Before reading these Frequently Asked Questions, please take a look at the legal disclaimer at the foot of this page.
Background
Here at the Free Speech Union we are receiving a growing number of queries about workplace “anti-racism” initiatives. Some people are unhappy with certain training programmes being implemented in the name of “anti-racism” or tackling “bias”. Others have been asked to express their support for the Black Lives Matter movement by their employer or their colleagues.
These individuals are concerned for a number of reasons. Some of them think the training programmes are based on dubious theories – such as Critical Race Theory – that ascribe collective guilt to white people about the slave trade and colonialism and ignore the progress that has been made in race relations in Britain over the past 50 years. Some have reviewed the evidence and found that diversity training can in certain circumstances make people more discriminatory, not less. Some worry that the premise of these programmes is that bias or prejudice is the sole cause of unequal outcomes between different groups, when they believe there are multiple causes of these discrepancies, of which unconscious bias is only one. Finally, some fear that they and their colleagues will feel forced into potentially divisive identity boxes as part of the training they’re being asked to do and there’s a risk their workplace may become “racialised” as a consequence.
These are all perfectly legitimate points of view, but many people are worried that if they voice these concerns – or ask to opt out of the training – then their job, career progression, reputation and workplace relationships will be at risk.
This set of FAQs offers information if you are dealing with such a situation in your workplace. We will be developing these FAQs in the coming weeks and months to address the evolving issues raised by our members.
We recommend that you join the Free Speech Union (FSU) before raising these issues with your employer. The FSU supports people in their right to freedom of expression and belief. We offer advice and advocacy for people who want to participate in these debates in an open, evidence-based way and may take up your case if you face penalties for exercising your lawful right to free speech. Sign up before you do anything else!
We did a good deal of research in the course of compiling this first set of FAQs, and one of the people who helped with that research, a journalist called Carrie Clark, has written up her findings in the form of a briefing paper. Carrie looked specifically at the Implicit Association Test, a diagnostic tool that sits at the heart of most forms of diversity training. It’s worth reading in full, but the short version is that this test has been almost completely discredited in the scientific literature since it was first devised in 1998. You can read a summary of Carrie’s paper here.
Can my employer compel me to undergo Implicit Association Testing (IAT) or Unconscious Bias Training (UBT)?
It depends. An employer must not unlawfully discriminate and must also act reasonably. A request that you undergo IAT or UBT training is likely to be reasonable. A requirement that you must undergo the training could be unreasonable. It is a question of weighing up the reasons your employer wants you to do the training and your reasons for refusing. So, for example, a refusal to participate is more likely to be unreasonable when the reasons for refusing can be fairly perceived as deriving from racist/discriminatory beliefs.
If you have agreed terms of a contract that says your employer can require you to do this training, they are in a stronger position. But it may still not be reasonable to force you to do it against your wishes.
Disciplinary action can be taken against an employee who refuses to comply with a reasonable and lawful management request.
It would be wise to establish initially if the training is recommended or compulsory and, if compulsory, the reasons for this. It may be that the request has been clumsily expressed and the training is not actually compulsory. Any response can then come from an informed position.
One final point: it is worth finding out what the training actually involves before deciding what to do next. In many cases, it will involve nothing more onerous than answering some questions online at your desk for half-an-hour or less.
Can I complain that I think IAT or UBT is itself discriminatory or prejudiced?
If you are concerned that certain forms of IAT or UBT may be discriminatory, you are entitled to share that concern without being penalised. You should express your concern reasonably, so avoid inflammatory language. If you believe that the training materials are unlawfully discriminatory, expressing this concern will give you additional legal protection: under the Equality Act 2010, it is potentially unlawful discrimination (“victimisation”) to subject someone to less favourable treatment for raising a genuine concern about unlawful discrimination.
I don’t agree with some of the claims and concepts being used in “anti-racism” training about the causes of, and solutions to, racial inequality – for example, “unconscious bias”, “white privilege”, “white fragility”, “microaggressions”, “decolonisation”.
Different viewpoints exist about the causes and prevalence of racism and prejudice and the impact they have on unequal outcomes between different groups, and these ideas are open to debate. You are entitled to respectfully question and, if necessary, disagree with the ideas being put forward in particular training programmes or by your colleagues. Any objections you have or suggestions about other approaches to tackling racism should always be made in a constructive, reasonable and respectful manner so that your engaging in debate cannot be objectively considered to have violated the dignity of your colleagues or created a degrading, humiliating or hostile environment.
My employer defends their insistence on me attending IAT or UBT as permitted “positive action” to tackle discrimination. Is this right?
It will depend upon the circumstances of each case, but in general positive action is supposed to be facilitative or voluntary rather than coercive or compulsory, and focussed on groups rather than individuals. The “positive action” exceptions in the Equality Act 2010, which allow for some targeted assistance to groups sharing a protected characteristic such as race or sex, would not necessarily allow an employer to insist on you attending IAT or UBT training. Be warned, though: this hasn’t been tested in court.
My employer has issued a statement to all employees advising us to become “allies” of the “Black Lives Matter” movement (BLM). If I disagree with this, can my employer take action against me?
Your employer should not ordinarily take disciplinary action against you simply for expressing disagreement. You should, however, raise any disagreement or objection in a professional and courteous manner with reference to evidence that informs your view so that you do not risk being disciplined on the grounds that “It’s not what you said, but how you said it.”
On the basis that the promotion of BLM is the promotion of a message related to race, then a point might arise where the continuous promotion of BLM or the repetition of some of its more controversial core messages could be construed as racial harassment. It is of paramount importance that any objection raised is done respectfully and professionally using the appropriate channels. For many individuals there is an important distinction between opposing racism and support for the specific political group called Black Lives Matter. In circumstances where you have made it plain that you do not agree with a particular message being disseminated by this political group or find it objectionable, it may be reasonable to argue that the frequent repetition of this group’s message to you, or insisting that as an employee you must agree to accept it as benevolent, meets the definition of racial harassment under the Equality Act 2010. Moreover, it might be argued in some circumstances that such conduct could amount to a form of “compelled speech” – forcing someone to express a point of view they do not agree with – a concept that was explicitly recognised by the UK Supreme Court in the Ashers “cake” case and which may be unlawful. However, the law in relation to the application of this concept in the workplace remains undeveloped. If an Employment Tribunal accepts that your employer’s conduct towards you objectively amounts to harassment, neither the employer’s good intentions nor the views of any of its other employees presents a defence. The position here is analogous to insisting on IAT or UBT where it is inherently related to a message about race.
Alternatively, your objection to being asked to promote BLM or declare yourself an “ally” of BLM might not be rooted in your disagreement with some aspects of BLM’s agenda but because you are being asked to endorse an overtly political message and you feel that is not appropriate in your workplace. It could well be that you endorse every aspect of BLM’s agenda, but nevertheless do not think it is right that you should be expected by your employer to endorse BLM because you believe politics and work should be kept separate. In some workplaces, such as schools, it is expressly forbidden by law for your employer to endorse a particular political point of view. For instance, s.406 of the Education Act 1996 prohibits “the promotion of partisan political views in the teaching of any subject in the school” and s.407 says that “where political issues are brought to the attention of pupils” they should be “offered a balanced presentation of opposing views”.
I am being disciplined at work for saying “All Lives Matter”. What’s the best way of defending myself?
Feelings often run high on all sides and finding common agreement may be extremely difficult. It is therefore essential that any views expressed in the workplace are done so respectfully and in a professional manner. It may be helpful to contextualise the statement “All Lives Matter” and explain what you mean by this and the reasoning behind it. However, it is likely that in the majority of employment situations coming to an agreed view on every aspect of BLM’s agenda will not be necessary or relevant to your work. You can make clear that the statement “All Lives Matter” is not to suggest that black people have not suffered from or do not continue to suffer from discrimination or that their suffering is any less important than anyone else’s.
Depending on your views and the circumstances, there are different responses you could give which should not give your employer any basis for disciplining you:
- “All Lives Matter” is simply a statement of equality regardless of skin colour, in line with the teachings of the Rev Dr Martin Luther King, Jr.
- This position of “equality for all regardless of colour” mirrors the concepts set out in the Universal Declaration of Human Rights and the European Convention on Human Rights.
I want to be constructive. Can I suggest alternatives to IAT and UBT?
Practical measures to tackle explicit bias, like anonymous application processes and blind evaluations, are arguably more effective in tackling workplace discrimination than approaches based on rooting out “implicit” bias. Alternative forms of training exist and you may wish to constructively draw these to the attention of your employer:
CPD Equality and Diversity Course: Basic training on the terms of the Equality Act.
Open Mind Platform: A free, interactive, psychology-based platform designed to foster mutual understanding across a variety of differences.
The Theory of Enchantment: Diversity training inspired by the thinking of the Rev Dr Martin Luther King, Jr.
New Discourses Consulting Services: Advising businesses on diversity, equity and inclusion.
The Equiano Project: A universalist alternative to identity-based diversity training.
What about Human Rights and Freedom of Speech?
You may wish to assert the importance of your right to free speech and privacy in the course of any discussion with your employer. Although not straightforward and often contested, human rights legislation protects the right to hold opinions, to impart or receive information and ideas, and to remain silent or not be compelled to express a view one does not believe. However, these protections are qualified in their reach and become even more restricted when disputes occur in relation to the workplace.
Article 10 of the European Convention on Human Rights (ECHR) includes the right to hold and express opinions as well as to receive and impart ideas to others. As a qualified right, there are some circumstances in which a breach of your individual Article 10 rights may still be justified.
Misuse of social media may amount to a fair reason for an employer to dismiss you, even if what you’ve said has been said outside office hours and in a purely personal capacity. In general, case law allows an employer to dismiss an individual for conduct outside of the workplace.
Social media policies usually reflect the broad concerns of employers around:
- Confidentiality – the risk that confidential information is posted online
- Reputational Risk – harming their company’s reputation by you being an employee and making controversial comments
- Discrimination – avoiding claims for harassment made against their company based on your social media comments
Most employers will have a social media policy which all employees should familiarise themselves with. But it’s important to know that your company’s social media policy may extend to what you say in a purely personal capacity, both in practice and in law.
Further Reading
“Psychology’s Favourite Tool for Measuring Racism Isn’t Up to the Job” by Jesse Singal.
“Why Doesn’t Diversity Training Work? The Challenge For Industry and Academia” by Frank Dobbin and Alexandra Kalev.
“Implicit Bias Training Doesn’t Work” by Tomas Chamorro-Premuzic.
“The Good, the Bad and the Ugly of Implicit Bias” by Cheryl Pritlove, Clara Juando-Prats, Kari Ala-Ieppilampi and Janet A Parsons.
“The World is Relying on a Flawed Psychological Test to Fight Racism” by Olivia Goldhill.
“Why I refuse to take part in the Orwellian ‘re-education’ courses on ‘unconscious bias’ that tell ordinary people they are racists” by Ben Bradley, MP.
“Unconscious bias tells us nothing about racism” by Inaya Folarin Iman.
“A question of equality” by Claire Fox.
“Mandatory Implicit Bias Training Is a Bad Idea” by Lee Jussim.
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