Confusion over discrimination
January 29, 2008
Discrimination is such a tricky subject in the workplace, and something I often debate with colleagues. It can be very hard to determine what is discriminatory, and what is a “proportionate means of achieving a legitimate aim”, i.e. what can be justified in order to maintain the effective running of the business. This is a particularly grey area when it comes to the ability to speak English clearly, as the requirement to speak and write English could indirectly put people of a certain race, ethnic origin or national origin at a disadvantage.
In my organisation, all employees are required to speak regularly over the phone to customers, communicate over email, and generate documents such as reports. I think it can be assumed that the need to speak and write clearly in English is a genuine requirement. However, the decision over what constitutes an acceptable level of English is subjective and could be argued. What if an interviewer thinks “I can just about understand the candidate but I know some of our customers won’t like it if they have trouble understanding them…”?
Having a very clear job description and person specification helps in this situation, as there are many factors to consider in the candidate’s skills and experience, with the use of English being just one factor. Balancing all the needs of the job against each other helps to establish the candidate’s all round suitability, and also helps interviewers to consider other options; for example if the candidate had excellent skills and experience but was lacking in English language abilities, could they carry out the job without the client-facing aspects? Many people might say no: no matter what they can do, if they can’t communicate effectively in English, they can’t work in this company. However, could we be missing out on a large pool of highly skilled workers with this attitude? I suppose it depends on how much of an adjustment to the workplace or the job role would be required to accommodate this type of worker.
I have been asked several times in my HR career why employers have to treat people differently if they’re from a minority group. The idea is we don’t have to treat people differently; we have to give everybody a fair chance, an “equal” opportunity. The “difference” is that certain groups are protected from discrimination on the grounds of race, religion, sex, age and other aspects. I do agree that sometimes it can feel like employers have to do a lot more to accommodate these differences, when I think the overriding idea is that the legislation is supposed to make employers treat all employees as equal. I know the legislation is there to penalise unscrupulous employers, but for others it can sometimes feel difficult to make decisions on recruitment, discipline etc without feeling nervous about the possibility of legal consequences if there is a protected group involved.
The more I read about and handle issues of discrimination, the more I find it a scary minefield. Given the unlimited compensation available for successful discrimination claimants, I just hope I don’t one day find out the hard way how best to handle these issues.
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2 Responses to “Confusion over discrimination”
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I find it strange that these policies exist to prevent discrimination, yet as you said:
“certain groups are protected from discrimination on the grounds of race, religion, sex, age and other aspects”
Why aren’t we all protected on these grounds? Isn’t the fact that everyone isn’t treated equally just as much a discrimination as the acts it sets out to prevent?
What I always hate is when I fill out a job application, or even University application, the form always asks for my ethnic origin on the basis that they operate an equal opportunities policy. Surely if they truly offer equal opportunities then my ethnic origin is irrelevant?
What they should say is that they have quotas to fill, and knowing my ethnic origin helps them fulfil these quotas so they ‘appear’ to not discriminate.
It’s all very hypocritical to me.
You make a good point Darren. The fact is though, you are protected from discrimination legally, but the difference is that you may not be in a “minority” group and therefore unlikely to be treated less favourably due to your sex, race, age etc. If you had been treated less favourably due to something covered under discrimination law you would be just as entitled to claim.
Filling diversity quotas through what’s called “positive discrimination”, i.e. choosing or rejecting people based on their race, sex, age etc in order to increase diversity is no longer lawful. instead, fims practice “positive action” which targets specific groups in order to encourage them to apply but does not make decisions based on these factors.