The law or us?

Posted on September 30, 2011 by

1


Who’s responsible for improving UK workplace discrimination?

This week we’re please to welcome another new fab guest blogger; Claire Walsh, managing partner of Brighton-based leadership development, executive coaching and learning & development consultancy firm LCP.

Inequality in the workplace – in recruitment, promotion, salary and treatment – could be down to many kinds of discrimination. The following ‘protected characteristics’ are currently covered by law, recently brought together under the Equality Act 2010: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation.

But I have two questions: what protection does the law provide when an individual is discriminated based on two or more characteristics and what protection does the law offer for causes of discrimination not stated under the Equality Act, such as appearance and politics? I make no claims to legal expertise; however these two questions are areas that I feel all of us who support the goal of UK workplace equality could do with scrutinising a little closer.

Intersectional discrimination

When an individual is discriminated against due to two or more characteristics which are inextricably linked, this is called ‘intersectional discrimination’. This is not yet clearly covered by UK law, with a clause in the Equality Act 2010 allowing for only two characteristics to be considered: “‘A person (A) discriminates against another (B) if, because of a combination of two relevant protected characteristics, A treats B less favourably than A treats/ would treat a person who does not share either of those characteristics.’”

Last year’s update is at least a step up from previous legislation, under which only one characteristic could be considered. For Lyiola Solanke, “the earliest anti-discrimination laws in Britainflattened identity and simplified reality in order to arrive at a workable logic that could be both understood by the public and applied by the courts.” (London School of Economics).

However current understanding of multiple discrimination in the EU doesn’t fully acknowledge how two ‘protected characteristics’ can be inseparably entwined: “Well-known and particular stereotypes attach, for example, to Muslim men, young black women, older Asian women and so on. In such instances, it can be impossible to establish that discrimination has taken place on a single ground. For example, a restaurant may refuse to employ a black woman as a waitress. The woman claims that this is discrimination precisely because she is a woman AND because she is black, and this may deemed as multiple discrimination on grounds of gender and race. If the court looks at the grounds of gender and race separately, it will not find discrimination. The restaurant employs both men and women as waiters, so it is not treating women less favourably than men. It also employs black men and thus does not treat black people less favourably. Only if the two grounds are taken together will the discrimination be identified. So in this case the black woman would only have a chance of success if she could claim discrimination on a combination of grounds.” (GendeRace).

Dealing with multiple discrimination is crucial in improving workplace equality in the UK. The fact that women in the UK earn less than men is a commonly known fact e.g. the average UK salary for a male manager is currently £10,031 more than that of a female manager (Guardian). Ethnic minorities are also amongst the lowest earners. However, a specific vulnerable group are women from ethnic minorities e.g. the working age employment rate is 69.4 per cent for men from ethnic minorities and just 52.4 per cent for women (Unite). Perhaps additional analysis may find that further inequality is likely based on other factors, such as religion, location or language.

Many academics and legal experts have argued that fully combined multiple claims should be permitted under UK law. But the concern is that “this would significantly complicate the law and place additional burdens on business and the public sector” (Department for Communities and Local Government). Whilst this is an understandable concern, I would like to see more research on multiple discrimination and whether it is a problem that demands to be better addressed.

Further problems with traditional approaches to discrimination:

  • Targeting a singular characteristic often means that the upper strata of a marginal group (i.e. those closest to the dominant social group) benefit more than the lower from anti-discrimination campaigns.
  • Identifying protected characteristics could perpetuate discrimination problems; “Since many categories are often associated with stereotypes, whether good or bad, it is the link between stereotypes and the ways in which people act upon these preconceived notions that lead to discriminatory behaviour.” (International Labour Organization)
  • Relying on the law to untangle matters can lend an unfair advantage to employers who will invest in understanding it, this concern was expressed by the Australian Human Rights Council: “employers who know their responsibilities under the Racial Discrimination Act and Sex Discrimination Act can act in a way that discriminates in subtle and less tangible ways, so even though the effect is discriminatory, they remain within the law” – this knowledge is in stark contrast to possibly ignorant vulnerable groups.

The logic of immutability

Presently much of our understanding of discrimination and who should be protected is based around the logic of ‘immutability’ i.e. that the discriminated characteristic cannot be changed. Certain other perceptions are caught up with this logic, with traditional understanding tending to view discriminated characteristics as: permanent, without change, visible (and easily-identifiable), without choice, and without inter-group difference. However areas currently covered by law – such as ‘religion’ – question the traditional logic of immutability. Furthermore this understanding does not account for other causes of discrimination e.g. parenthood, haircut, spoken language, regional accent, politics, attractiveness, caste and weight. Perhaps the logic needs to be changed to consider ‘protected characteristics’ as things which an individual may have limited control other (e.g. medical obesity or a haircut as a family tradition) and/or things which are integral to a person’s character (e.g. for some politics may be equally or more important than religion).

Most of us don’t belong to one community but several. We have multi-faceted identities. Stonewall

Admittedly, extending our perception of discrimination in this way would cause a major headache for legal professionals! And of course the important work in tackling kinds of singular discrimination must not be undermined. But, whilst discussing the issues of discrimination based on caste and race, one article stated that some organisations feel it’s “education, not legislation, [that] will change mindsets” (Guardian). Perhaps if all of us take time to consider the infinite subtleties that shape any one individual’s character, we will see faster improving equality in our workplaces.

Whilst we wait for the law to catch up, investing some time in promoting workplace diversity – a way to reduce conflict, improve team work, and ultimately greatly enhance performance – can surely not go amiss?

Further Reading

A past newsletter from LCP containing practical tips on how to promote diversity: http://archive.constantcontact.com/fs086/1102078785847/archive/1106726995205.html

Advice on what constitutes discrimination and who can help: http://static.advicenow.org.uk/files/is-that-fair-final-113.pdf

A little about Claire

Claire Walsh is a managing partner of Brighton-based leadership development, executive coaching and learning & development consultancy firm LCP. Other specialist services they provide include train the trainer, psychometric testing, 360° feedback and language & communications training. Get in touch with Claire by joining her on LinkedIn or Twitter, or by checking out LCP’s blog.