Equality Analysis and Tools that Stimulate Effective Diversity Management Paul Lappalainen, JD (US), Jur kand (Sweden) Head of the 2005 Swedish Government Inquiry - The blue and yellow glass house: Structural discrimination in Sweden (In addition, Sweden’s deputy member of ECRI, Scientific advisor to UNESCO’s European Coalition of Cities Against Racism. Board member of OSI’s AT HOME IN EUROPE PROJECT, Senior advisor with the Swedish Equality Ombudsman.) Non-Discrimination Mainstreaming and Diversity Management: From Theory to Practice, Thursday 12, February 2015 at the Union Journalists House, 12 RIK Avenue, Aglantzia, Nicosia, Cyprus

Overview -Some basics from the Glass House inquiry re discrimination and tools for change -Background of diversity in the US, the move to Europe and some key issues -Tools that can stimulate effective diversity management

Discrimination in working life?

Equal treatment at work?

People form structures, structures form people Structures/institutions Norms, routines, accepted behavior patterns Individuals behavior, attitudes

Racism och discrimination in Swedish history Sweden, it is thought, lacks a history of racism and discrimination ethnic minorities. It is like saying that Sweden lacks a history of discrimination against women, the disabled, homosexuals. Basically a shared history with Europe

Do you have prejudices? Do you use them?

Who is free from prejudice? Harvard Implicit Association Test ( ) People with openly racist and sexist opinions have the same levels of underlying prejudices as “non- racists” and “non-sexists” Blindspot: the hidden biases of good people (2013) Difference between the man on the soap-box and those in the crowd?

Another description of structural discrimination ? Stale Pale Male &

Changing attitudes or behaviour? Earl Warren – Chief Justice US S Ct “There was ‘an invidious view which is now held by many that you can't wipe out racial discrimination by law, only through changing the hearts and minds of men’. Warren disdained that as a ‘false credo. True, prejudice cannot be wiped out, but infliction of it upon others can.’” In other words, make discrimination cost.

Diversity – the US and Canada 1960s/70s – US anti-discrimination laws lead to damages awards, including class actions 1960s/70s - US anti-discrimination clauses in public contracts require employers to counteract discrimination and promote affirmative action. Otherwise risk losing contracts. 1980s – Business starts supporting the business case. Turn a negative into a positive. ”diversity pays”

Does diversity pay in the US? Business turned the negative into a positive. A key part of diversity work is non- discrimination and public contract equality requirements. Short run benefit - prevention of discrimination claims and access to public contracts. In addition the “diverse” groups are current or future workers and consumers. Convinced themselves that diversity pays.

Diversity – Sweden and the 90s 1990s – Swedish businesses heard the message of diversity from the US. About a new law against ethnic discrimination they asserted that a new law was not needed, they believed in diversity. The law was passed in Diversity is increasingly in focus. Why?

Why the interest in diversity? Diversity is easier, especially if you can separate it from the issue of discrimination. Counteracting discrimination maintains a focus those with power to discriminate (and counteract discrimination) – employers, unions, politicians, and civil servants. Diversity or diversity management which ignores discrimination moves the focus to those ”other” people / ie how can their special qualities benefit the employer.

Diversity without non-discrimination ignores a key issue HOW DID THE LACK OF DIVERSITY OCCUR IN THE FIRST PLACE? If you have a workplace where all of the managers are white, male and middle- aged and a diverse population in society – what happened? Are there eg no qualified women, ethnic minorities, disabled people?

Discrimination 1(3) Hi, I’m applying for the job Sorry! Blackskull!

Discrimination 2(3) Hi, I’m applying for the job Sorry! Soon pregnant!

Discrimination 3(3) You always know when the personal chemistry just doesn’t work!

By ignoring the equality of merits (weighing similarities) diversity can become an issue of a focus on ”their” difference? IN OTHER WORDS, can women, ethnic minorities, disabled people, homosexuals help in accessing new markets? What is their special value? And not do they have the same or better qualifications?

Swedish (European) “integration” policy for many years A negative spiral Disempower- ment Denial of discrimination Lack of diversity = failure to take into account the individual’s competence

Daddy, how do you find a job? You go to the university, move out of the country, and hope to get a transfer back to Sweden! A SWEDISH PROBLEM?

Tools to stimulate effective diversity management Ensure that discrimination carries with it cost risks If this is done those with the power to discriminate will often refrain from discrimination. This will in turn lead to greater diversity. If you get greater diversity, then you need to discuss diversity management. Managing real diversity is not easy. It can be a pain to convince a diverse group to show respect for each other.

Themes related to diversity Public contracts and equality in the EU - anti-discrimination clauses in national, regional and city contracts Employment contracts of managers Equality testing - quality controls on the recruitment process Consultation – Participation with the targets of discrimination Equality Data Collection - What data is available? What are the needs of your organisation? Equality Plans - ensuring equality in recruitment, attracting a broader diversity of qualified candidates, ensuring equality and respect in the workplace

Making discrimination cost Laws are often reactive, they put pressure on the person discriminated against to complain etc Other measures put pressure on those with the power to discriminate and thus can lead to proactive measures Anti-discrimination clauses in public contracts – they are legal and effective. Businesses that risk losing contracts, will probably promote diversity

Elements to consider in a clause? CONTRACTOR AGREES TO FOLLOW THE NATIONAL LAW AGAINST DISCRIMINATION DUTY TO REPORT APPLY TO SUB-CONTRACTORS RETAIN THE RIGHT TO CANCEL THE CONTRACT OR OTHER REMEDIES

Equality testing If a diversity policy includes a non- discrimination/equality focus, the policy can be tested, especially by larger employers. The purpose of such testing is to determine if there are indications of problems and not to accuse individuals. (Quality control testing of policies). Training programs based on such indications will have greater practical effects re participants.

All discrimination grounds An effective diversity policy etc, at a minimum, should apply to all grounds covered by law Europe has had too much competition between the different grounds, rather than putting equality into focus

All too common? I want the same salary as my Swedish co-workers! The men or the women?

Equality data and equality plans Equality Data Collection - What data is available, especially re gender, ethnicity and age? How does your organization compare to the society at large? What are the needs of your organisation? Equality Plans - ensuring equality in recruitment, attracting a broader diversity of qualified candidates, ensuring equality and respect in the workplace

A positive spiral Empowerment Counteract discrimination Diversity that takes account of the individual’s competence

Aha! Now I see them...!

Wasn’t that easy? Thanks for your attention! Page 32

Anti-discrimination clause § 1 The supplier shall throughout the contract period, in his business activities in Sweden, follow the applicable anti-discrimination laws. The laws currently referred to are Article 141 of the EU Treaty, 16:9 of the Swedish Penal Code, the Swedish Gender Equality Act (1991:433), the Act on measures against ethnic discrimination in working life (1999:130), the Act banning discrimination in working life against persons with a disability (1999:132), the Act banning discrimination in working life due to sexual orientation (1999:133), the Act on equal treatment of university students (2001:1286), and the Act prohibiting discrimination (2003:307). § 2 The supplier, during the contract period, has a duty, at the request of the contracting entity, to provide a written report concerning the measures, equality plans etc., that have been undertaken in accordance with the duties specified in § 1. The report shall be submitted to the city within one week after a request is made unless some other agreement has been reached in the individual case. § 3. In his or her contracts with sub-contractors, the supplier shall apply the same duty to them as is specified in § 1. The supplier shall be responsible to the contracting entity for a sub-contractor’s violation of the anti-discrimination laws specified in § 1. The supplier shall also ensure that the contracting entity can upon request be informed of the sub-contractor’s measures, plans etc. in accordance with §2. § 4 As it is of very substantial importance to the contracting entity that its suppliers live up to basic democratic values, a violation of the duties in §§ 1-3 shall constitute a significant breach of the contract. The contracting entity therefore has the right to cancel the contract if the supplier or a sub- contractor violates the conditions in §§ 1-3. However, the contract will not be cancelled if the supplier immediately remedies the situation or undertakes other measures with the purpose of achieving compliance with the laws specified in § 1, or if the violation is considered to be insignificant.

Various sources I Concerning UNESCO’s European Coalition of Cities Against Racism (ECCAR) ee ECCAR’s 10 point Action Program a-engl-unesco.pdf a-engl-unesco.pdf Report to the Council of Europe’s Congress of Local and Regional Authorities Social approach to the fight against racism at local and regional level On the web at Resulting recommendation 246 (2008) And resolution 264 (2008) at =original&Site=COE&BackColorInternet=DBDCF2&BackColorIntranet=FDC8 64&BackColorLogged=FDC864 European Union Charter for Equality between men and women

Various sources II AT HOME IN EUROPE – PROMOTING INCLUSION. Open society foundations Muslims in European Cities. Somalis in European Cities. Excluded Majorities. ENGLISH SUMMARY in Det blågula glashuset: strukturell diskriminering i Sverige SOU 2005:56, (The Blue and Yellow Glass House, Structural Discrimination in Sweden) ENGLISH SUMMARY in Diskriminering dröjer kvar, (Discrimination Remains) och2.pdf 1och2.pdf ENGLISH SUMMARY in Ingen diskriminering med skattemedel, (No Discrimination with Public Funds) Integrationsverkets rapportserie 2000:7, “Active measures in Sweden – in theory and in practice”, Lappalainen, Al- Zubaidi and Jonsson boell.de/web/diversity/48_2666.asp

Various sources III US ANTIDISCRIMINATION LAW – REMEDIES AND SANCTIONS: LESSONS AND PITFALLS FOR THE EU, Paul Lappalainen, in Discrimination in Working Life (2004) edited by Janet Cormack Proving Discrimination Cases - the Role of Situation Testing. Isabelle Rorive with a contribution by Paul Lappalainen, See ENARgy 17. In particular “Institutional Racism in Sweden and Europe” AN INTERSECTIONAL APPROACH TO DISCRIMINATION: Addressing Multiple Grounds in Human Rights Claims. Ontario Human Rights Commission pproach_to_discrimination%3A_Addressing_multiple_grounds_in_human_rig hts_claims.pdf pproach_to_discrimination%3A_Addressing_multiple_grounds_in_human_rig hts_claims.pdf