Editorial
| Published date | 01 June 2000 |
| DOI | 10.1177/135822910000400201 |
| Date | 01 June 2000 |
International
.Tournai
of
Discrimination
and
the
Law,
2000,
Vol.
4,
pp.
93-94
1358-2291/2000 $10
©
2000
A B
Academic
Publishers. Printed
in
Great Britain
EDITORIAL
This issue focuses primarily on the expression of racism in various
forms and the problems of the legal measures available to challenge
it. Ross and MacEwen demonstrate the damaging effects of racist
attitudes and practices. Jenifer Ross examines the burden of proving
discrimination in racial discrimination cases. She considers a number
of tribunal decisions in Scotland to shed light on the reasons for the
relatively low success rates in such cases. She discusses whether a
shift in the burden
of
proof would have a significant impact and
touches on a range of related issues to see why challenging racial
discrimination is so difficult, including the problems facing applicants
in obtaining advice and preparing cases and finding comparators. The
problem of proof has been acknowledged
by
the development of the
use of inferences, as current case law permits but does not compel a
tribunal to draw an inference
of
discrimination where the employer
has failed to provide a satisfactory explanation of the less favourable
treatment. She also identifies differences in the way tribunals view
racism and sexism and considers possible reasons for this. Although
a formal shift in the burden of proof may not be significant in sex
discrimination cases, she argues, in race discrimination cases it may
have a substantial effect
by
compelling tribunals to draw an inference
where the employer cannot produce compelling evidence that there
has been no such discrimination. This would give greater consistency
and certainty, she argues, although clearly it would not solve all the
problem she identifies.
Martin MacEwen critically reviews UK legislation aimed at com-
batting racial harassment, including the Crime and Disorder Act
1998, also focusing specifically on Scotland.
In
addition, he examines
the role of agencies such as the Commission for Racial Equality in
developing appropriate policies. Following the Macpherson Report
there is now a greater government commitment to dealing with
racially aggravated offences. With a new criminal offence of racial
harassment
as
well
as
the incorporation of the European Convention
on Human Rights, there is a potential framework to deal with this
issue. But the problem, as he points out, is that the law on harass-
ment is found in piecemeal provisions and has not been designed for
the circumstances in which racial harassment is often experienced.
Greater cohesion is needed in the application of existing law and
policy. He looks at the nature and extent
of
current measures
as
well
as the UK' s international and regional obligations. While highlighting
the limitations
of
existing legal remedies, MacEwen argues, they are
To continue reading
Request your trial