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Ban O Ban: Identifying and Preventing Discrimination

Due to President Trump’s attempts to restrict travel to the US for nationals of certain countries, the issue of racism is at the forefront of political and social discussions. An executive order imposing a temporary ban in respect of seven Muslim-majority countries came into force on 27 January but was subsequently halted by a federal judge. The 9th US Circuit Court of Appeals determined that the ban should not be reinstated, but “The Donald” has instead issued a new, slightly revised ban, removing one of the countries and amending a few of the particularly problematic restrictions.

However, the amended executive order was quickly challenged by a number of US states. One key question is whether the order itself is anti-Muslim. The arguments against this view include the fact that many other Muslim-majority countries, representing the majority of Muslims globally, are unaffected. However, critics point to President Trump’s rhetoric during his election campaign regarding the banning of Muslims more generally, and considered this to be the first step down a slippery slope.

In the UK, discrimination on the grounds of protected characteristics, including race, religion, nationality or ethnicity, is prohibited in respect of certain activities, including the provision of goods and services and in respect of employment (both in the recruitment stage and during an employee’s tenure). There are four key types of discrimination: Direct, Indirect, Harassment and Victimisation. So what are the differences between these types of discrimination?

 

Direct Discrimination

This is generally the most recognisable type of discrimination. It occurs where, because of a protected characteristic, person A treats person B less favourably than they treat or would treat others. The reason for the less favourable treatment is therefore key, whether this is a conscious or subconscious reason.

There are only limited defences to a direct discrimination claim, including a genuine occupational requirement (e.g. an acting or modelling role requiring a female), positive action and other statutory provisions requiring or allowing discrimination. 

 

Indirect Discrimination

This is a more common form of discrimination, and can be harder to identify. It occurs when the employer (A) applies a provision, criterion or practice (PCP) to staff including a person with a protected characteristic (B). As the PCP is applied to those who do not share B’s protected characteristic, it may be seemingly neutral. However, if the PCP puts or would put people with that protected characteristic at a particular disadvantage compared to others (and it puts or would put B to that disadvantage), the PCP is indirectly discriminatory.

For example, a requirement for employees to work full time may be a PCP. As a group, women are disadvantaged by such a policy as generally in society they are more likely to have childcare responsibilities than men and are more likely to require part time work. This PCP would therefore be indirectly discriminatory towards a woman to whom the PCP was applied.

However, unlike direct discrimination there is a defence of objective justification available. If A can demonstrate that the PCP is a proportionate means of achieving a legitimate aim, the discrimination will not be unlawful. In the example above, it may be entirely justifiable in the circumstances to require employees to work full time due to the genuine needs of the business.  Proportionality is a key consideration.

 

Harassment

Harassment occurs where person A engages in unwanted conduct 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, and that conduct is related to a relevant protected characteristic. There are additional definitions in respect of sexual harassment. Such behaviour may include inappropriate comments or jokes, targeted bullying, or even a failure to be inclusive.

Unsurprisingly, most employment-related harassment is conducted by an individual’s colleagues. As employers are vicariously liable for the actions of their employees, they may become liable for any acts of harassment. However, they may also be liable for the actions of third parties, such as clients or customers, if they were aware that the employee had previously been harassed by that third party. In order to have a defence, employers must demonstrate that they took all reasonable steps to prevent discriminatory acts. The simplest way to ensure this is to have appropriate staff training and to step in as soon as any potentially discriminatory acts becomes known, including starting disciplinary proceedings if required).

 

Victimisation

Victimisation occurs when person A subjects person B to a detriment because B has raised, or A believes B is likely to raise, a complaint or claim regarding discrimination or harassment. This protection is afforded to ensure victims of discrimination and harassment are not deterred from bringing such complaints or claims simply due to a fear of recriminations by the employer; such recriminations are in themselves unlawful.

 

Preventing discrimination

The first step to preventing discrimination is knowing the relevant laws, but in order to fully protect their business employers should ensure that they have suitable, comprehensive anti-discrimination policies in place. These should be communicated to staff, either as standalone policies or as part of a staff handbook, and preferably reinforced by staff training.

Having suitable disciplinary and grievance procedures in place can also assist in ensuring complaints of discrimination or harassment are properly investigated, and that offenders are suitably disciplined. Risk assessments should be undertaken in respect of any PCPs being put in place to consider whether they place any groups at a particular disadvantage.

 

Matthew Cranton - Employment & Immigration

This article was first published on 16 March 2017 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.