This important decision emphasises that it can be direct discrimination to stereotype people, even if the stereotype has some truth to it. An individual should not be assumed to hold characteristics associated with the group, whether or not most members of the group do indeed have such characteristics,
House of Lords, 2004. Full judgment: bailii.org.
The case concerned UK immigration control at Prague airport. The vast majority (if not all) Czech nationals applying for asylum were Roma. Few of these applications were successful – only about 6% at the beginning of 2001. By agreement with the Czech authorities, UK immigration intermittently operated checks at Prague airport before people boarded flights to the UK. Leave to enter was granted to passengers who satisfied officers that they intended to visit the UK for a purpose within the Immigration Rules. Others were refused leave to enter, including passengers who said that they intended to claim asylum in the UK or who the officers concluded were intending to do so. If officers refused leave to enter, this effectively prevented the person from boarding the plane to the UK.
Immigration officers knew that the reason why they were stationed in Prague was to stop asylum seekers travelling to the UK, and that almost all Czech asylum seekers were Roma. Accordingly officers subjected Roma to longer and more intensive questioning than others, and required them to provide more evidence to substantiate their claims. Roma were 400 times more likely than non-Roma to be refused permission to enter the UK.
Held by the House of Lords: UK immigration officers had directly discriminated against Roma seeking to travel to the UK, contrary to race discrimination legislation.
Baroness Hale (with whose reasons at least two of the other four Law Lords agreed) said at paragraph 74:
“If direct discrimination of this sort is shown, that is that. Save for some very limited exceptions, there is no defence of objective justification. The whole point of the law is to require suppliers to treat each person as an individual, not as a member of a group. The individual should not be assumed to hold the characteristics which the supplier associates with the group, whether or not most members of the group do indeed have such characteristics, a process sometimes referred to as stereotyping. Even if, for example, most women are less strong than most men, it must not be assumed that the individual woman who has applied for the job does not have the strength to do it. Nor, for that matter, should it be assumed that an individual man does have that strength. If strength is a qualification, all applicants should be required to demonstrate that they qualify.”
The House of Lords considered that the racial stereotyping – here of Roma – was illegal even if the stereotype had some truth to it (paragraphs 81 and 82 in Baroness Hale’s judgment):
81. The Court of Appeal accepted that the judge was entitled to find that the immigration officers tried to give both Roma and non-Roma a fair and equal opportunity to satisfy them that they were coming to the United Kingdom for a permitted purpose and not to claim asylum once here. But they considered it ‘wholly inevitable’ that, being aware that Roma have a much greater incentive to claim asylum and that the vast majority, if not all, of those seeking asylum from the Czech Republic are Roma, immigration officers will treat their answers with greater scepticism, will be less easily persuaded that they are coming for a permitted purpose, and that ‘generally, therefore, Roma are questioned for longer and more intensively than non-Roma and are more likely to be refused leave to enter than non-Roma’…. Simon Brown LJ [in the Court of Appeal], with whom Mantell LJ agreed, held that nevertheless this was not less favourable treatment, or if it was, it was not on racial grounds. The Roma were not being treated differently qua Roma but qua potential asylum-seekers. Laws LJ considered it ‘inescapable’ that this was less favourable treatment… He also concluded … that this was discrimination:
“One asks Lord Steyn’s question [in Nagarajan v London Regional Transport …]: why did he treat the Roma less favourably? It may be said that there are two possible answers: (1) because he is Roma; (2) because he is more likely to be advancing a false application for leave to enter as a visitor. But it seems to me inescapable that the reality is that the officer treated the Roma less favourably because Roma are (for very well understood reasons) more likely to wish to seek asylum and thus, more likely to put forward a false claim to enter as a visitor. The officer has applied a stereotype; though one which may very likely be true. That is not permissible. More pointedly, he has an entirely proper reason (or motive) for treating the Roma less favourably on racial grounds: his duty to refuse those without a claim under the Rules, manifestly including covert asylum-seekers, and his knowledge that the Roma is more likely to be a covert asylum-seeker. But that is irrelevant to the claim under s1(1)(a) of the 1976 Act [direct race discrimination].”
82. On the factual premises adopted by the Court of Appeal, this conclusion must be correct as a matter of law. The Roma were being treated more sceptically than the non-Roma. There was a good reason for this. How did the immigration officers know to treat them more sceptically? Because they were Roma. That is acting on racial grounds. If a person acts on racial grounds, the reason why he does so is irrelevant…. The person may be acting on belief or assumptions about members of the sex or racial group involved which are often true and which if true would provide a good reason for the less favourable treatment in question. But ‘what may be true of a group may not be true of a significant number of individuals within that group’…. The object of the legislation is to ensure that each person is treated as an individual and not assumed to be like other members of the group. As Laws LJ observed… [in the Court of Appeal]:
“The mistake that might arise in relation to stereotyping would be a supposition that the stereotype is only vicious if it is untrue. But that cannot be right. If it were, it would imply that direct discrimination can be justified;…”
My comment
This decision supports the view that it is direct discrimination for an employer to assume that a person who stammers could not do a particular job satisfactorily, without looking at their individual abilities.
