be maintained if they operate to 

freeze the status quo at prior discrimination". 



3. fettered runners-
complainants in Britain 
The individual's right to maintain an 

action for racial dis·criminati•on has been 

little used. Although judging from PEP 

research there must be some tens of 

thousands Olf aots o!f discrimination every 

year, from June 1978 to June 1979 only 

394 applications were made to Industrial 

Tribunals in employment cases (D epart


ment of Employment Gazette, HMSO, 

December 1979). This low lev·el may

reflect an educated view of the likely

chances of success. F'or only 58 of these 

complaints were upheld, and of these 19 

received .compensation. This success rate 

is much lower than in the analogous 

area of unfair dismissal daims ; yet there 

is no obvi·ous reason why frivolous daims 

should be greater in discrimination cases. 

It is also much lower than that prevail


ing in the United States. This largely

reflects widely divergent attitudes towards 

questions -o'f proof. In Britain, the com


plainant is ~ike a fettered runner, weighed 

down by chains at the very starting 
1 line. 

the British courts 

The problem starts even before that 
starting grid. Although indiv~dual rights 
of access to tribunals are to be welcomed, 
they assuume that applicants are articul•
ate, k:now their rights, and have access 
to h11wyers. Yet as the Royal Commission 
on Legal Servi'ces found, the distribution 
of laJWyers is more closely related to the 
distri:bution of owner occupiers than to 
the population as a whole. They are 
particularly sparse in areas of highminority density. Moreover, those most 
prone to acts of discriminati·on very often 
h·ave .Ianguage difficulties, and understa:
nda~bly find the English lega~ system a 
"hastile maze" (Freeman and Spencer,
Current Legal Prob'lems, December 1979). 

The Commission for Raoial Equality can 
under its statutory powers assist individual 
complaints with legal advice and 
even representa,tion. Significantly, onlythree of the 33 successful applicants up 
to the end of March 1979 were not so 
aided. But the CRE's legal resources are 
smaN, and their budget is unfortunatelyin ·the process of being cut further. 

British courts hav·e not come to ·recog-nise 
that more ample princi'p1es of construction 
mus't be ll!pphed to discrimlina~ 
tion statutes than to the usual prohibitions 
of the common law. These require 
legis~a:tive a't'tention, and a radical change 
of approach on the part of the judiciary. 
All these pro!Jlems a,re essentiaUy inter: 
dependent. 

Proof of discrimination. The general rule 
in English law is tha'!t he wh<> 'brings an 
action mus·t prove his case. In the 
crimina'! law, as is well known, the prosecution 
must prove its case " beyond 
reasonable doubt" ; in civli'i cases, the 
plaintiff usua'IIJ.y has to convince the court 
on the less stringerrt " .balance of probabilities". 
This principle is modified 
where it is impossible, <>r nearly so, fprthe pblintiff to have access to information 
which he needs to prove his case. Thus 
in unfair dismissal cases, " the emptoy·er 
is the party who took the decis·ion to 
dismiss. He knows the circumstances and 
-the reason". B e ,f ·ore the Tories' 
attack on unfair dismissa!l in their reao~
ionary BmP'loyment Aot 1980, the 
burden to prove the fairness of a dismissal 
lay squarely, and rightly, on the 
emP'loyer. In employment discrimination 
cases, however, tlris has never 'been so. 
Yet th'is more than most allegations 
can be easily rationalised away, dissembled 
or ooncea'led !behind other 
ostens~ble reasons why an applicant was 
not se~lected, or an employee sacked; For 
these reasons it is very important that 
the onus of proof shoilld rest on the 
emp1oyer on a balan·ce .of probabi,lities. 

Inferences and statistics. The rule · crbout 
proof provides a further disadvantagebecause English oourts faii to draw 
inferences .of discrimlination in . the same 
Way as their Ameri·can counterparts. In 
a well known complaint of sex discrim" 
ination, a Mrs Saunders app,hed for the 
position of golf professional at Richmond. 
The majority of her interview 
Was taken up wlit'h the question of a 
W·oman's suita!bi'li'ty for . such a jdb and 
Vhere seemed no o'bvjous reason other 
than sex why she_did not get it. Even 
so the Employment Appeal Tribuna1 
r elf used to infer discrimination. 


The American courts recognise more 
clearly the inherent problems of the applicant. 
The Supreme Court has said " The 
purpose of Title vn was to encouragemaxlimum efforts to eliminate racia'l discrimination 
. . . This purpose will not 
be sei."Ved by turning a plaintiff oot of 
I court because direct evidence is unimpressive. 
Suc'h evidence may be impossible 

to provide ". 

In particular, the Ameziican courts are 
wining to dra!W i-nferences from the fact 
that an employer in an area of high black 
density may not have a single minority 
group member in his factory, or a much 
lower proportion than might be expected. 
Jit cannot be denied tha.t statistica-l 
evidence of thlis sort must be handled 
with care and it may go too far to say, 
as some American courts have, that such 
evidenoe alone is " !fully proha'tive " of 
discrimination. Most of their judges have, 
however, shown great skii'l in answering 
these questions. 

So far, British courts, 'in whi·ch there has 
been no tradition of receiving sociological 
research findings and statistical inlformation 
(in the form of the American 
" Brandeis Brie1i ") have hardly al'lowed 
these questions to be formu[ated. Industrial 
Tribunals have taken into account 
as going to disprove discrimination the 
fact that one or two (token?) blacks 
are employed, yet eschew any inference 
from the converse. The Bmp'ioyment 
Appea~ Tribunai has refused to order 
disclosure of the ethnic makeup of an 
employer's worMorce .on the ground that 
on no view could it be relevant (Jalota v 
Imperial Metal Industries Ltd, 1979), 
although there are signs that such an 
extreme position is not taken by aH the 
judiciary (of Perera v Civil Service 
Commission, 1979). 

Class actions. The scope of statistical 
evidence is strongly enhanced in the 
United States by the existence of the 
'dass action". By this means, an application 
may ;be made, and compensation 
sought, on behalf of ali the blaok employees 
of a .company. A pressure group 
can more easily mount a case on their 
beha!Jf because of the <liberal rule of 

locus standi (tthe right to bring a case)
a-pplied thereto. Th-is recognises in a 
practical rform that discrimination is not 
1normaHy against one individual, but an 
entire group. Professor Wil'ham Gould 
has commented, " When the dust settled 
in the late 1960s, it became clear that the 
most important factor for black plaintiffs 
was to .be found in court rulings that 
the victims of discrimination could maintain 
class actions " (Black Workers in 
White Unions, CorneH University Press). 

~ In Britain the "representative action" is 
more circumscribed and, for little 
apparent reason, does not e~tend to 
Industrial Tribunals. The introduction .of 
a widely defined class action is long overdue, 
and might be accomplished bysimply amending the rules -of court. 

Discovery. That all these elemen;ts are 
interlinked is shown by the fact that a 
dass action would make possible wider 
ri,ghts to disclosure of documents. The 
niles .olf "discovery", ·as these are called, 

re ,generally stricter in Britain than in ' 
the Un'ited States. While this is generally 
to be applauded since it prevents the 
courts being overloaded with an avalanche 
of papers, there is surely a cas·e 
for relaX'ation of the rules in the discrimination 
field. The applica,nt here will 
normally have next to no idea what really 
went on behind the scenes in -the decision 
not to take him on or to dismiss. Yet 
this wil1 be vita'[ to his case particularly 
if inferences will only be drawn in 
extremis. 

En:glish courts have been especially loath 
to order disclosure of confidential reports 
on fellow applicants. T-hese may be necessary 
to demonstrate that the compb'inant 
was in every way better qualified than 
the person olf a different race who ultimately 
got the position. Some Olbjectionsto the release of confidential information 
are clearly valid. But they may usually 
be guarded against by pro'hi,biting the 
release olf names, and covering up identifying 
or embarassing details. The leading 
House of Lords' judgment, Nasse v 
Science Research Council, 1979, declared 
tlrat such reports should be disclosed only 
When they are " necessary for the fair 
disposal of the case". The judgments, 


however, give little .guidance on the 
criteria for necessity, and have spawned 
a flood of litigation seeking to clarifythe point. In these cases, Tribunal Chakmen 
have not always been liberal in 
granting ·applications for disclosure. 

The Commission for Racial Equalityshould issue a Code of Practice on disclosure 
of documents in race discriminat>
ion .cases, dealing with the interests to 
be regarded, the ends in view and appropriate 
safeguards for confidentiality. 

Remedies: Compensation and injunctions. 
Louis Claiboume has said "No 
anti-discrimination law will operatesuccesSlfully unless v·iolations are costly, 
and appeai to the laJW is worthwhile for 
the victim". Comp•ared with .the Civil 
Ri•ghts Act, the remedies available in 

itain are indeed frail. 

No American employer ca,n view with 
equanimity the millions of doHars 
awards which may result from a largeclass action as "back pay". An American 
applicant can expect to be given the 
pay and fringe benefits he would have 
received but for the discrimination. (the 
"rig'htfu1 place" doctrine). In 1974 nine 
major us steel compa,nies had to pay300 miJilion doHars for persistently indulging 
in discriminatory practices. In Britain, 
compensation is awarded on the le~ 
I' beneficial tort basis. Damages for injury 
to feelings a·re ludicrously small, rarely 
eJOCeeding £100. An upper limit is placed 
on an individual's claim df £6,750. So 
far most awards have been under £1,000. 

J.it is not suggested that the American 
virtuaHy punitive awards should be 
resorted to in full measure. That would 
anyway be out of character with the 
generally lower level of damages awarded 
in English actions in other spheres like 
persona!! injuries. But a more generousprinciple of ll!wardi·ng damages for injury 
to feelings, fully recognising the ignominy 
of discrimination, rni.ght be introduced 
by statute. There should certainly be a 
hi•gher maximum limit. 

American courts can -issue injunctions,
a power denied to Industri•al Tribunals 
~a,nd more furrdamentaHy ·they can " order 


such affirmative action as is appropriate ". 
They have used this power to full effect 
and thus set the scene for voluntary plans. 
As one example the San Diego Po-lice 
Department, which was found to have 
systematical'ly discriminated a g a i n s t 
bl'll!cks in the past, was ordered to achieve 
JWithin a five year period a similar representll!
tion of each minority group in each 
jo'b classification as approximMes to their 
respective proportion ·in the local population. 
Actively supervised by the court, 

Ithis sort of order positively ensu·res that 
no further discriminatory practices take 
place. 

The judges. At its broadest the problems 
of individual! enforcement in Britain 
reflect an enormous different of approach 
between judges on the two sides of the 
Atlantic. Civii rights has become fir.m!y

I 
part of the American judicial landscape. 
The judicia·ry has built on its experience 
of protecting group rights under the us 
Constitution, especially the Foorteenth 
Amendment. 

Britain has neither Constitution nor Bill 
of Ri·ghts. Our civil liberties, such as 
they are, ll!re part of the judge made 

Jcommon laJW. This has some advantages 
but as Lord Scarman said in EnglishLaw-the New Dimension (HamlynLectures, Stevens, 1975), "When times 
are abnorma'Hy alive with fear and prejudice 
the common law is at a disadvantage 
". Messrs Lester and Bindman (Raceand the Law, Longman, 1972) stress 
further the limitations of the common 
laJW in this respect, emphasising " its 
neutrality towards profound differences 
in power between institutions and groups 
and individuals ; its reluctance to expand 
traditional .concepts of public policy in 
accordance with changing condi-tions ... 
and its deference to privll!te contractual 
law making ". The oia-H·er element could 
hardly ·be better perceived than in the 
judgment oif Lord Diplo-ck in Ealing LBC 
v Race Relations Board. He considered 
that the Race Relations Act restricts the 
liberty which the citizen has previously 
enjoyed to differentiate between one 
person and another in declining to enter 
'into transactions with them (author's 
italics). 


This encapsulates a laissez faire individualistic 
notion df freedom, whereas the 
Race Relations Act 1968 which he was 
interpreting is clearly concerned ro protect 
collective rights for minorities so 

,..~ssential to a democratic society. 

T>his approach has been taken in marry 
other cases. At a time when private clubs 
were not within the scope of the legislation, 
the House o.f Lords decided thM 
an association with 20,000 members was 
a private club. Lord Denning threatened 
to interpret the Sex Discrimination Act 
virtually out of existence when he said 
that it should not app'ly to "matters of 
chivalry " or at aU restrict "sensible 
administrative arrangements " Weake v 
Automotive Products Ltd), although the 
Court of Appeal has recently drawn back 
from this position. In the infamous case 
where it was held that to use the 
word " nig.gers " or proclaim " one down, 
one million to go " (·a reference to the 
death of an Asian) were not incitements 
·to racial hatred, the judge implied that 
the Aot was a restri·ction -on free speech 
rather than ·a positive freedom in itselrf. 

The American judges have approachedthe implementa:tion of the Ci·vil RightsA:ct with ·a sense df zeal. The SupremeCourt has said that it was enacted " to 
eliminate the last vestiges of a:n unfortunate 
and ignominious page of our 
history" and should 1be interpreted with 
this in mind. Professor Gould sums upthei-r record : "The Federal judges have 
paved the way a,nd fashioned the laJW 
... they have shown no lack olf expertiseand deftness in handling the statute". 
This in turn reflects the wider social 
composition of the American judici·ary,
in particul·ar the presence of a largenumlber of black and female judges who 
can direcr!y appreciate the perniciouseffects of discrimination. 

Industrial Tribunals. Most employmentdiscrimination cases are not determined 
by judge al•one. Industrial Tribunals,
which also hear unfair dismissal, redundancy 
and equal pay cases, have primary 
jurisdiction. Originally established in 
1963, this pa.nel consists of an employer 
and emp!oyee representative, with a 

lawyer chairman. They ha'Ve frequentlybeen described as an " industrial jury " 
and indeed inject a desirable element of 
lay justice. It may however be undesirable 
to have .those who adjudicate, particularly 
in indirect discrimination. cases, coming 
f·rom (although not as delegates of) the 
very bodies which may have condoned 
similar discriminatory practices for years, 
irf not decades. This would be less serious 
if the origina•l intention that for discrimination 
cases, a race relations expert 
should always sit on the pa·nel had ·been 
fully implemented. 

Public Interest Law. A parma! remedy lies 
in the formation of a specialist grouptof lawyers to fight race relations cases. 
In America, civil rights la;w has !been 
11iashioned by well funded volun~ary pressure 
groups who have ·been a'ble to 
spons·or cases in a strategic manner. The 
Natiorral Association for the Advancement 
of Colored People and the Lawyers' 
Committee for Civii Rights under LaJW 
are the best known. There are also hundreds 
01f "pu'blic interest law firms " com-
mi·tted to this type of litigation. They 
p-rovide valuruble assistance to those who 
are suspi'cious of official bodies. British 
l laJW centres are a nascent reflection of 
these groups. They however usuallydepend on government or local authority 
money. Moreover their remit is to span 
all areas olf the law. There is a desperate 
need .for a pressure groop wi•th the capability 
to take discrimination cases, and 
really test the la,'w. The unit would have 
an important propaganda function disseminating 
information to communities 
most at risk through locaiJ offices. Its 
speci-a.Jisation should lie in mounting in


1 di-rect discrimination cases. Experienceolf them since 1976 has been particularly 
sparse, and this is not surprising since 
an action to cha'llenge a widespread test.
jng requi·rement, for instance, may cost 
tens of thousands of pounds and necessitate 
expert reports, evidence of effect and 
non-justifiably. In Britain no compensation 
can be 3!Wa·rded for indirect discrimination 
in the a:bsence olf intent so 
the incentive to mount an action is 
obviou&ly reduced. 


4. indirect enforcement 
The· United States has much more ex


• 
perience in indirect enforcement of discrimination 
prohibitions. Most effective 
a-re obligations written into all government 
contracts. These go well beyond the 
requirements of the Civil Rights Act, and 
are actively policed by the Office of 
Federal Cont•ract Compliance (oFCC), a 
major division of the Department of 
Labor. President Kennedy's Exeoutive 
Or.der 10925, which inaugurated this process, 
is the first known use of the phrase 
I" affirmative action ". The rules now a1pplyto every contractor employing over fifty 
people and having contracts worth over 
50,000 dollars with the Federal Government. 
They are repeated on state and local 
levels in most parts of the country. 

The first requirement in planning an 

affi.rmative action programme is informa


tion aJbout the present oomposition of the 

contractor's workforce. He must therefore 

submit a Standard Form containing de


tails about employment of minorities and 

women at every level, and the OFCC can 

make further requests for such informa


tion as it deems necessary. "Compliance

eviews " are then made to monitor pro


gress. If underutilisation is discovered Gn 

an undertaking's minority employment as 

compared with the 1local population and 

availability in the skiklls required, the 

contractor may h:we to make a specific 

commitment to correct deficienc·ies. By

regulations, this " must .include the pre


cise action to be taken and dates for 

completion ". 

'Dhe a·r.gument is often advanced that the 
,gathering o'f racial statistics is discriminratory 
in itself. In Britain the controversy 
thus far has centred around the pl'Ojected 
inclusion in the 1981 Census of a compulsory 
question on e~hnic origin. The 
chief arguments were that this would be 
a gross invasion of privacy .for no apparent 
end ; and that it might be used in the 
wrong hands f.or poJ.iticai punposes adverse 
to minority communities, in particular 
to restrict immigration. These 
points do not apply in full measll!fe to 
~athering statistics in particular companies 
in order to mount and monitor an equal 
opportunities policy. Both tire Runnymede 
Trust and the National Campai•gn 

for Civil Liberties see company workforce 
statistics as an essential springboard to 
volunta·ry equal employment initiatives. 

This is the second part of the requirements 
imposed by us Contrl).ct Compliance 
•regulations. The contractor must 
draw up " a set of specific and result 
oriented procedures to which ~he) commits 
himself to apply every good faith 
effort". This includes the setting of goa~ls 
and timetables (see below). Requirements 
for construction companies, where traditionally 
discr·imination has been particularly 
gross, are even more elaborate. 

Complaints about breach of these contractual 
duties may he made by employees 
to the OFCC. There are several remedies 
availalble, although they are used sparingly. 
Single violations are enjoined by an 
administrative law judge. At the most 
serious end of the scale, a contractor may1ose all .government 'business, and be 
placed on the " contract ineligibility list " 

f

f.or the :future. Since 1965, only eleven 
companies have been debarred altogether. 
These included the Uniroyal Corporation 
following its refusal to implement a 
rea!listic affirmative action programme.
This put it in danger of los-ing 35 million 
dollars worth of business, and soon led to 
a change of polic·ies. More commonly the 
Regulations hang like a sword of 
Damocles. One partiai measure of the 
efficacy of these provisions is that between 
1970 and 1976, black employment in gov-
Jernment contracting fi·rms rose by 23 percent in contrast to the 15 per cent increase 

in the rest of the economy. 

In Britain a rather ·anodyne non-discrimination 
olause dating hack to 1968 is 
inserted into government contracts. It 
goes no further than ~he requirements of 
the Race Relations Act, and is enforced 
~by no one in particular. The 1975 Government 
White Paper on Race Relations 
and Immigration (Cmn'd 6234, HMSO) proposed that the Government should have 
power to request details of employmentpolioies and statistics. This was not included 
in the 1976 Bill, and Fred WilleyMP's attempt to amend it to this effect 
met with a cool response. The CBI fulmin· 
ated that it was "appaNing that govern· 


ment should attempt to use its purchasing 
power to enforce policies not connected 
with the objects of its contracts". CyrilSmith MP thought it was a " step towards 
1984 ". 

It is surely vital that the Government 
should not abdicate its ·responsibility to 
enforce race discrimination prohibitions 
to the CRE quango, as must be all too 
tempting to the Home Office. Where it 
has direct power of the purse, as in dealing 
with contractors and local authorities, 
it should grasp it. The Department of Employment, 
working closely ·with the Home 
Office and CRE, should ·be given overall 
1responsibility for contract compHance. All 
large contractors should •be obliged to 
discuss their employment policies wi~h the 

Department. 

The lack of sensitivity to raci<l!l problemsin the Civil Service itself was recentlyhighlighted in a report by the Tavistock 
Institute of Human Relations. It found, 
for instance, that in London North Health 
Service (DHSS) Region, out of 317 applications 
for clericai officer grade jobsbetween June and November 1976, 110 
came from minority candidates and 200 
from whites. Yet only 10 of the former 
were offered jobs, compared with 78 
whites. More minority than white candidates 
rejected for interview possessed the 
minimum educational qualificati•ons. At aH 
levels, minority employees were found to 
be employed below their level of qualifications. 
The Report was brushed under the 
cal'pet by the Government. In the United 
States the Civil Service Commission has 
authority to enforce standard equa>l opportunity 
programmes throughout the 
Federal Government. Moreover, there are 
many provisions by which the Government 
indirectly enforces affi·rmative action 
commitments in governmental or quasigovernmental bodies. These include strings 
attached to university and college finance 
under Title VI of the Civil Rights Act, 
which was at issue in the Bakke case (see 
chapter 8), and grants under the Fiscal 
Assistance Act 1972 for public works projects. 
Another form of indirect enforcement 
which might be introduced with 
profit here is the intervention by the EEOC 
in licensing, planning and grant applica


tions, putting before the appropriateauthority the race relations record of the 
applicant. It is unfortunate that a proposal 
that estate agents be susceptible to beingstruck off their professional register because 
of persistent racialism was ·in the 
end dmpped f·rom the Estate Agents Hill 
1979. 


5. the Commission for 
Racial Equality 
David Lane said last year of the Commission 
for Racial Equality (CRE) "Much 
of our work is undramatic, not headline 
material. Crises in ·race relations make the 
headlines ". Indeed the CRE should and 
does do much of its work behind the 
scenes. Yet paradoxica:lly it is now ,itself 
making headlines because of the crisis 
within its own ranks. Four years after its 
establishment, which seemed to promise 
so much, the CRE is politically embattled, 
faced .with cuts, riven by rivalries and dis· 
content. It has not estC~Jblished itself as a 
force to be reckoned with. The CRE in its 
present form is either ignored or treated 
with scarcely concealed contempt. Its 
standing with minority groups has never 
been lower. Its first non-discrimination 
notice was actually tom up by the rrecipient. 


The CRE was established as a marriage of 
convenience between the old Race Relations 
Board and Community Relations 
Commission :in 1976 ; it was supposed to 
unite in one body the political and legalduties of the former with the grass roots 
work of the latter. It was to perform a 
valuable strategic function in co-ordinating 
the individual enforcement of the 
legislation with its own powers to seek injunctions 
rfor persistent discrimina1ion , 
combining also work of research and promotion. 
Its three duties are •broad : to 
work towards the elimination of discrimination 
; to promote equality of opportunity 
; and to keep under review the 
working of the Race Relations Act. 

Central to this role is the power of formal 
investigation into any aspect of housing, 
education, employment and clubs. It can 
require production of documents and 
attendance of witnesses and at the end 
Jissue a non-discrimination notice, which 
may go beyond the precise terms of the 
statute. These, while not legally enforceable 
in themselves may be sanctioned by 
Jan injunction in respect of persistence in 
the prohibited .activity. On one occasion 
the powers oi! the CRE were oomp·a·red 
by Lord Denning, in a flight of fancy, 
with those of the Spanish Inquisition. 

Yet in four years only six of these notices 
have been promulgated. Part of the reason 

'lies in the legislation itself ; it is bedeviUed 
with technical reasons for delay.
Those investigated have wide powers of 
making ·representations at every turn in 
proceedings. Looking at the record so far, 
one also senses a lack of adventure on the 
part of the CRE. Investigations have so far 
been addressed only to small companies 
and clubs, although there is presently one 
under way into the housing policies of a 
borough council and the employmentpolicies of the Nationai Bus Company. 

It ·is perhaps too early to form conclusions 
on how appropriate the formal investigation 
structure is. Chris McCrudden has 
proposed that minority groups be more 
involved in this process by adopting public 
hearings like those conducted :by the 
House of Commons Select Committee on 
'R!ace ReLations and Immigration. There 
should also be a more wide ranginginvestigation on the lines df a RoyalCommission (A Review of the Race Relations 
Aot, Runnymede Trust, 1979). 

Instead of accepting its complementaryrole the Government ·regards the CRE as 
an awkward body to be kept in line ; fue 
relationship is full of tension and friction. 

* The Home Office provides the cash and 
the Tories have shown their displeasure 
by making the CRE a victim of public expenditure 
cuts, lopping £1 million off their 
\ budget for 1980. 

* The Home Secretary alone appoints the 
Commissioners to the main governingbody. In April 1980 Mr Whitelaw announced 
that four black and one white 
Commissioner who were widely regarded 
as the most strident in opposition to the 
Tory Government's immigration policy 
would not be reappointed. Corning a few 
days after the Bristol riots this demonstrated 
the Government's insensitivity to 
the views of zn.inoTity communities who 
had been completely excluded from the 
decision. Now it will take a long time for 
their successors to build up any credibiJity. 
New commissioners should be 
chosen for their commitment and unders1anding 
of the problems of discrimination 
rather than on grounds of political convenience. 
Those directly involved at the 

gb1ss'roots should have a role in the selection 
process. If election by the various 
Standing Conferences of minority groups 
is impractical as yet, .full consultation of, 
and -nominations by, those and other 
active organisations <l!re essential at least 
if the CRE ·is not to grow even further 
away .from them. 

* i:t is too easy for Government departments 
to off load problems with a race 
element to the CRE when in the end it is 
( resources of government which must be 
~mploye~ to provide solutions. 

* The CRE's dr<l!ft Code of Practice on 
Employment Practices points to the difficulties 
of the present tension. It was more 
than· three years in :gestation and now it 
has -a:ppeared .it not only lacks bite, 
especially as regards positive policies, but 
already has become a political footbaill, 
with the government fast hackpedalling. 
weakness of the CRE 

Anna Coote's trenchant remarks directed 
primarily to the Equal OpportunitiesComrr1ission, are apposite to the CRE: " It 
rwas set up according to the same unwritten-
rules by which most commissions and 
quangos -are established. These rules a•re 
designed first and .foremost to satisfy the 
i!lterest groups ·which carry most weight 
with •government and only secondly to 
exercise its statutory powers and duties " 
{New Statesman, 1 Decemiber 1978). 

Like many similar bodies it was staffed 
with the .. great and the good " and not 
those who might best express the aspirations 
and .problems of minority communities. 
David Lane, Parliamentary Under 
Secretary df State at the Home Office in 
the Heath Government and well known 
for his hardlirre views on immigration 
policy was by no means the most appropriate 
choice o'f Chairman. The internal 
working of the CRE under Lane deserve 
criticism in a number of areas. 

• The different sections responsible for 
legal assistance, research and promotion 
work r·emain separate with little coordination 
; the vital utiJi.sation Cl'f research 
material to support indirect 
discrimination cases is little advanced. 

* Personality clashes h<!!ve simmered below 
and sometimes a'bove the surface. In 
p•articula:r there have been well supported 
allegations of bias in the appointment of 
local Community R.elations Officers. The 
dimax o.f this unrest was a strike by all 
community relations workers in April1980, the first of its kind. 
* No reasons are ever gi•ven when an 
·individual, who claims he has been discrimi-
nated against, is refused legalsupport 1by the CRE. 
George Schwerner's comments about the 
American EEOC are also relevant to its 
British counterpart: " A position o.f neutral, 
umpire like disinterest by a commission 
has been demonstrated as onlyslightly more effective than no commiss·ion 
at rull. A commission must make itself 
felt". 


6. the alternative strategy 
As th:e 1976 White Paper Racial Discrimination 
put it, " Legislation is not

L) and never can be a sufficient condition 

; 1for effective progress towa·rds equality ". 
_.., What it can do is to create the climate 
f in which society views racial equality. 
Besides this "expressive " function , it 
may also act as a deterrent. 

The strategy and phi'losophy adopted by 
Parliament is thus vital in many ways. 
So far it has been concerned with liberal 
notions df equa'lity of opportunity. The 
nex•t stage mu&t move beyond this to 

tcreate substantive equality. For equalopportunity is of little significance when 
the sta·rting line is manilfestly unequal. 
At worst it is like the announcement 
thaJt the R-itz is open to a!'l, or everyAmerican can become President. The 
concept was weH described by Professor 
Tessa Blackston:e as implying equal 
access to differential amounts of power, 
status, material weaJ.th, whereas the 
notion of equality entails abolition of 
these differentials. 

The United States has moved into what 
might be considered a thi·rd stage of discrimination 
enf·orcement policy which

l 
•Concent•rates on substantive equality. 
There, affirmative action, the genericname ifor this process, derives from what 
can be seen about the structure of dis·
crimination, that it is sysl(ematic, pervasive, 
subtle as weH as overt, most susceptible 
to voluntary action indirectlybacked by the law. 

There are almosl( as many definitions' of 
affirmative action as there a-re individual 
programmes. It h:as been used by some 
as a mere slogan or umbrella word covering 
any progress towards ra:cial harmony. 
Undefined it is, as Len Maddox of the 
EEOC has told us, "like God and mother-
h!ood ". A workcing definition is that 
adopted by the us Department of Labor: 
"the voluntary development df pro· 
grammes which provide in: detail for 
specific steps to guarantee equa'l employment 
opportunities .going beyond passive 
notions .o'f non-discrimination, and in'Cluding 
where there are major deficiencies, 
the development olf specific goa'ls and 
timetables for the prompt achievement 

m full and equal employment opportun-
ities". 

It goes beyond the notion en:compassed 
in a famous Supreme Court judgment'by Justice Haoflan that "the Constitution 
is colour Mind ". It has caused legalproblems in the United States, culminating 
in the Bakke and Weber decisions 
of the Supreme Court. They raised profound 
philosophica'l issues to be 
ex•amined later. 

The position advanced here is th:at a 
rwide range of affirmat·ive action pro-
grammes &hould be introduced in Britain 
voluntarily but stimulated by go·vemment. 
They should be flexible and work 
norma:Hy through preferential trainingIschemes for minorities. In very extreme 
cases, goals, tar.gets and ultimately quotas 
may be necessary to achieve integration. 

There are many complex reasons whythe us is .far along the affirmative action 
path while Britain has barely taken its 
first steps in the form o'f equal opporturuities 
programmes. Besides a deeper 
awareness 1by society of the problems,
and the difference a·lready noted in the 
make up of the minority groups and the 
appr·oach Of the legal system, one mayspecifica:Hy point to •the foNowing: 

* The vocal civil rights lo!bhies soon 
found the promise of the Oivil Rights 
Act only halif fuJifiHed. 
* Much more emphasis has been placed 
on statisti·cs of minority emp•loyment lJoth 
in court eniorcement and in the EEOC's 
and Federal Government's requirements. 
Thus the ev·idence o'f under uti·lisation 
was patent to aU in particular companies. 
* American unions have traditionallyentertained broader notions olf collective 
bargaining than their English counterparts 
who concentrate defens·ively on 
wages and hours. While it would be 
wrong to suggest that a:ll have been to the 
fore in campa-igning .for affirmative 
action, some, notably the United Steelworkers 
and the NewspaJper Guild (thejournalists' union) have hoisted the standard. 
They have written radicai schemes 

into their collective bargains which are 
legaJ:ly enforceable between union and 
employer. The journalists' "model 
clause " states " The employer shall 
make every effort to achieve through its 
hiring practices at the earliest feasii:Yie 
date, but no later than --, a workforce 
composed of a minimum of --from 
minority groups". Their 1972 Convention 
laid down that the local union 
should propose "either the percentage of 
minority persons in their a·rea or that 
in the nation, whichever is the greater ". 
Three years is suggested as the most 
appropriate fina!l date. 

* The us has a l:ong tradition df according 
special privileges to certain groupsin society. The national slogan is " e 
pluribus urum ". For m a n y years 
ex soldiers preference in employment,
particularly in the Civil Service, though 
controversial, has been accepted and 
' enforced. The only British analogy, the 
quota for disabled workers of 3 per cent 
in every factory (unless exempted under 
the Disabled Persons ('Employment) Act 
1944) has been little policed. 

* Affirmative action is to jobs ·what busing 
was to education. After a Iongperiod of acrimony, and the retreats of 
the Nixon era, busing has become established 
both legal'ly and politically. 
* Few American corporations could 
view with equanimity the enormous back 
pay awards of us Federal Courts or loss 
of us Federal Government and state contracts, 
While even a smaH employer in 
Britain could cock a snook at the weak 
I Bri~ish remedial provisions. 

affinnative action 
on the ground 


There remain enormous misconceptionsabout positive policies in Britain. Most 
people jump to the conclusion that what 
is inevita'bly meant by this ·is a rigid quota 
system promoting completely without 
regard to merit or suitabil-ity. A middle 
way is possible: we now look at possii:Yleaffirmative action models as pioneeredin the us. There 70 per cent of employersand most of the household names have 

such programmes, and the EEOC has produced 
guidelines on their contents. 

Policy. Most plans begin with a declaration 
of policy and in some there are more 
affirmative words than actions. IBM's 
smartly produced document begins with 
a Corporate Policy Statement " to take 
positive actions to remove sex and race 
inequality". More significant is a commitment 
to review employment practices 
ro determine whether members of 
minority ·groups are receiving considera-

I 
tion for jobs at executive Ievel. The EEOC 
recommend that this general policyguidance should be publicised by all 
means possible including any companynewsletter, rrotice boards and notices in 
p·ay envelopes. Moreover its existence 
should be communicated to all sorts of 
women's and minority organisations. 
IBM's method is more direct: each employee 
annuaHy attends meetings at which 
the company's equal opportunity pro-
gramme is presented and reviewed. 

Officer and policy formulation. An 
officer is usually appointed to assume 
overall responsibility for guidance and 
coordination in implementing and administering 
the p·rogramme. He should not 
be a low level bureaucrat, particularly 
if he works out of the very personnel 
department whose policies he is policing.
The EEOC urge that he should reportdirectly to the company's chief execu' 
tive officer: this symbo'lises that he has 
the support of top management. He is 
charged in particular to develop office 
and g·rievance procedures Which can be 
used by supervisors and other employees 

l with equal opportunitie'S problems. Under 
the full time officer, machinery should 
be established to encourage maximum 
participation to keep policy under review. 
A·t Polaroid, which has foi"Ward lookingpolicies in this respect, there are five 
special task forces on the status of 
women. Their areas of responsibility include 
corporate policies and companypractices management awareness and 
legal compliance. 

Recruitment. Affirmative action focuses 
on the reasons why minorities and women jhave not come forward for work, or have 


not been appointed. It is now recognised 
widely in the us that word df mouth 
recrui~ing, typical of so much of industry, 
tends to replicate the racia:l characteristics 
of the existing work force. Thus the 
Massachusetts Affirmative Action pro-
gramme says "Ba:sic to providing equal 
employment opportunities is a practiceof employer advertising of all available 
positions". Moreover, in special "outreach 
" policies advertisements wiH be 
placed in newspapers and magazines with 
a high readership among specific minority 

\groups. 

t
t
Selection tests must be fuHy validated: 
the employer should show empirica'llyin his affirmative action programme that 
any selection procedure is predictive of, 
or significantly correlated with, important 
elements oif the jdb for which candidates 
are being evaluated. A start has been 
made in this respect in Brita·in by the 
ction brought against British Steel who 
were usin1g language tests for manual 
workers. 

An important feature in the us has been 
the issue by the EEOC of Uniform Guidelines 
on Employee Selection Procedures 

providing detailed requirements. Moreover 
it defines "test " very :widely as " any 
measure of procedure used as a basis 
for any employment decision . .. including 
the fuH range o'f assessment techniques 
from paper and pencH tests . . . 
probationary .periods . . . and casual 
interviews". 

Training. The affirmative action pro-
gramme will often make training a centra·! 
element. In the leading Supreme Court 
case df Weber v United Steelworkers 
the white plaintiff was complaining of 
~everse discrimination because of a cra{t 
training programme at K·aiser Aluminium's 
Gramercy plant, Louisiana. This 
was designed ultimately to redress the 
gross underrepresentation o'f blacks in 
sk:Hled jobs and was partly a responseto a major class action brought by black 
workers in another 'factory. The policy 
was to admit one black for every white 
to the scheme until the percenta:ge of 
blacks in skilled positions approximated 
to that in the workforce as a whole. 

kgain, as a result of a settled case the 
very important Greyhound Bus Company 
agreed to reserve places at their Driver 
Training School until 25 per cent were 
filled by suita!bly qua!lified women. The 
company undertook to inform every 
·femal•e trainee who did not make the 
grade in precisely what respect her performance 
was deficient. 

Goals and targets. Goals and targets to 
promote minority employment are the 
t heal'! . of the pwgramme. They are so 
sensthve thM they very often remain 
secret. It is thus difficult to determine 
Wheth~r the plans described are representati'Ve, 
a-lthough it is believed that 
they are. This is particularly so since 

,-l'ittle reserch has been done on affirmative 
acti·on in the us. 

The fundamental question is whether 
there is a real distinction to be drawn 
between goals and quotas. That attemptedby proponents of a middle way, among 
whom number the EEoc, and argua!bly the 
American courts, runs thus: goals should 
be definite and precise, significant and 
attainalble. But they are not carved in 
stone: they may be revised upwards or 
downwards depending on chan1ging conditions, 
and as more detailed information 
becomes availa!ble. The Carnegie Commission 
Report wrote, " The failure to 
meet a goal caHs for an inquiry into 
the reasons for failure: to fail to meet 
a quota caJ,Js for penalties" (MakingAffirmative Action Work in H•igher Education, 
Carnegie Commission, 1976). Thus 
goals do not require the selection of unqua:
lilfied persons, and are inclusive rather 
than exclusive. 

The pioneer in this respect was the 
" Philadelphia Plan " formulated under 
government guidance in the 1960s for 
ltlrat city's construction industry primarily 
because of the resistance .of the unions 
to accepting blacks for craft positions. 

It laid down ranges for a rise from 5 per 
cent minority utilisation to 22-26 percent in three years' time for ironworkers. 
Simila·r progress within fairly wi(le bands 
was oaHed for in several other categ.ories. 
In fact the targets were met within the 
prescribed period. 


16 

The 'unusuaHy ela:borate ·programme of 
ATI QAmerican Telephone and Telegrl!-ph) 
Was instituted foJilowing a very important 
multi-miUion dollar court settlement. 
The company extrapolated from census 
data the likely populati.on of the la,bour 
areas within which the <:ompany operated 
for each year until 2000. It then laid 
down goals and timetaJbles for complete 
proportional parity for al'l occupational 
grades and within aH departments bythe enid of a 20 year period. The first 
instalment covers three years and "comp!
ti'ance reviews" are due quarterly. Any 
shortfa'il between t·ar.gets and performance 
has to be justified by management, 
and success in implementing · the 
affirma,tive action programme has 'been 
formally promoted to be one of the 
princip'al criteria by which management 
{ penformance is judged. This has impli· 
cations in determining management's pay. 

IJf there is any genera,l rule df thumb in 
·respect of targets, it is the a:dvice given 
·by the EEOC and OFCC '(Office f-or Federal 
Contract Compliance). This suggests a 
target for mino'rities of around 80 percent of their presence in the surrounding 
neighbourhood and skiH in question . 

.' 


7. affirmative action 
in Britain 

Positive policies in Britain are very much 
in their infancy and show :little sign of 
rapid growth. This is notwithstandingthe Street Committee Report which said 
" In employment we attach more import· 
ance ultimately to aflkmative action 
which stamps out discrimination than to 
the processing of individual complaints " 
(HMSO, 1967). 

A survey carried out in 1975 found that 
of the 283 .firms questioned at plant level, 
only a small minority, 14, had formulated 
programmes. Even then only three could 
point to specific instances when action 
was taken. The first companie~ in the field 
are special in a particular way, either in 
that they are nationalised {Br·itish Air· 
ways) or local authorities (Camden and 
Lambeth) ; or because they are sub~
idiaries of American multinationals 
(Mars) ; or because they have traditionally 
been liheral employers (Marks and Spencer). 
As Lady Seear said in a lecture 

--(addressing specifically the question of 
equal opportunities programmes for 
women), " At present many organisations 
see no reason to take any action beyond 
perhaps the introduction of a fig leaf of 
an equal opp·ortunities poJicy" ·(De'partment 
of Employment Gazette, HMSO, September 
1979). 

The rather moderate plan (by American 
standards) adopted by the London 
Borough of Camden produced an almost 
hysterical response. This shows a fundamental 
misunderstanding of, or outrightopposi'tion to, the aim in view. ...


There are, however, some encouragingelements on the horizon. 

* Four non-discrimination notices have so 
far .been issued :by the CR.E:, after .formal 
investigation. Three concern access to 
pubs and clubs, the fourth the conduct of 
a children's home. All demand some form 
of positive action to ensure that the same 
ycannot ha,ppen again, and the keeping of 
records to monitor progress. These are to 
be sent for examination to the CRE. If 
used creatively in the employment area, 
they could make up .for the lack of court 
t enforced affirmative action in Britain. 
Undertakings currently being formally in


vestigated inc.Jude the National Bus Company. 


* There is the unenforcea!ble duty imposed 
by Section 71 of the Race Relations 
Act 1976 on local authorities of which 
many seem presently unaJWare. They have 
a duty to ensure that their functions are 
carried out "with due regard to the need 
to eliminate unlawful discrimination, and 
to promote equality of opportunity ". 
* The Women'll Conference of the TUC at 
least sees some element of positive discrimination 
in favour of women as a vital 
strategy in achieving equality. 
There is a so far :little used exemption for 
positively discriminatory training under 
the Race Relations Act (section 37). Section 
38 is broader if more vague. It permits 
preferential access to " opportunities 
for doing work " at any employer's 
establishment. There must be either (a) no 
one or (b) a small proportion of the favoured 
•group in proportion to " all those 
employed ·by the employer there" or in 
comparison with " the area from whioh 
that employer normaUy ·recruits persons 
fur work". 

The provision of equal opportunities pro·
grammes is central to the CRE's new Code 
of ·Practice on Discrimination in Employment. 


Employers may over time adopt such tpolicies 
out of enlightened self interest. It maypartly be a question of " ·getting the ball 
rolling " so that it gradually becomes 
" bad form " and adverse to a company's 
image not to have a programme. 

At the forefront of corporate plans in 
IBritain is that of British Airways. Arising 
from the realisation that there a·re onlyforty coloured cabin crew out of 7,000 
and that only 5 per cent of the very ilarge 
minority staff are in what might 'be called 
prestige jobs, it concentrates on internal 
tra·ining. Special courses are laid on for 
Asian shop stewards, and for white supervisors 
and rnana:gers, in the problemsfaced by coloured workers. Englishlanguage courses are to be pmvided by 
the personnel department. An employee 


18 

has a right to .request a formal ex•plana· 
tion of treatment he feels to be discrimin· 
a tory. 

Another British approach is that taken bythe Polytechnic of North London to redress 
the very low number of West Indian 
teachers. West Indian students without 
sufficient 0 and A level GCE passes are 
offered a preparatory year's study instead 

I of having to take the usual GCEs. 

No British scheme discovered has publicly 
acknowledged •goals and timetao1es, and ·it 
is only by this means that proper review 
can be made of an employer's success or 
otherwise in implementing the rest of the 
plan. As Baroness Seear has said, "To 
make equal opportunities a reality an organisation 
must set out to achieve a 
realistic objective by a given date ". 

The legal means are available to make 
affirmative action a thriving reality in 
Britain: it is the will, and pressure, both 
private and ·governmental which is lack· 
ing. As a first step Government money 
should be made ava:ilwble to assist experi· 
ments in affirmative action plans and 
in particular to preferential trainingschemes. 


8. Bakke: a solomonic 
•

comprom1se 


The philosophical problems of how far 
affirmative action programmes should go 
can best be organised around the leadingAmerican case, Bakke v Regents of the 
Un·iversity of California. H raised i·n a 
particularly stark way the justification or 
otherwise of quotas. Did affirmative 
action which meant .getting someone in, 
inevitably mean excluding another? What 
balance was to be struck between claims 
of equality, justice and meritocracy? Was 
there any .real distinction between " benign 
" and traditional discrimination? 
These questions had been raised before at 
a lower judicial level ; they were answered 
somewhat inconclusively. The only previous 
case to reach the Supreme Court was 
declared " moot " (that is, there was ho 
necessity for judgement). There, De 
Funis, a Jew, claimed to have been discriminated 
against by the University of 
Washington ·Law School hut, by the time 
the case came to trial, he had alreadyspent two years at another university. The 
Weber case, which oa:me later, while vital 
·in that it directly concerned employment, 
in many ways reiterated the arguments of 
Bakke and reached a similar conclusion. 

Many see Bakke's case as the most important 
development in America's race 
policy in the 1970s. While .in the previous 
decade civic rights issues had an enviable 
simplicity, directness and clarityabout them, now there could be no easy 
answers. The traditional liberal consensus 
of Jews, blacks, the poor and the unions, 
which dated back to rhe days of the New 

c Dell'l, was sorely split. 

In 1973 and 1974, Allen Bakke, a white 
Californian of Scandinavian ancestry, applied 
to the University of California's 
Dav·is Medical School. In both years there 
were a hundred places ·in the entry class ; 
he was only considered for 84 of them. 
Applications were assessed under two sets 
of procedures. Under the Regular Admissions 
Programme for which all races were 
ei~gible, the criteria for selection were 
those usual in American universities for 
graduate courses. Medical school entry is 
notoriously competitive, and at Davis an 
applicant with an overaH ·grade point 
avera-ge of 2.5 out of a possible 4 would 
norm·al'ly be reje·cted summariiy. Yet 

under the Special Admissions Programme, 
16 places were specificaUy reserved for 
blacks, American Indians, and persons of 
Asian and Hispanic descent. Applicantswith grades well below 2.5 were admitted 
under this procedure. Bakke had a grade 
point average of 3.5 and felt particula·rlyaggrieved that he was rejected in the same 
years as several candidates with apparently 
much lower scores were admitted. 
In fact the average grade points of students 
admitted to Davis ·in 1973 and 1974 
were 3.49 and 3.29 respectively, both below 
Bakke's. 

He contended in court that the special 
programme contravened the Fourteenth 
Amendment to the us Constitution which 
ensures " equal protection " of tihe law to 
all, regardless of colour ; Article I of the 
California Constitution ; and Title VI of 
the Civil Rights Act 1964, which prohibits 
" discrimination under any program . . . 
receiving any Federal financial assistance". 
The college's arguments in defence 
df their spe·cial programme which 
the Cailifornia Supreme Court rejected, 
were that aU students admitted met the 
minimum educational requirements necessary 
; over and a;bove them, there were 
many otner criteria 'besides formal academic 
ex:ceUence to be considered in 
judging admissions ; one of these was that 
without the ,programme there would be 
a return ro a virtuaHy all white professional 
schoo} ; and furthermore, neither 
Bakke nor anyone else had an inalienable 
right to be admitted to college. 

In the United States Supreme Court, there 
was a bare majority of five Justices out 
of nine for two propositions, although the 
total of five was differently constituted 
for each. Firstly, Bakke should be admitted 
·because the Davis scheme was unconstitutional 
; it ·was a rigid quota which 
deprived the applicant of the right to be1t·reated individually and equally. But,1secondly, a college could consider race _.in 
its admission procedures, where the aim 
was to secure ethnic and .racial diversity in 
the student body. Mr Justice Powell, the 
only judge to accept both findings, approved 
the scheme operated at Harvard 
where race might be considered ·in the 
same way as sporting ability or geo



graphical mix. But, in his view, the court 
could not condone giving compensatory 
treatment per se to •One group at the expense 
of another uruless " the extent o.f the 
injury and the consequent remedy wiU 
have !been judicially, legislatively or administratively 
defined . . . Isolated segments 
of our vast governmenta>J structures 
(such as universities) are not competent 
to make these decisions". 

the care for quotas 

The central arguments for such quotas 
·revolve around the pragmatic .premise that 
they are the only way to achieve racial 
justice, and that the ends justify the 
means. It is a cry almost of desperation, 
that nothing else can work. This was the 
a,pproach of Justice Thurgood Marshall, 
the only black member of the Supreme 
Court in Bakke. He noted that "Measured 
by any benchmark of comfort and 
achievement, meaningful equality remains 
a distant dream for the black ". Without 
active quota based programs, the us 
would .remain a divided society, and the 
courts had recognised this by granting 
such remedies when discrimination was 
proven. It should not annul voluntaryefforts to the same end. 

Quotas should only be temporary: theyare a sort of ~ocietal shock treatment to 
remove, comparatively quickly, the effect 
of years of discrimination. Mr Jug.tice 
Bla:ckmum in Bakke saw them as a once-
and-for-all process: "Within a decade at 
most affirmative action plans will be an 
unnecessary relic of the past". 

Those who argue for quotas as an affirma


tive action strategy reject an analogy with 

the invidious exclusionary criteria of the 

past as "superficia>J ". P11ofessors Cohen, 

Nagel and Scanlon explain their use of 

this adjective by saying that " Blacks 

were excluded because they were thought 

inferior and undesira,ble ; they were really 

discriminated against because they were 

black and it was an insult of the most 

fundamental kind ; under a preferential

poJ.icy, white males are not being told they 

are inferior . . . The aim is simply to 
\ help women and minorities". 

But is it justifiable to use the same means 

I 
of correcting inequality as created it in 
the first place? The Federal judge in the 
case of Erie Human Relations Committee 
v Tullio thought it was. He said, "Like 
the infections of the human body which 
are cured by ·injections of the same 
poison, the anti-toxin of affi·rmative action 
is a justified remedy to the toxin of discrimination". 
If this is to rise above mere 
rhetoric, it must make the point that 
blacks suffered because they were black, 
and any remedy must be on the same 
!basis. 

Since the time of Plato and Aristotle, 
merit has been seen not only as a good 
ground on which to award privileges but 
the best. It is a strong counter-argument 
to quotas that we should not want poorer · 
policemen, firemen, teachers, bankers or 
scientists ·for the sake of some levelling 
goal. The minority community itself 
woilld stand to lose fr.om this as much as 
anyone. 

It wouLd be easier to sustain this contention 
if one were confident that our 
society actually upholds the va:lue ,of 
achievement purely on merit. On the contrary, 
in many instances, there is not even 
the serious pretence of a qualification required 
for positions of substantial power, 
authority and influence. Mr Justice 
Blackmum in Bakke sa,w it as "somewhat 
i·ronic to have us so deeply disturbed over 
a program where race is an element of 
consciousness, and yet to 1be aware of the 
fact, as we are, that institutions of higherlearning ... have conceded preferences 
... to those possessed of athletic skills, to 
children of alumni, to the affluent who 
may bestow their 'largesse on the institution 
". Indeed it is a little known fact 
about the Bakke case itsellf that in addition 
to the 16 places set aside for minorities 
at Davis there were several in the exclusive 
gift of the Dean and reserved for 
the chiLdren of the powerful and rich 
(who, incidentally, would almost certainly 
be white). 

Such practices are, if anything, probably 
even more common in Britain where the 
" old school tie " retains a tenacious grirp.
The closed scholarship system at Oxford 



ttnd Cambridge Universities is a goodexample. It provides a quota for the 
rich and privileged, access being confined 
in the main to the inner circle of established 
public schools. Mediocre but 
wealthy children are thereby shielded 
from open competition. 

Moreover if merit is taken seriously it 
must surely encompass future promise as 
much as past performance. Mr Justice 
Douglas said in the De Funis case that 
"A black applicant who .pulled himself 
out of the ghetto into a junior college maythereby demonstrate a Jev·el of motivation, 
perseverence and ability that would lead 
a fairminded admissions committee to 
conclude that he shows more promisefor more study than the son o'f a rich 
alumus who achieved better grades at 
Harvard". 

The prize at stake was admission to 
medica•! school, and it is surely the case 
that, above a certain level {)f grades and 
scores, other qualities are vital for a good 

e doctor. 

In 1976 the medical school awarded its 
most coveted prize for the student most 
likely to succeed as a doctor, to a student 
of Guyanese origin, who had entered by 
the special admissions procedure. 

The first duty o'f doctors, like all professionaJts, 
is to serve ~he community.
There may be an inherent value in training 
doctors who are more likely to want 
to work in ghetto areas. In the United 
States, where shamefully there is no 
national health service, even more than 
in Britain, there is a chronic shortagedf doctors in such districts. 

stigma and injustice 

The main arguments against quotas 
are essentiaUy moral!, rejec~ing the pragmavism 
O'f the proponents. Many of the 
arguments would not spurn moderate 
goals, although there are some who assert 
that there is liUle but labels to distinguish 
these 'tWo concepts. Bernice Sadler 
sees the difference in noun as "semantic 
. . . so much sophistry or political 

jargon". She thinks, "What is a positive 
goal for one group must be a negative 
quota for its complement, and tllis is 
simpiy a logicai truth ... and especially 
so in a time of scarcity" (Commentary 
Magazine, 1977). 

Most opponents say that the ends however 
commenda!ble do not justify the 
offensi·ve means of quotas. In Bakke, 
Mr Justice Powell rather understated this 
argument when he said, "There is a 
measure of inequity •in forcing innocent 
persons in the respondent's position to 
bear the burden of redressing grievances 
no•t of their making". They disagreefundamentaJtly with Professor Ronaid 
Dworkin's view that " In certain circumstances, 
a policy which puts many inch-
victuals at a disadvantage is nevertheless 
justified because it makes the community 
as a whole better off". Instead, this is 
the worst sort of "vicarious liability"
where the present generation is made 
atone for •the sins of their fathers (TakingRights Seriously, Ducklworth, 1978).
Nathan Glazer thinks that "compensation 
for the past is a dangerous principle " 
on several grounds. Not only is it a particularly 
invidious form df strict liability, 
without any fault on the part ot the 
sufferer at all, but also "It can be extended 
indefinitely and make for endless 
trouble. Who is to deter-mine what is 
proper compensation for the American 
Indian, the black, the Mexican American, 
the Chinese or Japanese? " (AffirmativeDiscrimination, Basic Books, 1976). For 
the black is it to be the billions of dollars 
in reparations once demanded from 
whites by the boxer George Forman? 

~ 

To many, the very idea olf the quotais offensive, and often for sound historical 
reasons. Glazer sums up the 
mood: "There is perhaps nothing more 
destructive to the notion of equality than 
the numerus clausus-t·he quota. Whether 
described as • benign discrimination ' or 
• affirmative action', the racial quotais nonetheless a creator of castes, a ~o· 
I'edged sword that must demean one to 
prefer another". Quotas are also rejected 

~ 
as a blunderbuss solution to problems.
They mean that government, educationtt1 
institutions and employers must involve 


themselves in the ugly business of defining 
and applying strundards based on race 
and ethnricity_ They detract from the ideal 
powerfully expressed by Mr Justice 
Harlan at the end of the last centurythat "The Constitution is color blind". 
Thus Professor Bickle of Ya·le has stated 
that " Racial quotas derogate from the 
human dignity and individuality o'f all 
to whom they are appilied ; they are 
invidious ·in princip1e as in practice . . . 
The history of the racial quota is a 
history of subjugation not bene'ficience ". 

Quotas are based on a concept of group 
rights, while a liberal society generally 
recognises ind'i<vidua:l rights as paramount. 
They emphasise membership of particularracial and ethnic groups, rund accord 
privileges on this basis even thoughaffinity to them is really not at ruH strong.
They thus infringe the goal of an integrated 
society 'in which skin colour will 
have no more significance than eye and 
hair colour. Gordon P. Means acceptsthat "the system of group special rights 
does innvolve considerable social costs 
and is a rather crude strategy for inducing 
social transiformation ". He goes on 
to say, however, that "Where groupidentity and communal and ethnic prejudice 
permeate a society, it is naive, if 
not hypocritica:l, to taak rubout the 
equality oif opportunity based on individual 
achievement". 

Central to Glazer's opposition to what 
he sees as "reverse discrimination " is 
his view that any suggestion df quotas 
has positively harmed desirable practices 
of dealing with racial differences which 
were emerging between 1964 and around 
1972. He points to great progress byblacks in employment a,nd per capitaincome, and enormous strides in political 
power. This, he claims, was achieved by 
a broad consensus of pubaic opinion now 
shattered by the quota issue. And those 
who gain through quotas are not necessariiy 
those most in need. To the question 
"who gains? " he poses the answer, 
"Surely only those members of the specified 
injured groups who are in competition 
for jobs or places in schools, who 
would not have competed successfully, 
and only where that competition is 

a-gainst non-members of such groups.
Those who currently hold satislfactorypositions, those who could compete successfully, 
those not in competition, and 
those competing a:gainst other members 
of injured groups gain nothing". The 
policy at one and the same time excludes 
many poor whites and includes manypTosperous blacks. 

Further it is invidious to pick and choose 
and define protected groups. Why should 
blacks, and not Italians, Slavs and Greeks, 
be considered for special treatment? 

black criticism 

The black community's basic criticism 
of quota based affirmative action concerns 
the enormous sense of stigma 
on the basis of colour. It calls into 
question aH achievement by blacks. The 
black student is seen as treated in a 
certain way because he is black rather 
than because of his quali·ties or lack of 
them as a person. The idea that quotaswill provide necessary role models for 
blacks is dismissed as pure paternalism. 
The ffeading black economist, Thomas 
Sowell, himsel:f a product of the Ha·rlem 
school system, has forcefully expressed 
the sentiment that "Those black people 
who are already competent and who 
could be instrumental in producing more 
competence in the next generation wi.]Jbe completely undermined as black becomes 
synonymous in the minds of black 
and white alike with incompetence and 
black achievement becomes synonymous 
with charity or pay offs ". This was the 
basic message of the only substantive 
judgment in the De Funis (ibid) case. 

T'he noted liberal Mr Justice Douglasthought that the assumption behind 
quotas was that "blacks and browns cannot 
make it on their individua,l merit. 
That is a stamp of inferiority that a 
state is not permitted to p-lace on anyman". This is tokenism of the worst 
kind, and the black promoted thereby 
finds himseLf cut off from his own community, 
yet not quite accepted by white 
society. For these reasons the psychologist, 
Kenneth Olark, views quotas " with 


vehemence and a!bhorrence . . . a perpetuation 
Qif racism, interpreted by the 
black as condescension ". 

There are powerful arguments on both 
sides of this issue. And the solution, for 
Britain as well as the United States, is 
best found in that vague " middle 
gllound" which the nine justices in Bakke 
aVtempted to sketch out. Quotas would 
be divisive, stigmatising and la·ck popular 
support ; which would make them 
counter productive. They violate important 
principles of distributive justice,
consistency, equality and due processof law. Quotas however can be a valuable 
instrument, when formulated voluntarily 
and enforced with g-oodwill. 


9. conclusion 
The debate abQIUt racial issues in Britain 
has over the last 15 years been dominated 
by the immigration numbers game. Now 
the focus must shift to what type of 
multiracial society .we want. 

In 1976 Roy Jenkins descri<bed his ideal 
of "equaiity of opportunity accompanied 
by cultural diversity in an atmoophere 
of mutal tolerance". That finelybala:nced wish remains far from being 
fulfilled. 

It is true that " Civil rights statutes cannot 
build houses, create jobs, remake 
society". They can however serve as a 

Iblueprint and a call to action. The Race 
Relations Act must be amended to reverse 
the burden of proof, facilitate class 
actions, and pPovide a wider exceptionfor compensatory discrimination. 

That is not enough ; the statute is based 
on the premise that most discrimination 
arises out of prejudice; in fact inequality 

1 
is rooted in the very fabric of our society.
It can be best removed by posJtJve aoctJOn, 
voluntary action. In this respect we have 
much to learn from American experience 
although it could be folly to copy it. 
Their comprehensive equal opportunities 
policies tailored to each company, widespread 
throughout industry, and contaming 
firm commitments should be emullated 
here. The unions have a major role 
to play not only in educating shopstewards to lead multiracial workforces 
but in fighting for true affirmative action 
to be introduced by management throughcollective bargaining. With strengthenedindividual enforcement powers, uWised 
more forcefully by a specialist group of 
committed lawyers, employers would 
have to take their equal opportunities 
obligations more seriously. The first 
priority is training, both in language, 
where the present generation is made to 
generally compensate for worse schooling 
in inner city areas. Proba>tionerships, and 
training on the job should be considered 
1ior those without formal quaoJifications.
Flexible goals and targets should be included 
to measure the success of the 
policy. 

In very exceptional cases there are 

f grounds for the use ·of quotaiS. The police 
are an obvious examp-le. Adequate minority 
representation is essential, particula:
rly in areas with a large ethnic minority 
p'Opulation. A recent American judgment 
said that " the visibility of black policemen 
in the community is a decided 
advantage for all members olf the 
public". Incidents like the Bristol riots 
of April 1980 and the continuing bi>tterness 
engendered by "sus" taws make 
this need clearer than ever. 

The Minority Rights Group survey (ibid)
concludes, "The lesson of American 
experience is that massive governmental 
tinvO'l·vement on several fronts is vital 

lto the successful ·operation o.f an anti 
discrimination programme ". The Government's 
massive purchasing powershould be used as a carrot and stick to 
encoura·ge firms to formulate positivepolicies. Companies willing to take initiatives 
to improve race relations should 
be able to call on government money. 
And the government must put its own 
house in order. 

There is the discontent seething below 
the su11face among ethnic minorities. So 
far equality of opportunity has onlyreached the centre of attention when 
violence erupts, and h'as remained there 
only briefly. Now a wholehearted sustained 
commitment is required at all 
levels 1f minorities a·re not to have to 
endure social injustice, political indifference 
and malignant neglect for decades 
more. 


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race and affirmative action 

Riots in :Bristol in April 1980 brought to the surface latent racial tensions 
within British society. The Race 'Relations 'Acts inaugurated fifteen years of 
benign neglect of the hardships endured by minorities. And nowhere is this 
more S'O than in employment. llegal 'Procedure has fettered those complaining 
of discrimination ; the !Commission for ·Racial Equality is in disarray ; 
equal opportuni,ty policies are ,rarely implemented. 

This pamphlet examines some of the more promising initiatives taken in 
America to promote black employment. The !authors tackle the thorny 
problem of quotas by examining the !important Bakke case, and advocate 
the voluntary introduction in :Bri,tain ,of a form of affirmative action. It is 
essential to replace the tradi,tional goa'l ,of equality of 'opportunity with 
substantive equali·ty. This is the only way that :British race relations can 
move from pie~ty to effectiveness. 

fabian society 

The 'Fabian Society exists to further socialist education and research. It Is 
affiliated to the ,Labour Party, both nationally and locally, and embraces all 
shades of socialist opinion within its ranks -left, right and centre. 
Since 1884 the Fabian Society has enrolled thoughtful socialists who are 
prepared to discuss the essential questions of democratic socialism and 
relate them to practical plans for building socialism in a changing world. 
Beyond this the Society has no collective policy. It puts forward no resolutions 
of a political character. The Society's members are active in their 
labour parties, trade unions and co-operatives. They are representative 
of the labour movement, practical people concerned to study and discuss 
problems that matter. 

The Society is organised nationally and locally. The national Society, 
directed by an elected Executive Committee, publishes pamphlets and 
holds schools and conferences of many kinds. Local Societies-there are 
one hundred of them--are self governing and are lively centres of discussion 
and also undertake research. 

November 1980 
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