Racism is unconscious and subconscious, this was the verdict of court
of law of tribunal in UK. I want to know complete details about the
case. Thanks

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Request for Question Clarification by justaskscott-ga on 01 Nov 2002 15:11 PST

I have found several UK cases that hold that racism can be unconscious
or subconscious.  I doubt that any case holds that racism can *only*
be unconscious -- after all, there are undoubtedly people who are
conscious of their racial prejudices.  But nevertheless, I should ask:
Are you looking for a case that holds that racism is *always*
unconscious or subconscious?

Also, do you know any details about the case you're looking for:
approximately when the decision was issued, where the court or the
parties were located, what the case involved, etc.?

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Clarification of Question by salcom-ga on 02 Nov 2002 01:04 PST

In the case the alleged respondent said that he treated/behaved
normally in dealing with the with the person, who brought the
complaint, as he would in any other situation/individual. On this the
court or employment/appeal tribunal ruled out that racism could be
unconscious or subconscious, meaning that the person carrying out the
action may not be aware of his racist attitutes.

I am afraid that I don't know the exact location of the the case. A
fake memory tells me probably Manchester around three or more years
ago. The case received a lot of publicity in the UK press. If I can be
of any more assistance, please let me know. Thank you for your efforts
so far to find answer to my question.

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Request for Question Clarification by justaskscott-ga on 02 Nov 2002 22:26 PST

Does this case sound right? -- The complainant alleged that he
suffered racial discrimination when he was not appointed to a position
at London Regional Transport.  The complainant had filed claims of
racial discrimination against L.R.T. in the past, and L.R.T.
interviewers were aware of this when they interviewed him for the
position.

This seems to be the leading case on the issue of unconscious racism. 
The final decision, which discusses this issue at length, was made in
1999.

There was also a similar decision in 2000, in an employment case
involving the refusal of the West Yorkshire police force to give an
employee a reference in his application to the Norfolk police force. 
However, the final decision in 2001 went against the complainant. 
Given the later date and the ultimately unfavorable decision, I assume
that this is not the case you're looking for.

In any event, please let me know if one of these cases sounds right,
or, if these details do not jog your memory, whether I should answer
the question anyway (discussing the first case and briefly mentioning
the second).

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Clarification of Question by salcom-ga on 03 Nov 2002 14:00 PST

Yes please do so, if the first case eventual ruling was what I am
looking for i.e. racism could be unconscious or subconscious. Please
do mention case number, name of opposing parties in the case, dates,
court/tribunal and judge etc. incharge of the case Also please discuss
the second case. Thanks for your input.

Please note that I am not licensed to practice law in the United
Kingdom.  I am a researcher for Google Answers, so all I can do is
give the results of my research, not provide expert legal commentary. 
I will do the best I can, as a layperson, to set forth the information
you seek.  You should consult with someone licensed to practice law in
the UK for a professional opinion on these cases.
 
I happened to know about a good legal database for UK cases, the
British and Irish Legal Information Institute (BAILII), at
http://www.bailii.org/ .  I searched for various combinations of these
terms on BAILII:
 
unconscious 
unconsciously 
subconscious 
subconsciously 
racism 
racist 
racial 
race 
prejudice 
discrimination 
bias 
 
One case kept coming up, in some form or another: Swiggs and Others v.
Nagarajan [1999] UKHL 36; [2000] 1 AC 501; [1999] 4 All ER 65; [1999]
3 WLR 425 (15th July, 1999).
 
http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1999/36.html
 
[Related decisions are reported at
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1997/2671.html
and http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1997/2671.html
.  I found these by searching for nagarajan on BAILII.  The search
also shows both decisions in Khan.]
 
The other case I found, which cites the House of Lords decision in
Nagarajan, is Chief Constable of West Yorkshire Police and ORS v.
Raham Noor Khan [2000] EWCA Civ 53 (24th February, 2000):
 
http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1999/36.html
 
I have previously described the basic scenario of each case.  More
specifically, in Nagarajan, there are two decisions written by members
of the majority.  The decision of Lord Nichols of Birkenhead contains
a three-paragraph discussion starting with: "I turn to the question of
subconscious motivation."  Among other things, Lord Nichols of
Birkenhead concludes that "members of an employment tribunal may
decide that the proper inference to be drawn from the evidence is
that, whether the employer realised it at the time or not, race was
the reason why he acted as he did."  Lord Steyn also considers this
issue under the heading "The section 2(1) point", and concludes that
"conscious motivation is not required for direct discrimination" under
section 1(1)(a) or 2(1) of the Race Relations Act 1976
 
In Khan, the Supreme Court of Judicature, Court of Appeal (Civil
Division) cites and agrees with Nagarajan.  However, the decision was
reversed by the House of Lords, not apparently because of a
disagreement with the principles of Nagarajan, but because the
unfavorable treatment did not occur because of activity protected by
the Race Relations Act of 1976.  However, you may want to read this
case carefully for its interpretation of Nagarajan, just to check on
this.
 
Chief Constable of West Yorkshire Police v. Khan [2001] UKHL 48 (11th
October, 2001)
http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2001/48.html
 
I hope that this information is helpful to you. 
   
- justaskscott-ga

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Request for Answer Clarification by salcom-ga on 04 Nov 2002 14:53 PST

Thank you very much for bringing the two cases to my notice. I am
afraid that none of them rules that racism occured due to unconscious
or subconcious attitudes( the case I am looking for). You may like to
try again. Thank for your input so far.

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Clarification of Answer by justaskscott-ga on 04 Nov 2002 15:27 PST

First of all, I apologize; I accidentally repeated the link to the
Nagarajan case, rather than post a link to the Khan case.  The correct
link is http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2000/53.html
.

I think that in Nagarajan, Lord Nichols of Birkenhead -- especially in
the three paragraphs I mention -- does hold that racism (treating
someone less favorably because of race) can be unconscious.  He
emphasizes that cases of "unrecognised prejudice" are covered by this
Act.  Likewise, Lord Steyn, while making a more-technical statutory
argument, comes to a similar conclusion: proof of "conscious
motivation" is not necessary to show racial discrimination.

Indeed, as Khan (whose citation I have now correctly provided),
explains with respect to Nagarajan:

"The House of Lords held, as appears from the headnote of that case,
that a finding of direct discrimination on racial grounds under s.1(a)
of the RRA 1976 did not require that the discriminator was consciously
motivated in treating the complainant less favourably. It was
sufficient if it could properly be inferred from the evidence that,
regardless of the discriminator's motive or intention, a significant
cause of his decision to treat that complainant less favourably was
that person's race."

(Paragraph 22 of Lord Woolf's opinion.)

Hopefully this explanation will clarify my answer.  I can provide
further clarification, if you would like.  (Perhaps we are in the
situation that judges often face, where one judge sees a case one way,
and one sees it the other way.  Hopefully, I have persuaded you to see
these cases my way.  If not, perhaps you can show the decisions to a
British legal expert (which I am not) and see what he or she thinks.)