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A recent case, Nagarajan v London Regional Transport HL Times 19-Jul-99, demonstrates the need for employers to be careful to avoid the pernicious and unconscious effects of racism in their selection procedures.
The applicant had previously pursued a successful claim for racial discrimination against the defendant. He applied again for a job, but did not succeed. He complained again, suggesting that a decision which had been affected by his earlier successful claim of discrimination, was itself victimisation for making that claim. He was being punished for having presented and succeeded in a claim. It was accepted that the selection panel had not been consciously affected by the earlier award, but he suggested that they had been unconsciously affected. It was held that the result of this unconscious bias was sufficient to constitute victimisation.
It is unusual for such case to reach the House of Lords, and this case must be given full weight by both employers and practitioners. It demonstrates also the difficulties faced by those suffering discrimination. Those who think of making a complaint often fear, with some justification, that the consequences of succeeding can be worse than the consequences of doing nothing. Decisions can be made about them which are in fact discriminatory, even though such discrimination was not actually in the minds of the people making the decision. This is a judicial recognition, at the highest level, of what has come to be called institutional racism.
Employers in particular must take great care to ensure that discriminatory practices are rooted out from their establishments, and that clear policies are drafted and implemented properly.
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