The context to challenging discrimination against ethnic minorities and migrant workers at work

Abstract

German

French

Over the last decade trade union responses to racism and discrimination against ethnic minority and migrant workers have often reflected two competing discourses, one promoting anti-discrimination legislation and the other, xenophobia and anti-immigrant sentiment. The Racial Equality Directive was adopted in 2000 to enter into force in 2003. Yet 11 September 2001 unleashed a tide of anti-Muslim prejudice and 10 years later, in the aftermath of the 2008 economic crisis, a study by the EU Agency for Fundamental Rights found that the Directive had had little impact on underlying levels of racism. In this article initial criticisms of the Directive are revisited. The impact of rising numbers of migrants and of slightly higher public intolerance of the ‘racialized outsider’ are considered. The article argues that racism is playing a growing role in justifying unequal treatment in employment. Its presence makes the solidarity needed to ensure proper social regulation of the increasingly ‘open’ European economy more difficult to achieve.

Keywords

Racism racialized outsider Racial Equality Directive unequal treatment equal outcomes trade unions

This issue of Transfer presents current research and debate around the trends and challenges of discrimination on grounds of ethnicity and national origin at work. These are matters of particular concern for trade unions in a period when economic crisis and austerity have facilitated the rise of xenophobic and populist parties scapegoating ‘the Other’, whether national minorities or migrants from other EU countries or beyond.

In this introduction we outline the changing context of anti-discrimination measures, as well as the rising immigration and levels of intolerance that form the background to the questions raised by the articles in this issue. We start by recalling the optimism engendered by the adoption 15 years ago of the Racial Equality Directive (2000/43/EC) and its call for social dialogue to deal with racism at work, but also the criticism voiced at that time. We go on to examine a key component of the post 11 September 2001 context: the increasing political sensitivity to concerns about integrating diverse cultures and immigration which have been leveraged by populist ‘national preference’ parties. Raising immigration barriers and stoking up prejudice against the ‘racialized outsider’ (Virdee, 2014) help place responsibility for the day-to-day problems faced by ‘national’ workers – from rising income inequality to lower levels of welfare support and higher unemployment – on the ‘minority’. We end by considering the relationship between discrimination based primarily on appearance, and discrimination driven largely by stereotyping based on different ‘national origins’. This is important for understanding the complex ways in which discrimination is manifested at work and the strategies developed by trade unions and employers to deal with it, and acts as the basis for the selection of articles for this special issue.

Challenging discrimination

Fifteen years ago the European Union adopted the Racial Equality Directive (2000/43/EC) combating discrimination ‘on grounds of race or ethnic origin’ in employment and other areas, including social security, health care, education and housing. It followed this with the Employment Equality Directive (2000/78/EC) outlawing discrimination at work on grounds of age, disability, religion or sexual orientation. The directives were greeted with considerable optimism by many European academics. Fredman (2001) asked whether ‘these new provisions constitute the start of a new era for equality law?’, while Bell (2002: 284) argued that the Racial Equality Directive presaged ‘a new category of European “social law”… broader in scope than European “labour law”’, calling it ‘one of the most significant pieces of social legislation recently adopted by the EU’. The ETUC (European Trade Union Confederation), which has 82 national trade union confederation affiliates, lobbied strongly in support of the Directive.

One reason for these initial positive assessments was that the RED contained four significant elements: a requirement for EU Member States to create specialized equality bodies; the shift in the burden of proof to the defendants in discrimination lawsuits; support for dialogue with non-governmental organizations involved in the fight against discrimination; and, most important for the trade unions, the obligation for Member States to promote social dialogue between employers and employees to further equal treatment and to encourage agreements between the social partners on anti-discrimination rules. These measures were to be transposed into national law by 2003. By 2005 this had largely taken place (by 2007 in the new Member States).

Yet concerns were already being expressed about the Directive’s scope. In 1995 the ETUC had persuaded UNICE (Union of Industrial and Employers’ Confederations of Europe and the forerunner of BusinessEurope) and CEEP (the European Centre of Employers and Enterprises providing Public Services) to sign the joint social partner ‘Florence Declaration’. This defined racial discrimination as ‘comprising any distinction, exclusion, restriction or preference based on a person’s real or perceived race, religion, ethnic or national origin or colour, which has the effect of nullifying or impairing equal treatment in employment or occupation’ (our highlighting, UNICE et al., 1995). However, although covered by Article 48 of the EC Treaty, as amended by the Treaty of Amsterdam, protection against ‘national origin’ discrimination was missing in the Racial Equality Directive, an omission the ETUC ‘regretted’ (Jefferys and McKay, 2012: 109).

While the Directive outlaws ‘any direct or indirect discrimination based on racial and ethnic origins’ in relation to nationals of third countries, it goes on to state that it ‘does not cover differences of treatment based on nationality and is without prejudice to provisions governing the entry and residence of third-country nationals and their access to employment and to occupation’. This rather complex formulation has permitted different readings of the Directive. In some countries its scope is primarily defined around the need to prohibit discrimination against migrant workers (who are only sometimes ethnically or racially ‘visible’). In other countries, it is defined as only concerning equality for workers whose ‘otherness’ is defined by visible difference.

The Directive was criticized by Hepple (2004: 1) both because of its assertion of national ‘territorial supremacy’, with each Member State able to transpose the Directive in its own way, and because the RED did not ‘provide for the enforcement of positive social, economic and cultural obligations’. His argument (2004: 13) was that, while it was ‘an important symbolic and educative achievement’, little would change without proposing positive discrimination to remedy ethnic penalties. Lahuerta (2009) also raised the concern of ‘territoriality’, suggesting that the two Equality Directives effectively helped create a dual labour market by denying employment rights to non-EU migrants or non-nationals, thereby fuelling the growth of the informal labour market. Developing this criticism further, Basso (2010) argued that by adopting anti-terrorist discourses and amalgamating them with tighter immigration controls both the EU and its Member States have been central in developing Islamophobia and in constructing an ‘us’ and ‘them’ hostility and contempt for migrant workers. The result, a more malleable and dependent migrant labour force and an even less united trade union movement, makes the adoption of inclusive strategies more problematic.

These criticisms proved realistic. Research conducted between 2003 and 2005 in five European countries (Belgium, Bulgaria, France, Italy and the UK), found that discrimination at work against ethnic and national minorities was widespread and that the trade unions at workplace level had not used the RED to challenge it (Jefferys, 2007; Jefferys and Ouali, 2007). A Fundamental Rights Agency 27 EU Member State study between 2008 and 2010 similarly found very few collective agreements explicitly acknowledging the RED. It suggested that many ‘managements had not gone much further than paying lip-service to it’ (Jefferys and McKay, 2012: 67). While the study detected large differences in awareness of the Directive between eastern and western European trade unions, it noted that the unions nearly everywhere faced ‘the challenge…to reflect ethnic diversity in their ranks and convince their membership that real equality would benefit all workers’ (Jefferys and McKay, 2012: 10). Wrench (2015:) concludes that ‘an awareness of anti-discrimination legislation and recognition of the existence of the problem of racism and ethnic discrimination in employment’ are ‘necessary prerequisites’ to trade union responses.

In the slowly emerging less tolerant post-9/11 ‘Fortress’ Europe and the post-2008 crisis period, one country after another introduced ‘stricter conditions and sanctions for people seeking to obtain a residence permit or citizenship’ (Van Avermaet, 2008: 32). From raising new obstacles to the inward migration of third-country nationals, it was only a short step to challenge the free movement of labour within the EU itself. In 2013 the UK Prime Minister wrote: ‘if people (EU nationals) are not here to work – if they are begging or sleeping rough – they will be removed. They will then be barred from re-entry for 12 months, unless they can prove they have a proper reason to be here, such as a job…We are not the only country to see free movement as a qualified right’.¹

The combination of the RED’s tacit exemption of discrimination against ‘non-nationals’ being described as ‘racism’, enhanced restrictions on the entry of ‘foreigners’ from non-EU countries and EU enlargement raised new political and legal issues about the setting of wages and working conditions for ‘foreign’ workers, as witnessed by the ‘Polish Plumber’ debate during the French referendum on the Constitutional Treaty, the Irish Ferries dispute, the strife over the Services Directive, the quartet of European Court of Justice (ECJ) decisions and the dispute over employing Italian and Portuguese workers at the Lindsay oil refinery in Britain. Dølvik and Visser (2009: 491–492) suggest these ‘ignited a conflict over workers’ rights in the context of cross-border mobility’. The quartet of ECJ rulings in the Viking, Laval, Rüffert and Luxembourg cases were widely seen as privileging ‘the freedom of provision of services and the freedom of establishment of undertakings over a “social dimension”’ (Woolfson et al., 2010: 334). Dølvik and Visser (2009: 492–493) argue that the result supports ‘reverse discrimination’ through introducing limits on ‘Member State autonomy and the fundamental right to strike’, and by the acceptance of ‘unequal treatment of foreign and domestic firms’.

The tension between a broadly regulatory and a broadly deregulatory approach is clear. On the one hand, in 2000 the Racial Equality and Employment Equality Directives aimed to ensure the benefits of the European social model were shared by all, effectively creating a common standard within each EU Member State to protect workers from being discriminated against. They reflected one of five areas of EU social policy, that of ‘framing labour market regulations concerning workers’ rights and social dialogue’ (Marginson and Sisson, 2006: 37), and had the clear intention of raising the wages and improving the working conditions of those being treated unequally through extending their rights. On the other hand, there is continuing pressure to deregulate all European markets, including labour markets, and to ensure Europe adapts to the still globally dominant US model of managerial power relations and its inherent inequalities (Carpenter and Jefferys, 2000). The 2006 Services Directive (2006/123/EC) asserts that national governments are ‘generally prohibited from imposing restrictions upon incoming service providers’.² Not only do the ECJ rulings enable service providers to use non-national workers to undercut collective agreements, but the current negotiations over an EU-US Transatlantic Trade and Investment Partnership seek explicitly to create ‘a more integrated transatlantic marketplace’ such that ‘by aligning their domestic standards, both sides could set the benchmark for developing global rules – benefiting EU and US exporters, and the wider global trading system’.³

The EU’s Fundamental Rights Agency undertook a major review of the impact of the two Equality Directives of 2000, publishing its conclusions in 2013. Itself an EU body, it did not address the open tension over which way the European social model was heading. It did however find that, as a result of the legislation’s ‘shortcomings’, ‘discrimination remains part of the daily experience of too many Europeans’. It believed these could be overcome through five main actions: national authorities and bodies such as trade unions and employers should do more to raise the public’s attention; dispute settlement bodies should be able to issue effective sanctions (it added ‘Trade unions have highlighted that sanctions, in the context of employment discrimination, are often easily absorbed by perpetrators, and this raises questions about the adequacy of available remedies’); EU Member States should systematically collect ‘appropriate information that supports the formulation of anti-discrimination policies’; Member States should take ‘a preventive, rather than reactive, approach to discrimination and…adopt…positive action measures’; protection against discrimination should not be asymmetric between grounds and countries, it should be harmonized to provide a ‘uniform level of protection’ and supported by both legislative adjustments and non-legislative measures (FRA, 2013: 3–5).

Fifteen years after the Racial Equality Directive was adopted, and 10 years after it should have been implemented, and in a context of rising levels of racist crime (FRA, 2014), the EU’s own monitoring agency is calling for additional and more robust action. To set in context why such a call is necessary it is important to understand the weaknesses of the RED. It does not require positive action measures to remedy unequal treatment (Hepple, 2004), it relies upon individual legal complaints rather than effective collective rule-making and redress, and it does not highlight discrimination on grounds of nationality. It advises social dialogue on racism but does not insist upon or monitor it. In hindsight, perhaps the biggest weakness of all, however, is the RED’s failure to understand that racial discrimination at work is about power relations, not simply the likes and dislikes of certain individuals. It is the reconfiguration of these power relations in the interests of the ‘free market’ that leads to conscious and unconscious decisions that subordinate definable groups of the ‘Other’ to second-class treatment (Erel, 2007). It is in this context that Dølvik and Visser (2009: 508) concluded that European Court of Justice rulings were ‘doing distributional damages and distorting power balances within countries’.

The Directive’s lack of impact means it largely failed not only in effectively confronting racism against existing subordinated groups, but also in acting decisively against the construction of intolerance towards new subordinated groups. Nowhere have governments or employers been required systematically to involve the trade unions in collective bargaining or social dialogue to combat racism and xenophobia at work. These failings have become more serious as Europe’s labour markets have not only experienced the shock and the aftermath of the 2008 financial crisis, but have also undergone major structural changes resulting from EU enlargement and rising demand for extra-EU workers.

Growing intolerance

The argument that there was ‘too much immigration’ into and within Europe was already being voiced when European unemployment was falling. In some countries the media discourse primarily targeted ‘asylum-seekers’ and ‘refugees’; in others a major target was ‘le plombier polonais’ and central and eastern European workers. In many parts of Europe, even before 11 September 2001, higher levels of blatant prejudice were being expressed against Muslims than against other population sub-groups (Strabac and Listhaug, 2008). After 2001, hostility against Muslim communities increased in a number of EU countries (Allen and Nielsen, 2002; Sheridan and Gillet, 2005).

A Eurobarometer poll conducted in the 25 Member States in spring 2006 (2007: 26) found 14 per cent of respondents viewing ‘immigration’ as one of ‘the two most important issues facing ‘their country’⁴, with the figure much higher in the EU-15 countries – mainly former colonial countries or newly migrant- or refugee-receiving countries. This was at a time when total EU unemployment was falling (from 20 million in 2000 to 16 million at the end of 2007) while the numbers of non-national-origin migrant workers aged 15 to 64 in employment within the EU-27 Member States were rising (from 7.6 million to 13.4 million), up from 3.5 per cent to 6.2 per cent of total employment.⁵ The timing of this 2006 poll is significant, since it demonstrates that in most of Europe anti-immigration concerns were present independently of any rational judgement about levels of unemployment (McCormick, 2012).

By the end of 2012, with unemployment at 26 million, both the anti-migration and the overlapping anti-globalization discourses became still louder. The number of European workers working in an EU Member State other than their home country had risen from 5.7 million in 2008 to 6.5 million while the number of third-country-origin migrant workers in Europe had fallen marginally from 8.7 million to 8.5 million. Overall the numbers of ‘foreign’ workers within EU-27 labour markets rose from 14.4 million to 15 million, with the average employment share of ‘other’ EU citizens rising from 2.6 per cent to 3.3 per cent and that of extra-EU migrants from 4 per cent to 4.3 per cent. In the UK, the proportions of other EU citizens in employment rose from 3.8 per cent to 5.1 per cent, while those of extra-EU migrants fell slightly, from 4.3 per cent to 4.1 per cent.

The media discourse had also moved on: from denouncing ‘refugees’, a term implying a certain rational motivation behind a chosen mobility, it now focused on ‘gypsies’, ‘illegal immigrants’ or just ‘immigrants’. Discriminatory attitudes and behaviour targeting Muslims have become more common (Zick et al., 2011). Gallup polls in 2011 found 28 per cent of Italian, 30 per cent of French, 34 per cent of German and 38 per cent of British respondents reporting that ‘Western societies do not respect Muslim societies’.⁶ Both negative media images and right-wing political beliefs appear to play a role in this widespread stereotyping (Ogan et al., 2014). A Eurobarometer poll (2011: 21) reported that by 2010 ‘concerns about immigration have risen considerably…especially in Austria (27 per cent, +13), Belgium (27 per cent, +11), Germany (16 per cent, +11) and the Netherlands (17 per cent, +7)’. By 2013, the 15 million intra-EU and extra-EU migrant workers together made up 7 per cent of the 212 million EU-28 workforce.

The identification of ‘immigration’ as an issue of national concern has been, alongside declining trust in the EU,⁷ a significant factor contributing to the re-emergence of ‘national preference’ political parties. The European Parliamentary elections of May 2014 showed that millions of Europeans were prepared to vote for political parties that openly stand for ‘national preference’ and directly or indirectly articulate feelings of hostility towards foreigners, particularly those of a different colour skin or different religion. In France, the National Front secured 25 per cent of the vote, while Italy’s Northern League achieved 6 per cent and Denmark’s Dansk Folkeparti 27 per cent. In the Netherlands and Austria, the right-wing populist parties attracted 13 per cent and 20 per cent respectively. High scores for other xenophobic (or openly racist) parties were recorded in Hungary (15 per cent), Lithuania (11 per cent), Greece (9 per cent) and Sweden (10 per cent). Two populist protest parties with xenophobic leaders and/or followers also did well: UKIP got 28 per cent in Britain and the Five Star Movement 26 per cent in Italy.

While these percentages often reflect low turnouts, other opinion polls confirm an underlying movement away from toleration of ‘difference’. Whereas in 2006, 42 per cent of Europeans considered ‘the presence of people from other ethnic groups was a cause of insecurity’, by 2009 this proportion had risen to 45 per cent (Eurobarometer, 2010: 53). Between 2006 and 2009 the proportion of those who considered that ‘other ethnic groups’ or ‘immigrants’ ‘increase unemployment’ rose from 46 per cent to 49 per cent. The proportions holding this last view increased by 17 per cent in Ireland and by 15 per cent in Spain – countries extremely hard hit by the crisis. In Greece the proportion believing the presence of ‘other ethnic groups’ increases unemployment rose little but stood at 81 per cent in 2009. In the UK the proportion identifying the presence of migrants with higher levels of unemployment rose by 4 per cent from 2006 to reach 59 per cent and in France by 6 per cent to reach 44 per cent by 2009 (Eurobarometer, 2010: 58–59). Taking this ‘logic’ a step further, a Belgium opinion survey in 2012 found that 40 per cent of respondents considered that unemployed North Africans, Turkish and EU citizens from central and eastern Europe should be sent back to their countries of origin, and a quarter of those surveyed believed that these minorities help lower wages for all workers (CEOOR, 2012).

The shift in opinions went deeper than concerns about unemployment and wages. Asked to choose which three of 12 values they identified with personally, in 2006 the choice of ‘respect for other cultures’ was already one of the least popular, being selected by an average of just 11 per cent of Europeans (Eurobarometer, 2009: 9). This proportion then fell to just 8 per cent in 2010 and 9 per cent in 2012 (Eurobarometer, 2013a: 9). By 2012 over half (54 per cent) of the Europeans polled considered ‘that policies promoting equality and diversity are regarded as less important and are receiving less funding due to the economic crisis’ (Eurobarometer, 2012: 83).⁸

The outcomes of these small but significant shifts in opinion can be seen in increasing labour market discrimination against migrants, and make winning the trade union argument for solidarity more difficult. In 2007–2008 the unemployment rate of third-country-origin workers was 61 per cent higher than that of all EU workers aged 15–64. But while the crisis generated a general increase in unemployment, over the five years 2009–2013 the third-country-origin unemployment rate was 87 per cent higher than for EU nationals. For ‘other’ EU-origin workers unemployment jumped from 7 per cent above the ‘native-born’ rate in 2007–2008 to average 27 per cent above it in the following five years, implying that either migrant workers are more likely to be made redundant than ‘national’ workers, or that they are less likely to be recruited. But who are these ‘national’ workers, and do the labour market experiences of both ‘national’ and migrant workers depend not only upon their country of birth, but also on whether they appear visibly ‘different’ from the ‘national’ or workplace ‘majority’?

Migrants and ethnic minorities

Distinctions between cross-border migrants (those who were born in a country other than that in which they are now resident) and people who (regardless of their country of birth) share a population sub-group’s national or cultural traditions, language, religion and in particular, physical appearance, are important for explaining understandings and misunderstandings of contemporary racism and xenophobia. There is considerable evidence to suggest the ‘majority’ assessment of different ethnic appearance is important in shaping life experiences.

In most European countries demographic data are not collected on ‘group boundaries’ based on visible appearance, whether reported voluntarily or not. There are both scientific and socially constructed reasons for this. Not only is there no scientific evidence suggesting anything other than assorted physical and genetic variations across all human populations, but there is also a huge negative history attached to racial classification. Simon and Piché (2012: 1357) observe that definitions vary according to ‘local social conventions, political traditions, legal prohibitions and political mobilization’ imposing ‘different group norms’. They rightly indicate that such categories are ‘socially constructed, influenced by existing (and shifting) power relationships, national images and stereotypes, legal procedures and historical paths’.

Yet where colonial and post-colonial histories have evolved to the point where there has been agreement that knowledge of the experiences of minority groups could inform attempts to challenge direct and indirect racism, as in the UK since 1981, data can demonstrate the distorting effects of stereotyping by visible difference. Table 1 shows that three years after the crisis hit, youth unemployment among UK black people was 44.1 per cent, close to the level of young Arab-origin workers and not far behind the reported levels of Roma youth. This represented nearly one in two of all young black people, and was more than twice as high as the 19.9 per cent level recorded for young white British workers.⁹

Table 1.

UK youth unemployment rate by ethnicity, 2011–2012, ranked by % not in employment.

	Age 16–24
	Unemployed numbers (ILO)	Not in employment %
Gypsy or Irish Traveller	1444	55.3
Arab	4147	44.6
Black/African/Caribbean/Black British	47,111	44.1
Bangladeshi	12,277	34.8
Other Asian background	10,592	32.0
Pakistani	22,863	30.8
Other ethnic group	11,275	29.3
Mixed/multiple ethnic background	22,861	27.3
Indian	25,569	24.2
White Irish	2863	21.3
White British	748,041	19.9
Chinese	2778	19.0
Other White	23,433	14.3
All	935,254	21.0

Source: Office for National Statistics (Release date 15 February 2013). http://www.ons.gov.uk/ons/search/index.html?newquery=ethnicity&newoffset=150&pageSize=50&sortBy=&sortDirection=DESCENDING&applyfilters=True.

For a more general presentation over 2006 to 2011 see: http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%A77-260216.

What the table highlights, however, is something of even greater concern than the perhaps unsurprising statement that young black people (men and women) are more likely to be unemployed than young white people. It also suggests that if you are young your employment chances are also likely to be affected by the degree to which your skin colour and/or your appearance as a ‘racialized outsider’ may distinguish you from those who are ‘White’ (with the only exception the self-selected identity of Chinese). The presence of this racialized unemployment hierarchy among under-25s suggests their life chances will be stereotyped through skin colour or other assumptions about group affiliations as well as by their social class.

The OECD (2012) examined the integration experience of migrants and found that:

‘only part of these disadvantages (in different employment prospects or housing conditions) can be explained by differences in socio-economic characteristics such as age, educational attainment and income or work experience. Disadvantages persist even after accounting for such factors, including for the children of immigrants who were born and educated in the receiving country and who should, in principle, not face the same obstacles as their immigrant parents.’ (p. 144)

This confirms the results of a study carried out by the UK Cabinet Office (2003). It found that:

‘employment rates amongst almost all ethnic minority groups are lower than those of the white population. With the important exception of Indians, earnings and progression in work are also persistently lower. Critically, these gaps are not closing…There are important and worrying disparities in the labour market performance of ethnic minorities and whites that are not attributable to different levels of education and skills. The persistence of workplace discrimination is an important reason for this. Limited access to job and social networks is also critical, and subtle in its impact.’ (pp. 5, 7)

Heath and Cheung (2006) further demonstrated the presence of ‘ethnic penalties’ between different ethnic groups over three decades, even after holding educational attainment levels constant. The UK Low Pay Commission (2012: 26) reported employer data showing that in 2011 ethnic minorities and migrant workers were a quarter more likely to be paid on the national minimum wage than ‘all workers’.

From this evidence it appears that ethnicity is being used as a benchmark to create sub-groups of workers who can be employed on lower wages, and in worse working and/or living conditions according to some irrational notion of difference. The sub-groups may not always be treated unequally, or be consistently discriminated against in all occupations, and the skin colour-coding may vary in different areas, and also with gender and age. Erel (2007: 359) argues that across Europe ‘there are different histories, different social conditions, and different groups of people becoming the racialised Other’. Yet what is common in the way the inferior status of the ‘Other’ is constructed is that the assumptions of incompatible ‘biological or cultural difference…are socially constructed through power relations’.

In the absence of data from other European countries comparable to the British data it is not possible to demonstrate similar ‘skin colour-coding’ experiences elsewhere in Europe. Yet statistics on parental national origin do permit some demonstration of difference. In France, for example, the long-term (12 months or more) unemployment rate of 15 to 34 year old native-born offspring of immigrants was 13.8 per cent higher than that of children of native-born French parents (OECD, 2012: 103). Also in France, discrimination tests in which job applicants used both a ‘French’ name and a ‘Sub-Saharan African’ name in applying for jobs found that those using a non-French name had to write more than four times as many applications for them to be invited to a job interview (Cediey and Foroni, 2007). In Belgium, there are persistent disparities between Belgians, EU foreigners and non-EU foreigners. The most precarious workers in Belgium are Moroccans, Turks and Congolese-Burundian-Rwandians (Ouali and Ceniccola, 2011, 2012). Direct and indirect discrimination based on the construction of different levels of the ‘racialized Other’ are still shaping not just access to employment but also the kinds of work that is done, and how those conceived of as ‘racialized outsiders’ are treated by their work colleagues.

Ethnic discrimination happens most commonly in Europe in contexts covering access to and equal treatment within work. In 2006 well over half (59 per cent) of EU-25 respondents believed ‘A person who is not white compared to a white person’ would be ‘less likely than others to get a job, be accepted for training or be promoted’ (Eurobarometer, 2007: 17–18). In the same year, 45 per cent of respondents considered ‘the candidate’s skin colour or ethnic origin’ might put ‘people at a disadvantage when a company can choose between two candidates with equal skills and qualifications’ out of a choice of 12 possible reasons for disadvantaging candidates. By 2012 this reply remained in fourth place in a slightly longer list of 13¹⁰, with ‘skin colour or ethnicity’ viewed as an employment disadvantage by 62 per cent of the French respondents, 60 per cent of the Belgian ones, 56 per cent of the Swedish, 52 per cent of the Dutch, 45 per cent of the German, 26 per cent of the Italian and 22 per cent of the British (Eurobarometer, 2012: 87–88).

Across the 27 EU Member States an average of 39 per cent considered belonging to a minority ethnicity as an employment disadvantage. But another 23 per cent also chose ‘the expression of a religious belief, for example wearing a religious symbol’ as a built-in reason for disadvantage (Eurobarometer, 2012). The cross-over between racial and religious discrimination is reflected in case-law in the Netherlands and the UK, where ‘discrimination against Jews, Muslims and Sikhs has been recognized as race discrimination’ (FRA, 2010). It is also present as a result of the strong identification of certain religions with particular population sub-groups. One of the broader identities that overlap with certain religions is that of being a ‘migrant’. Table 2 shows that at the time of the UK 2011 Census, between one-half and two-thirds of those identifying themselves as belonging to the Islam (2.7 million) and Sikh (0.4 million) religions were born outside the UK.

Table 2.

Religion and country of birth in England and Wales, 2011.

	Non UK-born		UK-born
	%	000s	%	000s
Hindu	67	545	33	272
Muslim	53	1428	47	1278
Sikh	43	184	57	239
Christian	11	3567	89	29,676
No religion	7	1033	93	13,064

Source: Office for National Statistics, http://www.ons.gov.uk/ons/rel/census/2011-census/detailed-characteristics-for-local-authorities-in-england-and-wales/rpt---religion.html#tab-Religion-by-country-of-birth.

Another and still stronger association of religious affiliation is with ethnicity. UK 2011 Census data show that 96 per cent of Hindus and 68 per cent of Muslims self-identify as ‘Asian or Asian British’, and that an additional 10 per cent of Muslims self-classify as ‘Black/African/Caribbean/Black British’.¹¹ The construction of the ‘racialized Other’ on the basis of religious affiliation becomes an easy support for stereotyping prejudice and behaviour, and one that is continuously reinforced by the European media’s projection of a particularly negative image of the Islam religion (Ogan et al., 2014).

In 2012, discrimination against ethnic minorities in Europe was viewed as ‘widespread’ by 56 per cent of the 26,600 people surveyed across the EU-27. This assessment was given by 10 per cent more respondents than those thinking discrimination was widespread on the grounds of disability, sexual orientation, gender orientation or being over 55 years old (Eurobarometer, 2012: 16). This high incidence rate is confirmed by a Belgian study that found that three-quarters of foreign-origin applicants invited to job interviews reported having experienced discrimination while looking for work; and that one in three foreign-origin workers in employment reported their ‘native-born’ work colleagues had refused to help them progress within the firm (CEOOR, 2012).

To advance the debate about combating discrimination in the labour market it is important to recognize that the nature, seriousness and durability of discrimination vary between sub-groups of ‘minority’ workers. Acknowledging that there is a range of workers’ experiences and that their consequences may not be the same between and within ‘racialized outsider’ sub-groups is the first step towards a healthy discussion of strategic trade union responses.

Conclusion

We can now make three interconnected points about the wider context in which trade unions are challenging discrimination against ethnic minority and migrant workers at work. First, the Racial Equality Directive has largely failed to help overcome racial and ethnic discrimination at work. Secondly, the small rise in intolerance noted since the 2008 crisis has meant discrimination against sub-groups whose members appear different to the national majority not only remains pervasive but possibly is becoming more common. Thirdly, racism is arguably playing a stronger role in justifying unequal treatment against ‘outsiders’, leading to a weakening of the solidarity needed to ensure proper social regulation of the increasingly ‘open’ European economy.

The RED has had very little lasting impact to date. It did not specifically describe discrimination based on a person’s national origin as racist behaviour – in a period when non-national labour was becoming more and more present in European labour markets. Nor did it argue strongly in favour of preferential treatment or positive action as ways of remedying the evident inequalities racial discrimination had embedded into Europe’s highly diverse societies. It was also a mistake to try to kick-start significant social change through relying upon individuals taking their own cases forward under employment law. One alternative would have been to require strong national, sector and workplace collective regulation to outlaw discrimination; another would have been to make racial discrimination at work a criminal offence. A final criticism targets the RED’s ‘soft’ regulatory characteristics. Transposition was left to national legal systems and each Member State tended to soften its requirements to ‘fit’ its own particular circumstances.

Intolerance towards ‘other’ cultures and peoples has progressed in a period when parts of the media and many politicians have increasingly blamed unemployment and austerity on the growing numbers of ‘new’ migrants from central and eastern Europe as well as on refugees from wars and poverty. Within this ‘blame’ culture, however, there are distinctions that have real outcomes. Migrants from Africa, South America, the Middle East and Asia tend to experience more difficult transitions and greater discrimination than do ‘White other’ migrants – primarily from within the EU. While all these sub-groups may experience racism as ‘racialized outsiders’ it is also important not to totally conflate discrimination against ‘White other’ migrants with discrimination against ethnic minority ‘native-born’ workers. Where skin colour, names or religion suggest ‘immigrant’ origins, racism and resulting ‘ethnic penalties’ persist across generations, whereas discrimination against ‘White other’ migrants tends to lose traction in the second and subsequent generations (Meurs et al., 2005; Heath and Cheung, 2006).

The promotion or toleration of xenophobia and racial discrimination should not only be seen as morally ‘offensive’, ‘bad’ or ‘ignorant’, all of which they are. They should also be understood as reflecting choices taken by the dominant power structures. The result of implicit and explicit support for the tenets of xenophobia and racism gives justification to the economic and social subordination of major population sub-groups. By not challenging the ideology of a ‘natural’ order in which the hardest, most unpleasant, least secure and least-well paid work is ‘often’ or ‘usually’ performed by sub-groups with national origins or ethnic appearances different to the majority population, occupational racial segmentation has been encouraged. The lack of achievement of the Racial Equality Directive may thus also be partly attributed to its having been introduced as largely ‘soft’ law trying to influence attitudes rather than to implement equal outcomes as a regulatory economic environment.

In a globalized world where in many industrial sectors the experiences of status, skill, wages and working conditions are becoming increasingly segmented, racism makes it more difficult to create the collective solidarities needed to impose and enforce socially just regulations. Racism provides a direct and real challenge that the European trade union movement cannot leave to others to confront.

Footnotes

Funding

This research carried out for this article received no specific grant from any funding agency in the public, commercial, or not-for-profit sectors.

Notes

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