On 28 February 2016, the 88th Academy Awards took place in Hollywood. The Academy had taken a lot of criticism for its failure to nominate a single black person amongst its 20 nominations in the main acting categories, leading to calls for a boycott. Chris Rock, the comedian chosen to host the ceremony, was encouraged to quit, but instead used his opening monologue to give his view on the mainstream movie industry’s failure to improve diversity. The issue, he suggested, was a lack of opportunity in Hollywood for ethnic minorities.
Rock also pointed out that discrimination exists openly in respect of other characteristics. “There’s no real reason for there to be a men and women category in acting,” he said. “You don’t have to separate them. Robert De Niro never said, ‘I better slow this acting down so Meryl Streep can catch up’.” Yet similar disadvantages regarding opportunities in Hollywood still apply for women, who also experience discrimination in pay and have reported struggles in respect of age discrimination.
It is easy to think that the issues that exist within the glamour of Hollywood are a world away from those in workplaces in the UK, but it is every employer’s obligation to ensure that its employees and job applicants are not discriminated against. The Equality Act 2010 (EqA) prohibits discrimination, harassment and victimisation in employment. But what does this mean for employers?
Firstly, the EqA is concerned with discrimination and harassment in respect of defined “protected characteristics”, being: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation. Some of these characteristics are easier to define than others; for example, “race” includes colour, nationality and ethnic or national origins, whilst there is plenty of case law regarding whether particular beliefs fall within the protected class.
Next, employers must understand the different types of discrimination that can occur. Direct discrimination occurs where, because of a protected characteristic, a person (A) treats another (B) less favourably than they treat or would treat others. An employer cannot argue that such discrimination can be objectively justified, save in respect of age discrimination. However, certain (limited) defences are available, such as a genuine occupational requirement. For example, it would be fair to recruit a white actor to play the lead role in a biopic specifically about a white person such as Steve Jobs or Dalton Trumbo.
Indirect discrimination occurs when a policy, criterion or practice (PCP) is applied which is not intended to treat anyone less favourably but which in practice places people with particular protected characteristics at a disadvantage. For example, a requirement that all employees must work full time could disadvantage women, since women (as a group) are more likely to have childcare responsibilities than men and therefore have a need to work part time. Such treatment can be objectively justified; that is to say that the employer can defend such indirect discrimination by evidencing that the application of the PCP is a proportionate means of achieving a legitimate aim. A requirement to work full time, for example, could potentially be justified due to a genuine commercial need to have continuity in the provision of services during working hours.
Discrimination arising from a disability is also prohibited, though this does not apply to any other protected characteristic. This type of discrimination occurs where person A treats person B unfavourably because of something arising in consequence of B’s disability, for example dismissal of an employee because of a poor absence record caused by them having a number of disability-related absences. Whilst someone without the same disability but with the same absence record would be treated the same way, the disabled employee has been treated unfavourably because of something arising in consequence of their disability. As with indirect discrimination, the defence of objective justification is available. There is also an obligation on employers to make reasonable adjustments to accommodate the needs of disabled employees.
Finally, employees are protected from both harassment and victimisation. Harassment occurs where person A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either violating person B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. There are also specific definitions in respect of sexual harassment. Victimisation occurs when person A subjects person B to a detriment because B has done a protected act (such as bringing a discrimination claim or complaining about harassment or A believes that B has done, or may do, a protected act).
Employers are encouraged to have an equal opportunity policy in place and to ensure that employees, particularly decision makers, receive training regarding their obligations.
Matthew Cranton - Employment & Immigration
This article was first published on 11 March 2016 as part of our Employment Law Update series. Register above to receive our updates as soon as they are published, directly to your inbox!
This article is offered for general informational purposes only, and does not constitute legal advice. The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the views or opinions of Solomon Taylor & Shaw.