The Equal Opportunities Commission (EOC), established by the 1975 Sex Discrimination Act (SDA), was one of the most prominent gender equality bodies in Europe. Now replaced by the Equality and Human Rights Commission (EHRC), whose remit extends across a wide range of protected equality grounds, the EOC acted as the main actor involved in the promotion, investigation and enforcement of sex discrimination legislation between 1975 and 2007.
The equality body was however an institution of its time, embedded in political and economic contexts that necessarily impacted its initial promise to “work towards the elimination of discrimination”. This blogpost scrutinises the key features designed into the EOC and suggests that these features were to adapt to the said contexts, leading the institution to follow certain rationalities that, eventually, participated in forging its political and legal positionings.
The political arm of the EOC: The Commissioners’ Board
The EOC’s highest decision-making body, the Commissioners’ Board, was responsible for taking the strategic decisions that formed the general direction taken by the EOC, and for overseeing the realisation of its objectives. The Commissioner’s Board had primarily a leadership role and adapted to evolving economic and political challenges as it witnessed the transformation of a heavily regulated economy in the 1970s, into a neoliberal and privatised one from the 1980s onwards.
Because of its political role in these varying historical and socio-economic contexts, the appointment of its commissioners and their positionality have been the subject of heated debates. An early controversy, regarding the appointment of the initial board in 1975, concerned its lack of feminist activists. Indeed, although the necessity of their involvement had been highlighted early on by Jo Richardson MP, according to which commissioners were supposed to have “a commitment in [the] eradication [of discrimination]”, as well as by Ms Colquhoun, who had asked EOC commissioners to be “committed to women’s liberation”, the first Commissioners appointed by the Home Secretary did not include any candidates who had been proposed by the National Council for Civil Liberties (NCCL), Women and Media and the Fawcett Society, such as Anna Coote, Tess Gill or Patricia Hewitt. Instead, establishment figures such as Diana Rookledge and June O’Dell were preferred, leading feminists to question the positive impact the EOC could play in reaching “real” equality. This type of controversy would repeat itself many times over the history of the institution – and similar issues have recently arisen in respect of the appointment of Commissioners to the EHRC.
In addition to its lack of feminist activists, the newly formed Board was too criticised for its very joint nature, as it was composed of three commissioners from the Confederation of British Industries (CBI) and three others from the Trade Union Congress (TUC). As remembers Lady Lockwood, the first chair of the EOC,
“the Women’s Movement were very much afraid that you would have a sort of division between the interests of the employees and the employers, but it just didn’t turn out that way. It turned out that both the Trade Unions and the CBI had the same vested interest in keeping things as they were”.
And indeed, commentators argued that over the years, the Board demonstrated “passionate caution” and tried “not to ‘rock the boat’ by interfering with free collective bargaining and the ‘natural’ order of industrial relations”, rather than “produce[d] courageous or dynamic action”.
However, other observers would call for the contextualisation of these debates within the larger structure of the EOC. Indeed, many of the key decisions made by equality bodies are the responsibility of its full-time, permanent staff rather than part-time Commissioners – and the EOC was no exception. How was the Board of Commissioners integrated to the wider institutional structure of the EOC? How was the division of decisions and powers between Commissioners and EOC staff organised? And to what extend its officers had the agency to mitigate the decisions taken by the Board of Commissioners? All these questions deserve to be explored in detail through archival documents and interviews, which will too shed light on the political implications of the EOC’s use of its enforcement powers.
The enforcement role of the EOC
The role of the EOC was initially envisaged as that of a strategic actor, which would help securing compliance with the SDA by taking proactive investigation action against discriminating employers and service providers. In order successfully to conduct such inquiries, the formal investigation mechanism provided under the SDA allowed the EOC to conduct inquiries regarding specific aspects of sex discrimination. In order terms, the EOC could investigate the discriminatory conduct of an employer (whether private or public) or of a general type of discrimination, for instance by requiring employers to furnish information pertaining to its discriminatory conduct.
The Commission’s formal investigation powers were nevertheless subject to harsh criticism, from politicians to members of the CBI. Lord Denning went as far as comparing the role of the EOC as that of the “General Warrants” during the inquisition. In the same vein, although in a less theatrical fashion, Ian Gilmour MP described the EOC as being “policewoman, prosecutor, judge, jury and even probation and after-care officer”. According to its critics, the role of the equality body should be limited to promoting compliance with the legislation – or confined to a very narrow and specific regulatory remit.
The hostility directed against the enforcement role of the EOC, and the political and legal challenges posed by uncooperative subjects of the formal investigations who threatened the Commission to challenge its decisions, and/or did challenge them, in addition to the lack of consensus within the Commission as to the use of formal investigations, made it tread cautiously. Eventually, between 1976 and 1984, the EOC only initiated nine formal investigations, many of them concerning educational curricula rather than large-scale discrimination in the labour market. What elements governed the choice of the EOC to open formal investigations? Where its reasons purely driven by what the EOC considered to be the main issues in contemporary England? Did they reflect too the political contexts, and the backlash and subsequently legal battles the institution faced? Analysis of formal investigation reports will shed light on the EOC’s view of the appropriate scope of its legal powers, on its political priorities of the Commission, and on the evolution of these priorities with the socio-historical context.
The EOC in practice: education and individual assistance before enforcement?
Although the formal design of the EOC focused on its enforcement role, commentators argue that the EOC did not ever fully deploy its ‘hard’ enforcement powers. It rather took a path towards securing change through ’soft’ powers of advice and persuasion, notably in response to the wider neo-liberal turn in UK society from the late 1970s.
As one commentator put it, “great reliance [had to] be placed upon the educative effects of legislation, and upon the development of a public consciousness that discrimination is socially and morally unacceptable”. The use of education and other promotional tools as the main method for challenging discrimination was reflected too in the words of Lady Lockwood:
“people have to see the advantages of providing the facilities for equality and this means that we, as a Commission, have got to help them to see their own specific interests in terms of getting rid of sex discrimination”.
Nevertheless, the existence of the EOC’s investigative powers, despite being often viewed as reserve measures only to be used in extremis, did serve at times to induce employers to co-operate with the Commission. Furthermore, the Commission began to focus more on securing the indirect enforcement of the legislation, through supporting individual litigants. This role soon came to occupy the bulk of its financial and human resources, and overwhelmed from the very beginning of its existence by multiple requests for legal assistance, the Commission had to develop a strategy for choosing which individual claims to support. Its choice of cases reflected, to a certain extent, certain strategic objectives. In its early years of existence in particular, the EOC supported numerous individual applicants whose cases provided an opportunity for the Commission’s lawyers to seek clarification of relevant provisions of UK and EU sex discrimination law, in particular those related to indirect discrimination (for instance in Enderby v Frenchay Health Authority), pregnancy discrimination (Gillespie v Northern Health and Social Services Board) and the principle of equal pay for work of equal value (Hayward v Cammell Laird).
Early research at the National Archives suggests that beyond cases that clarified the interpretation of a given legal provision, the EOC supported applicants for other reasons, such as the expected mediatic impact of their case. What was the proportion of cases that have been supported for mediatic purposes? How the subject-matter of the cases supported by the EOC evolved over time? To what extend the EOC made use of strategic litigations to extend the scope of the SDA (for instance by including discrimination on the basis of gender identity in the ambit of sex discrimination)? In addition, early analysis of the EOC’s selection of cases, which assistance has been provided to, suggests too that the equality body did pay attention to issue of intersectionality since its early years of existence. Indeed, the EOC supported many individual litigants who faced indirect discrimination on the basis of gender and age. By comparison, a smaller number of cases explicitly concern the discrimination of women of colour.
Upcoming interviews with former EOC commissioners and staff, undertaken in the context of the Gender Equalities at Work Project, in combination with archival research in the National Archives, the Women’s Library and the Modern Records Centre, will hopefully shed fresh light on these aspects. This research should allow us to assess the impact on the EOC’s institutional promise of external factors (such as the political context, the scarce resources, the hostile media coverage, and the public scepticism) as well as internal elements (the administrative constrains, the overwhelming caseloads, and the commissioners themselves), and the adjustment of the EOC to these constraints.