Equal Opportunity Law Sex and Race Discrimination Employment Law, 5th edition, 2003, Tom Harrison, ch.6

Introduction Sex and race discrimination – definitions Unlawful acts Time limits Direct discrimination Sexual and racial harassment Indirect discrimination Victimisation Lawful discrimination – GOQ/GOR Enforcement and remedies Disability discrimination

Sex and race discrimination The Race Relation Act 1976 and Sex Discrimination Act 1975 as amended, identify direct, indirect discrimination and victimisation Recent amendments – Sex Discrimination (Indirect Discrimination and burden of Proof) Regulations 2001 has amended the definition of indirect sex discrimination by changing the scope of indirect discrimination. The need for ‘requirement or condition’ is replaced by the broader concept of a “provision criterion or practice”

Definitions SDA 1975 – discrimination on grounds of gender, marital status, by treating a married person less favourably than an unmarried person; RRA 1976 – discrimination on racial grounds, based upon colour, race, nationality, or ethnic or national origin; Discrimination based on religion – Seider v Gillet Industries 1980 the EAT held that “Jewish” can mean membership of a particular race or ethnic group as well as religion. Also in Mandla v Dowell Lee 1983 the HL held that Sikhs were a racial group within the meaning of the Act

R R Act,1976 / SD Act, 1975 Direct discrimination This occurs where one person: treats another less favourably on racial, grounds e.g. by segregating workers by race. S.(1)(a) This occurs where one person: treats another less favourably on the grounds of sex or marital status e.g. by providing women with different working condition or selecting married women for redundancy – s.1(a), s. 3(1)(b)

R R Act,1976 / SD Act, 1975 Indirect discrimination This occurs where one person: Requires another to meet a condition which as a member of a racial group is less easily satisfied because: (a) the proportion of that group who can comply with it is smaller; and (b) The condition is to the complainant’s detriment and is not justified Example: if an employer required young job applicants to have been educated only in Britain. S. 1(1)(b) This occurs where one person: Requires another to meet a provision criterion or practice which as a member of a particular sex or as a married person is less easily satisfied because: It is to the detriment of a considerably larger proportion of women than man Example if an employer advertised for a clerk who is at least six feet tall. S.1(1)(b),S. 3(1)(b)

R R Act,1976 / SD Act, 1975 Victimisation This occurs where one person: Treats another less favourably because the other has given evidence or information in connection with, brought proceedings under, or made allegations under the Act against the discrimination. S.2 This occurs where one person: Treats another less favourably because the other has given evidence or information in connection with, brought proceedings under, or made allegations under the Act or the Equal Pay Act 1970, against the discrimination. S. 4

Unlawful Acts In relation to employment – any discriminatory practice which comes within of the three categories (direct, indirect or victimisation) is unlawful; S. 6 of the SDA and S.4 of the RRA are similar in format and relate to discrimination by employers in the recruitment process, at the workplace and in relation to the termination of employment;

Unlawful Acts in the recruitment process – discrimination in the arrangements he makes for the purpose of deciding whom should be offered employment, the terms offered or refusing to offer; at the workplace ( employment relationship)– access to opportunities for promotion, transfer, training or any other benefits or refusing to afford such access; and in relation to the termination of employment – dismissing the complainant or subject him to any other detriment

Time limits Complaints are made to the ET – three months from the act or last act of discrimination; “continuing act” – EAT in Sougrin v Haringey Health Authority – is a rule or regulatory scheme which during its currency continues to have a discriminatory effect on the grounds of sex or race; If the complainant is out of time – the tribunal still has the jurisdiction to hear the complaint if it is “just and equitable in the circumstances’

Direct discrimination reasons – treats another less fouvarably on the grounds of sex, race or marital status; In allegations: the formal burden of proof in direct race discrimination is on the complainant. In direct sex discrimination (a new s. 63A is inserted into the SDA 1975, (Indirect discrimination and the burden of proof) Regulation 2001) is the respondent; “where on the hearing of the complaint, the complainant proves facts from which the Tribunal could… conclude …that the respondent had committed an act of discrimination against the complainant which is unlawful… The tribunal should uphold the complaint unless the respondent proves that he did not commit that act”

Sexual and racial harassment Racial harassment constitutes unlawful direct discrimination under RRA; The European Race Directive 2000 definition - “unwanted conduct relating to racial or ethnic origin takes place with the purpose of or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading. Humiliating of offensive environment” The employer could be made vicariously respondent;

Sexual and racial harassment - range of conduct Physical attacks; Brushing against the victim; Making suggestive statements or telephone calls; Pressuring the victim to enter into a sexual relationship; Sending the victim suggestive material;

Employer vicariously liable for his employees for sexual or racial harassment Liability imposed under SDA, s. 41 (1);”Anything done by a person in the course of his employment shall be treated for the purpose of this Act as done by his employer as well as by him, where or not it was done with the employer’s knowledge or approval. The victim of sexual harassement at the workplace has a potential claim for unlawful direct sex discrimination, victimisation or even unfair dismissal;

Indirect discrimination A complainant of indirect discrimination can be brought under the UK legislation or the Equal Treatment Directive; ‘ a provision, criterion or practice’ – a discretionary criterion could be indirectly discriminatory;

Victimisation To establish victimisation it is necessary to establish that the less favourable treatment suffered was ‘significantly influenced’ or an “important cause’; Unsuccessful applicantion for a vacancy because the interviewers were consciously or subconsciously influenced by the fact that he or she had brought proceedings; Refusal to provide a reference as a reaction of her previous claim for unlawful discrimination; Correct approach to determining victimisation –to compare treatment b/n the complainant and the other employees

Lawful discrimination Both SDA 1975s. 7(2) and RRA 1976 s.5(2) identify circumstances where it is lawful to discriminate in the recruitment of staff-GOQ (genuine occupational qualification) GOQ defence only applies to the making of a job offer, or access to promotional, training or other benefits. ( not applicable in case of detriment or dismissal) If a job applicant shows on the balance of probabilities that an act of direct or indirect discrimination has occurred it is open to an employer to establish as a defence that being of a particular sex or racial group is a GOQ; the categories of GOQ under SDA s.7(2) – nature of the job, the nature of location, the nature of the establishment etc.

Enforcement and remedies By individual complaint to an employment tribunal The role of the commission for racial Equality and the Equal opportunities Commission is an exclusive one; Remedies : An order declaring the rights of the parties; An order requiring the respondent to pay the complainant damages; A recommendation of action to be taken by the respondent to reduce the adverse effect of discrimination;

Disability Discrimination The unlawful act – under s.5 (1) DDA 1995; the employer discriminates on reasons related to the disability The employer treats that person less favourably than he treats or would treat others to whom that reason does not apply; and If, and only if, the employer cannot justify the less favourable treatment The employer fails to comply with any duties to make adjustment imposed by the 1995 Act; and if, and only if, the employer cannot justify the failure to comply with the duty

Disability Disability is defined as ‘a physical or mental impairment which has a substantial and long term adverse effect on the persons ability to carry out normal day to day activities” – evidence Reasonable adjustment – arrangements of premises Justification – it must be by reference to a reason which is both substantial and material to the circumstances of the particular case – risk assessment, “reasonable response test”