Employers have never had such an exhaustive battery of anti-discrimination regulations to deal with. But is legislation really addressing the real problem, the drip-drip disease of prejudice which is the curse of workplaces everywhere? Norman Thomas discusses.
In Britain laws against discrimination at work started with the Equal Pay Act, 1970, but over the years more and more regulations have appeared, culminating in the Equality Act 2010. This combines under one Act of Parliament all the previous discrimination and equality legislation.
It lists the 'protected characteristics' which can be considered the basis for discrimination, including sex, race, age disability as well as several others like marriage and gender reassignment. It also formulates new types of discrimination, including indirect discrimination, associated discrimination and discrimination by perception.
Third-party harassment is also likely to be a contentious issue in discrimination cases in the future. Under the new legal regime, any boss who allows a member of staff to be harassed by somebody else for having one of the protected characteristics will also be liable to prosecution.
In this instance, the discrimination doesn’t have to be done by the same person and not even the same kind of discrimination. The employer just has to let the harassment happen three times.
Such refinements of the law already have some human resources professionals tearing their hair out, worrying that everything is getting too complicated, that it will be too easy to fall foul of the law.
How effective is current legislation?
But a bigger concern is the effectiveness of the discrimination law in its own terms. Is there any evidence that it’s really getting to the root of the most common, and arguably worse, forms of discrimination in the workplace?
Case study - Rena
Rena was one of a number of victims of discrimination I interviewed for a new film on the subject. Originally from Jamaica, Rena has worked in a variety of public sector and private organisations. She says: “Discrimination is usually very subtle. Often you only realise you’re being discriminated against when you start feeling uncomfortable. You realise things are adding up.”
She describes it as a “drip-drip” effect, as people use their position in the organisation to take their prejudices out on people in tiny but damaging ways.
“If you’re low down in the hierarchy it’s very difficult to challenge the bureaucracy,” says Rena. “If something you ask for takes two weeks, does it really take two weeks for something to go from desk to desk – or is it because it’s you?”
The fact that the acts of discrimination are small makes them harder to detect – but more psychologically damaging.
“If you pick up on small things, you’re considered petty. But if lots of small things happen to you, you’re exhausted by the end of the week from the stress of fighting all those petty issues.
“You put on a brave face and try to be professional, but you think, how can I fight this?”
And, if an employee is provoked to take action, it remains phenomenally hard to prove discrimination – regardless of the law.
How can you prove discrimination?
Ruth Neil, an employment specialist with solicitor Stone Joseph, says: “I do think discrimination is difficult to prove. Nobody’s going to say ‘I dismissed you because you were pregnant’ or ‘I dismissed you because you were a woman and you ought to be in the kitchen not the boardroom’. It’s very unlikely anyone will say something like that.”
But, according to Neil, there have been a number of technical innovations which, in theory at least, now make it easier to prove discrimination.
One example of this is the 'questionnaire procedure'. If employees believe they are being discriminated against, they, or their advisers, are now entitled to ask employers to fill in a questionnaire which can be used as evidence in an employment tribunal.
The questionnaire can be used to collect valuable evidence of how the employer has treated other employees in similar situations – critical to a discrimination case.
But of course such technical innovations are critically reliant on the good faith of the employer. They are also unlikely to pick up on the extremely subtle discrimination people such as Rena have suffered.
Going underground
In some ways, Rena says, the new equality legislation has improved things – making people aware of what is unacceptable, helping, to some extent, to change attitudes. But in one very important way it has actually made things worse.
“In the past,” says Rena, “people might shout abuse at you because of the colour of your skin, but now it’s like it’s been driven underground. Instead of shouting at you they make you wait, perhaps, give you worse service, things which are impossible to prove, little things – but they keep adding up.”
So, it seems, even the most sophisticated anti-discrimination law is profoundly limited with regard to the most insidious types of discrimination. And adding to this law is unlikely to make it more effective.
The danger is that legislation leads to a kind of “corporate complacency” as organisations feel that as long as they can show they know the letter of the law, they stop looking too hard for the discrimination which too often lurks behind the surface of the workplace.
Laws on discrimination in the workplace definitely aren’t like laws on health and safety in the workplace, where strong and sensible laws, coupled with enforcement, bring results. Laws on discrimination, unfortunately, can simply lead to forms of discrimination which are more ingenious and harder to control.
This is why, I feel, the only real solution to discrimination lies outside legislation, in having organisations in which anti-discriminatory attitudes are intrinsic to their structure and an essential part of their culture.
Culture is the key word here. All employers now accept that to succeed they need a successful culture in their organisation. They must also accept that to be truly successful in human terms it must be a culture where discrimination in all its forms is excluded.
The above material was based on research he carried out for the new film: Discrimination at Work. Other films in the series can be viewed on the People In Organisations sie. For more information please visit www.tvchoice.uk.com.