Diversity and Inclusion

by Gamiel Yafai

Discrimination

Discrimination can be defined as action taken on assumptions, stereotypes and prejudices, whether negative or positive. All of us carry certain prejudices. This is fine, until we use our power to act on those prejudices. This then becomes discrimination.

It’s the power that we assert that creates the possibility of discrimination. It is therefore not the sole province of men or white people, but of anyone with a degree of power over another. Discrimination is concerned with action, not with people’s attitudes or beliefs or long-held and cherished views. It’s what people do with these views that are of significance.

In fact, it could be argued that every time we make a decision which involves other people we are exercising some form of discrimination.

The distribution of resources within any organisation or institution, whether it is the delivery of services or the offering of facilities and/or resources, depends on the priorities of the organisation. The institution can draw up priorities which themselves (consciously or subconsciously) can be discriminatory. Individuals within an organisation can also have the opportunity to use their own assumptions, stereotypes and prejudices to discriminate in their practice (consciously or subconsciously).

Discrimination can, of course, be positive or negative, and both often go hand in hand. For example, if a recruitment process discriminates against black people, it must be discriminating in favour of white people (or vice versa). Discrimination, either positive or negative, is generally unlawful when directed against certain groups. However, positive action towards certain groups is permissible in certain circumstances (see Advertising and Genuine occupational requirement in the topic on Recruitment).

The outcome of being discriminated against is that we are often denied something – sometimes something concrete, such as goods, services or career opportunities, but more often we are denied self-respect.

Discrimination comes in many forms, some of which are described below.

Direct discrimination

This is where a person treats another person less favourably because of a protected characteristic. It does not matter what are the reasons for this treatment or whether the less favourable treatment was intentional or unintentional. It does not matter if the person who is the discriminator has the same protected characteristics as the victim and it also includes discrimination that is based on a stereotype of a person with a protected characteristic, whether that stereotype is accurate or not.

Generally, such behaviour cannot be justified. Exceptions occur in a very small number of situations, such as Positive Action, where there is a Genuine occupational requirement for a job (for example, where an age-based rule is applied that is a proportionate way of achieving a legitimate business aim), or where a disabled person is treated more favourably by providing reasonable adjustments.

Something to consider

You advertise for a young Indian female to be a radio presenter to front a breakfast show on your newly-launched radio station – Indibrit FM. Your argument for wanting an Indian person is based on the need for authenticity.

This would appear to show authenticity, from an Indian perspective, but it would be directly discriminatory against someone who is white and has been brought up in an Indian culture and also speaks at least two other Indian languages.

Indirect discrimination

Indirect discrimination may occur when an apparently neutral provision, criterion or practice is applied, which puts people sharing a protected characteristic at a particular disadvantage. Indirect discrimination can be justified if it can be shown that such behaviour is a proportionate means of achieving a legitimate aim.

Something to consider

Your policy states that in the event of an evacuation being announced everyone must walk down the fire escape route, because you do not want anyone being trapped in the lifts. Why might this be indirect discrimination?

This may adversely impact on people with a disability or on more elderly people, who may have difficulty walking.

Appropriate reasonable adjustment, such as chair lifts and/or evacuation holding areas, may need to be put in place.

Discrimination by association

This is where someone is treated less favourably because they are or you think they are associated with a person or persons having a protected characteristic. Equality law recognises two types: direct discrimination by association and harassment by association with someone with a protected characteristic.

Something to consider

You withheld permission to a request from an employee to amend their working patterns, which would allow them to also care for their elderly disabled parent.

Was this a reasonable thing to do?

It depends on the circumstances and critical business needs. For example, if you are operating a time-critical business where this person’s responsibilities cannot be taken on by anybody else, then it would still be appropriate to consider offering alternative work for this person, allowing them to modify their working patterns.

Discrimination by perception

This is where someone is treated less favourably because you think they have a protected characteristic. Equality law recognises two types: direct discrimination by perception and harassment by perception that someone has a protected characteristic.

Discrimination arising from a disability

Discrimination occurs when you treat a disabled person unfavourably, and this treatment is because of something arising in consequence of the disability and cannot be shown to be a proportionate means of achieving a legitimate aim.

Something to consider

An employee has had a lot of time off for rehabilitation because of their disability. Because of the time off, you decide to start disciplinary proceedings. The reason you are disciplining the member of staff is not because they are not doing their job, but because of absence from work for medical treatment associated with their disability.

Failing to make a disability-related reasonable adjustment

Discrimination occurs when you fail to comply with the duty to make reasonable adjustments in relation to disabled people.