November 30th, 2017 | Sterling

Workplace Discrimination – How to Avoid It and Stay Compliant

Discrimination can take many forms from discriminatory hiring practices to cyberbullying to sexual harassment. It happens both in and out of the workplace. Today’s news cycle is filled with victims coming forward and the accused being taken to task.  Sterling has hosted a series of webinars focusing on Employment Law for HR.  In the most recent webinar entitled, “Workplace Discrimination and Hiring Compliance”, Emma O’Leary, Partner at Essential Solicitors LLC, explained what are the different types of workplace discrimination, what is meant by ‘protected characteristics’ and how to meet compliance obligations and avoid basing hiring decisions on discriminatory candidate information.

What is a Protected Characteristic?

The Equality Act 2010 legally protects people from discrimination in the workplace and wider society. It replaced previous anti-discrimination laws with a single Act, making the law easier to understand and strengthening protection in some situations. The Act sets out the different ways in which it’s unlawful to treat someone. A wide range of industries are covered by the act including government departments, service providers, employers, education providers, providers of public functions, associations and transport providers.

People are not allowed to discriminate, harass or victimize another person because of protected characteristics listed under the Equality Act 2010. There is also protection against discrimination where someone is perceived to have one of the protected characteristics or where they are associated with someone who has a protected characteristic.

Below are the nine protected characteristics under the Act and a definition of each:

• Age: People of all ages or range of ages
• Sex: Male or Female
• Sexual Orientation: Sexual preference to one’s own sex, the opposite sex or both is considered a protected characteristic.
• Disability: Physical or mental impairment which has a substantial and long-term adverse effect, including illnesses such as a cancer diagnosis, HIV or visual impairment that could affect everyday For example, alcoholism is not considered in and of itself a disability, but if it is linked to another condition, most commonly depression, then the depression could amount to a disability, but not the alcoholism itself.
• Religion or Belief: Religious protected characteristics include any clearly structured religion or philosophical beliefs as well as employees or job seekers who do not follow a certain religion or have no religion at all.
• Marriage & Civil Partnership: The protected characteristics covers marriage to one’s own sex or the opposite sex.
• Race: A group is defined by their race, colour, nationality and ethnicity.
• Gender Reassignment: Transitioning from one gender to another is a protected characteristic.
• Pregnancy & Maternity: A woman is protected under the period of pregnancy and the 52 weeks of maternity leave following birth.

According to Emma O’Leary, the word “underrepresented” in terms of a protected characteristic does not take into account the demographics and the make-up of the geographical area. “Overall, the employer must believe that the candidate with the protected characteristic suffers a disadvantage or is underrepresented in that particular activity. And it would still have to be a proportionate means of achieving a legitimate aim.”

Types of Workplace Discrimination

There are many types of unlawful workplace discrimination, from direct or indirect discrimination to straight-up harassment:

• Comparators: Comparing treatment with the treatment of someone else who doesn’t have the same protected characteristic
• Direct Discrimination: Treating an employee less favourably because of their protected characteristics
• Indirect Discrimination: Having a provision, criterion or practice that disadvantages a particular group or person with a protected characteristic
• Associative Discrimination: Being treated less favourably on account on your association with another person having a protected characteristic
• Harassment: unwanted conduct relating to a relevant protected characteristic, which as the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual
• Victimisation: Being treated poorly after making a complaint under the Equality Act 2010

To have a compliant hiring programme, companies may wish to consider using algorithm-driven recruitment tools to help remove conscious and subconscious discrimination. Organisations should provide Equality and Diversity Training to all staff, but especially their HR team and hiring managers. Employers may want to consider developing a documented background screening policy  which takes into account protected characteristics and other provisions under the Equality Act 2010.

How to Meet Compliance Obligations During the Hiring Process

It is crucial for hiring managers to get training to eradicate the bias that could occur during the hiring process. Everyone who is interviewed should be treated with the same hiring criteria and go through the same process. What happens if you don’t comply with Equality Act 2010 protections?  There can be a possibility of prosecution, but those cases are rare. The common repercussions include disciplinary action including dismissal, going before an Employment Tribunal and the publicity that goes along with these cases, financial consequences and reputational damage.

For a company to stay compliant with anti-discrimination laws, it is advisable for them to review their current recruitment policy. Organisations should consult with legal counsel for guidance on creating a compliant hiring and background screening policy. For the application process, companies should consider advertising only genuine occupational requirements for the position. Also, remove the temptation of worplace discrimination by ensuring the job applications do not have the date of birth or names and dates for education. Companies should only host structured systematic interviews to all applicants. Most importantly, employers should continue to monitor diversity in the workplace and review their background screening policies.

Learn more how to meet Equality Act 2010 compliance obligations and avoid basing hiring decisions on discriminatory candidate information by accessing the OnDemand version of the “Discrimination and Hiring Compliance” webinar.

Please note: Sterling is not a law firm. The material available in this publication is for informational purposes only and nothing contained in it should be construed as legal advice. We encourage you to consult with your legal counsel to obtain a legal opinion specific to your needs.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.