Barack Obama appeared US television this week on the Late Show with David Letterman. This followed accusations by his predecessor Jimmy Carter that criticism of his policies about healthcare reform were motivated by racism. When asked about this, Obama observed that, “I was black before the election.”

A simiar problem can arise in employment tribunal cases, especially where it is alleged that a dismissal is discriminatory. If an employer really wants to avoid having employees from, say, a particular ethnic group, the best way to acheive this is surely not to employ anybody from that group in the first place, rather than employing someone only to be dismissed at a later date. Tribunals often specifically ask claimants to explain why their employers recruited them if they are as racist as they are alleged to be.

The problem is not insoluable and there are situations in which there is a straightforward answer, such as when companies are taken over by new managers who are less enlightened than their predecessors and decide to undo their good work. A more complex variation of this situation can happen in public bodies, and other large centralised institutions, where there is a strong desire from managment to promote diverse recruitment but this culture is not always supported by less senior staff. Finally, the saddest cases are those in which employers mean well and strive to avoid discrimination but are hamstrung by stereotypical assumptions, which means they are perfectly happy, for example, to select black job applicants for jobs, but will be more likely to dismiss them for perceived agression than their white colleagues, sometimes without even being aware of it. In any event, anyone wishing to argue that a dismissal is discriminatory should expect to provide an explanation and evidence to support it.

By contrast, dismissals based on pregnancy discrimination and victimisation are much easier to prove, precisely because the employee in question usually was not pregnant and usually had not made any complaints of discrimination when first employed. If the dismissal occurs immediately after a change of status, the employer has a lot of explaining to do. The same can also be true of disability discrimination where the employer was initially unaware of the disability, either because of a failure to ask about it or because of a failure to spot the obvious, such as that a person being interviewed has a prosthetic arm.