Rational discrimination

in which our historical hero fails to apologise for blatant Empire Building

Bias may or may not be rational. It all depends on the issue that falls to be decided. It is of course rational to discriminate in making choices. Discrimination only becomes irrational if it takes irrelevant or erroneous factors into account. Only a fool would declare 'I never discriminate!' We should discriminate against the unwise, and discriminate in favour of the wise. Not all choices are equal. In our private lives we discriminate in favour of our personal preferences. We select more of the things we like, and reject those which we disdain.

Yet the pileup of laws forbidding 'discrimination' constructs a New Normal where an explanation or justification is required for making perfectly rational choices. So an airline (not United Airlines) might carefully explain 'we think it is reasonable to discriminate against this pilot because he doesn't know how to fly a plane. This discrimination is unfortunate and unfair, but it is justified at the utmost end of need, because sadly we do often prefer to hire pilots qualified to fly'.

Under employment law, such an explanation would probably be acceptable. In most cases as long as you offer a good explanation for rational behaviour you will be permitted to proceed as planned. Airlines are allowed to specify qualifications for their pilots if they really need their pilots to be qualified, though they must explain why qualifications are genuinely required: 'It's so the plane doesn't crash out of the sky Your Honour.' Permission to discriminate in favour of qualified pilots will most likely be granted. The court just needs to check that airlines are not behaving like Georgia, demanding spurious qualifications as a transparent scam designed to avoid hiring black people who don't know how to fly planes, trying to avoid offering everyone their equal opportunities.

Under equality law airlines can also get permission to hire white pilots at the utmost end of need if they really can't find enough coloured pilots despite their best efforts. The law only requires the employer to keep records showing that they at least tried to hire different races. If they can prove that they made their best effort to do diversity, they will most likely be allowed to keep their white pilots temporarily while they continue trying to roll out more equal opportunities.

The legal test of justification is one of proportionality. Why are you running an airline? Why do you have planes? Where are they flying to? Do they need to fly there? What about the climate emergency? Why not just ground all the planes and shut down the airline, to avoid hiring all those white male pilots so that equal opportunities can work better? No airlines, no white privilege, no problem.

In this way equality law requires detailed explanations for perfectly rational conduct. This is to guarantee equal opportunities, and to keep all our communities safe. We need to know your reasons, so we can decide whether your conduct is justified and proportionate. Proportionality is a three stage test.

• What are your goals?
• Why did you choose this method of achieving your goals?
• Why couldn't you find another way to meet your goals, or just select different goals?

The court then decides whether your business model is justified. Luckily, the judges are all very smart, so it's worth hiring lawyers and spending £££ to get all your explanations in line. In triplicate. If you're an airline, hire a few expert witnesses to explain why air travel is sometimes necessary and why skilled pilots are sometimes required.

The legal requirement to explain yourself and keep records of how well you are doing nondiscrimination derives from Rawlsianism. Rawlsians are social justice warriors who have created a default List of reasonable things that people are allowed to do in the Original Position without falling into the Sin of unreasonableness. The List says you must do equality and nondiscrimination. That is the List. There is no other List. If you do something that's not on the List you are presumed to be unreasonable unless you offer an explanation for your conduct that we consider to be justified and proportionate. Then you'll get your forgiveness certificate which is valid for that infraction only. If you breach the List again you'll need to apply for a new exemption.

Reader, this is the New Normal. The Rawlsians have cornered the reasonableness market. There is only one approved way of doing reasonableness. To be reasonable everything must comply with Rawlsian requirements although in some cases a justifiable explanation for default may be offered. The system is not inflexible - a deserving discriminator with mitigating characteristics may occasionally avoid punishment.

The process is straightforward. The List states that you must have proportionate numbers of all races in your business. 80% of your employees must be black, because even though black people are not yet 80% of the population we are working on it haha. Equal opportunities procreation. Soon reality will match what you see in all the films.

If the racial appearance of your workforce is not 80% ethnic, any disadvantaged ethnic person can bring a claim of indirect discrimination. The word 'indirect' means that you did not do anything discriminatory to them, but look, they are still disadvantaged! Disadvantage is not on the List, my friend. You will need to explain, so the court can decide if your workplace should be forgiven for failing to meet List requirements. 

​If your employees are exhibiting way too much toxic whiteness the UK Supreme Court has held that luckily, you are allowed to offer your explanation. That's lucky, isn't it. How grateful you must be that the Rule of Law in a liberal democracy allows you an opportunity to explain your conduct. What's your excuse? State it for the court. Don't be shy, there's no shame in trying to explain why you are not a Racist honest guv.

​It is always open to the respondent to show that his [provision, criterion or practice] is justified - in other words, that there is a good reason for the particular height requirement, or the particular chess grade, or the particular CSA test.

Some reluctance to reach this point can be detected in the cases, yet there should not be… The requirement to justify a [requirement] should not be seen as placing an unreasonable burden upon [employers]. Nor should it be seen as casting some sort of shadow or stigma upon them. There is no shame in it.

​There may well be very good reasons for the [requirement] in question - fitness levels in fire-fighters or policemen spring to mind. But, as [pointed out by the court below], a wise employer will monitor how his policies and practices impact upon various groups and, if he finds that they do have a disparate impact, will try and see what can be modified to remove that impact while achieving the desired result”

Essop v Home Office par 29. In which the Home Office explains and attempts (without success) to justify why it does not promote black people who fail the promotion test.
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Many employers don't like standing in court explaining why they are not a Racist. It feels a bit embarrassing, doesn't it, to be a fully grown man or woman who runs your own business, standing in the dock like a common criminal, explaining why so many of your workers are white and why none of your best friends are black. How embarrassing is that! Look at you, standing there, your mugshot in the newspapers with details of how you didn't hire a black person. You just know everyone thinks you're a Racist. No smoke without fire. Rather than get to that point many employers settle all the racism claims to avoid a hearing. Just budget separately for settling racism claims. It usually costs no more than a few thousand £££ for each claim (hopefully this won't encourage more chancers to bring claims against you, fingers crossed).

If you're accused of being a Racist when you're not, don't worry. You should mount a defence. There's no need to be squeamish. Just stand up tall and explain yourself. In a loud and clear voice, so you can be heard at the back. Practise by watching reruns of Prince William stating in a firm voice that no, the Royal Family is not a racist family. Or better still, emulate Piers Morgan who went a bit louder in shouting that he's not a racist - he shows the right sort of volume to aim for in situations where everyone knows you're cancelled even though you're pretending that you're not cancelled.

Like Baroness Hale says, there's no shame in defending yourself. It's your day in court. You have a right to be heard in your own defence. The first principle of Magna Carta states that "accused Racists have the right to speak for a few minutes before society destroys their careers forever". The second principle of Magna Carta states that "everyone who commits a non-crime race-hate offence has the right to be given the opportunity to apologise for causing offence even when they haven't done anything wrong". So you will get an opportunity for some sort of Swansong in open court. It's your ancient freedom, and courts are there to uphold it.

A few tips. Try not to sound weepy or desperate like Mrs Ozzy Osborne during her last television performance, valiantly denying that she's friends with a racist because how can she be friends with a racist when her friend is not even a racist? Oh dear. Don't ask the jury questions. Keep your defence simple. Say you're sorry. Wear dark clothes and do your best to look serious. Be confident. Nobody blames you for being in trouble. There is no shadow or stigma. If you are innocent, just explain to the friendly judge why you organised your business in a way that attracts so many qualified white men. If you're not a racist, there's no need to be afraid. You'll be fine. You'll be free to step down from the dock and be on your way, with your reputation intact and no stain on your character, haha.

British people love being falsely accused of being Racists, because it offers them the perfect opportunity to stand up in court and say "I am not a Racist' which is nice. They then get to apologise, which is even better, we all love apologising when we have done nothing wrong because it shows that our intentions are good. The friendly judge then says 'Go, your sins are forgiven' and it feels almost like your soul has been publicly redeemed. Just ask Mr Pell. Mr Pell was an 'older' man who called a coloured person 'coloured' because he thought that would be more polite than calling him a BAME or an Nword.

​Employment Judge Robert Clark said the 'older' Mr Pell was 'a particularly naive and timid' individual who described himself as 'being raised in an old fashioned household'.

'Wrongly, [Mr Pell] now understands, he had been anxious about describing anyone as 'black' as he perceived that could be offensive generally.

'His restricted vocabulary was compounded further when trying to describe individuals from an Asian background as black.'

'We accept white people of a certain age who perhaps have not had much opportunity to benefit from multi-cultural acquaintances in their day to day lives may draw on this outdated language in the mistaken belief it is polite and genuinely descriptive.

Daily Mail

Having lined up all these mitigating circumstances, Mr Pell was of course forgiven, acquitted of all charges, and set free by the nice judge once he had explained himself and his private matters such as his age, personality and his family background. Great outcome for Mr Pell! Now when anybody googles his name they will learn that he is not a Racist, just naive and old-fashioned and lacking in multi-multi friends. This must surely bring him much comfort and make up for his gruelling time in the stocks.

As this case shows, it's worth going through a public trial where the judge scrutinises your motives and integrity, if it ends in the pronouncement that you are NOT a racist and just used the wrong words because you were raised in an old-fashioned home which was not your fault. It's your parents who should be in the dock, really, for keeping an old-fashioned home. Now that he has apologised for inadvertently causing offence, we wish Mr Pell good luck, and advise him to do the government's White Allyship training which is available for free on the NHS. It will save him any future embarrassment caused by mis-naming other people, calling them the wrong colour when they're not even black but more a shade of brown.

Now some advice for those who actually are racists. You don't want to deny being a racist, if you are in fact a racist. In this situation your best chance of success is to try and show that your racism was for a good cause. For example, you are allowed (indeed encouraged) to do racial stereotyping if you show that you were trying to identify the real black people so you can help them. They do this at the BBC and in this way they're allowed to be racist, it's fine. So if you're caught being racist this is a good get out jail free card to play.

Finally, the sensitive matter of tests. It's simple. Don't have them. If you must have tests, make sure everyone passes. You can't have tests designed so that some people might fail them, it's too risky. What if a black person fails your test? You will have to go down to the courts to explain to the friendly judge what happened. Why did you have a test? Why did the black person fail your test? If you are innocent, and you didn't purposely design a test to exclude all the black people like Georgia, then you just explain why you need tests and it should be fine. Just apologise, explain your age and family background, and you should be free to go. There's nothing to fear if you haven't done anything wrong. The judge is there to help you show the world that you are truly not a racist.

If you really don't enjoy explaining yourself in courts of law, it's probably better not to have any tests or exams or require any sort of qualifications for that matter. What if you accidentally ask for colonialist qualifications? It's not safe. If you're an airline, just give the pilot a chance, and keep your fingers crossed. Tests are risky because you will have to give equal opportunities to everyone who takes the test. Whether they fail or pass is irrelevant - in fact you should prefer those who fail because if you don't they'll sue you for indirect discrimination and before you know it you'll be in the stocks trying to explain that you're not a Racist.

​Nondiscrimination means that you cannot discriminate against failures unless you have very good and proportionate reasons. Proportionate means that you shouldn't have many black people failing your tests - one or two failures might be innocent but if multiple black people are persistently failing your tests then you are most likely inadvertently turning into the racist state of Georgia. The simple question the judge will ask you is: Why? WHY did you discriminate against those poor people who failed your test? Don't be afraid to explain. If you are an airline (not United) there is no shame in explaining why you prefer pilots who can safely fly your planes.

In a world where everyone is mad, and the law obviously wants to reflect this madness, the burden lies upon rational people to offer reasons, explanations and justifications for their conduct. If you freely choose to be rational, the price you pay is the responsibility to explain yourself to our satisfaction. Like Magna Carta says, "with freedom comes responsibility to offer society an explanation for rational choices". Society will give you a fair hearing, and decide if your rational decisions are justified and proportionate.

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