The Employees Protection Legislation to Ensure that Discrimination is Eliminated within the Workplace - Case Study Example

Introduction The United Kingdom legislation on the rights of all the workers, embedded in the Commission on Equality and Human Rights of the year 2006 has over time attempted to reduce the incidences of discrimination within the work place. In relation to this, most corporations or organizations whether public or private have adopted similar non discriminatory policies, in line with the policies put down by the employees' protection legislation to ensure that discrimination is eliminated within the workplace. Discrimination takes many forms including discrimination due to; race, sex, physical disability, age, diseases for example AIDS, body stature, national origin, religion and colour among others. Even though much have been done to prevent incidences of discrimination, a lot of employers find themselves stuck in dilemma over who to employ without seemingly practicing discrimination. Such kind of a situation is made possible by the fact that the policies adopted for prevention of discrimination often times display great discrepancy between practical employment and the theoretical practice. When confronted by such a situation, most employees opt to take on steps that may help them navigate around the problem yet the results of such situations may be translated as discriminatory. In any case, a great number of employers seek to employ the most suitable candidates for the positions that lay vacant and for the sake of performance, employers attempt to offer the best environment for their employees. The environment includes the physical as well as the social environments in which the employees can perform to their maximum best. With these considerations to make, the employer has to make careful selection of the most suitable individuals for their vacant positions. The policies that prohibit against discrimination of people in the workplace apply to all points in the employment including the advertisement for a vacant position, the actual interviewing of persons, when the employee is hired, during the exercise of firing, in times of allocating benefits, during retirement and in the practice of lay off among other points. This paper will undertake to make a report on the possible best practice and legally approved policies that would have been applied on two cases in which situations that looked discriminatory may have guided the elimination of aspiring candidates for two different positions. Case study 1; emerging issues The first case sites a competently qualified individual who had a gay sexual orientation. The man had passed all the necessary tests and the interview and the interviewing panel for the local authority admitted that he was among the eight highly qualified individuals for the position of an apprentice electrician. Even though the panel decided not to deny him the opportunity because of his sexual orientation, they figured that his working environment might not prove conducive for performance. It was with this consideration that the panel dismissed him for the job. The rights of employment that regards the sexual orientation of the employees or the employees to be are embedded in the Commission on equality and human rights. The commission aims at reducing any form of discrimination against transsexual people at all levels of employment. The transsexual people include the gay and lesbian individuals within the workplace. In fact, the regulations are not only enforced by the commission at the national level but also at the level of the local authorities. This then suggests that the local authority in which the man in this case could be held accountable at the local level for displaying discrimination towards the man. To make the impact even greater, the policies governing gender equality also cover the transsexual individuals found within the work place or those who are at the recruitment level. This therefore suggests the myriad of constitutionally recognized areas that could be used against the local authority in this case study. It is quite apparent that the authority was on the wrong as per the evidence given in the above case. Despite all these, there arises a problem with the employment of the Act on the ground due to some constitutional loopholes that have been recognized. As it apparently is, the Act does not enforce the requirement of the regulations set under it. This means that the gender variant individuals (gays included), are not adequately covered by the requirements of the Act. This situation has the result of disabling the Commission from adopting any relevant steps as a way of protecting the transsexual people (Cormack and Osborne 1993 p196). Despite the Regulation that the federal law covers employees found under it, a number of states have come up with laws that prohibit discrimination based on the sexual orientation of individuals in employment. Some of these states include Minnesota, New Mexico, Vermont, California, Illinois, Vermont and Washington among others. These states observe this law in both the private and public sectors. This means that if the man was hailing from any of the states that observe the law that prohibits discrimination based on the sexual orientation of the employee, then the local authority was guilty of breaking the law. The local authority in this case should have considered his ability to perform over the probability of having a hard time while working. Still, the local authority would have helped the man to have an environment conducive for performing by enacting accommodative policies that would have ensured that the man could not be discriminated against in the course of his work. In the light of the stated evidence, it was possible that that the local authority did display a tendency to discriminate against the man (Nolo 2009). Under the EHRC, individuals charged with recruiting and welfare of the employees is prohibited from discriminating against individuals by virtue of their conduct or behaviour that doesn't negatively affect the performance of the individuals, whether an employee or an applicant, in the workplace. If we look at the situation at hand, the gay sexual orientation of the man in question could not affect his performance any more than the other persons with different sexual orientations from his. This therefore qualifies the decision reached by the recruitment crew of the local authority to be discriminatory in nature. According to the EHRC as well, the recruiting team should not have taken this action knowing that it amounted to discrimination, which is ended up ruining the chances of the man in question taking the position (Jenkins and Solomos 1999 p117). The position of the man in question was not sought for but the decision to eliminate him from the run for the position was made without his in put. This means that there was a slim chance that the man could have opted to take up the job despite the risks involved in it. This stand is based on the regulations stated within the Commission of equality and the rights of humans which has included the prohibition of discrimination of persons within the workplace due to their sexual orientation within the prohibition of discrimination against persons on the basis of their conduct. This forms part of the requirements of the Regulations that helps to discourage against discrimination within the workplace Case 2; emerging issues The second case is about a 43 year old woman who displayed her interest to work as a porter within the authority. The authority felt that the woman would not be fit for the job due to her age which reflected the possibility of being physically incapable of handling the weighty goods that porters were expected to carry about. These goods include filing cabinets, furniture and awkward stationary. The woman was advised by a clerical assistant from the personnel department against applying for the said job since she had already been dismissed as unfit for the job. The case can be handled by a number of Acts that discriminate against age and discouraging persons to take up positions in employment before testing the suitability of the individual for a position. Discrimination based on the age of a current or prospective employee is addressed by the 2006 Employment Equality Act (in terms of age) Regulations which discourages discrimination in employment on the basis of age. The regulations protect individuals aged 50 years and above from discrimination in matters concerning, among others, hiring. The Act, among other things, strictly prohibits the specification of preference of ages and the age limitations when advertisements for various jobs are made. The aim of the Regulation is to provide equal opportunity to the qualified people interested in taking the job (Nolo 2009). This means that the level of skills and the possibility of good performance are viewed as the driving factors behind the employment of persons and not really the age of the individuals. Qualification for the position overrides the age factor, according to the Regulations. In this sense therefore, the authority may be considered as being guilty of discriminating against the lady as a result of her age. Though this may be so, the Regulation however realizes that the age of an employee may prevent her from performing to the required standard or from performing at all. In this case therefore, the Regulation allows for job specification in the event that the age of a person proves to be a bona fide requirement for the given occupation. Considering that at the age of 43 years old there is a great possibility that an individual is not really as strong as a 25years old counter part, or the individual might be weak enough to have problems with lifting heavy objects, then the porter's job could have age specifications. When the situation is looked purely on the basis of age, putting the other factors into a constant, then it is highly unlikely that a female of the age of 43 years can manage to lift heavy weights without hurting herself. In fact, there is a great possibility that she might be unable to lift the weights up as the job requires (Rachanee28 2009). The prohibited personnel practices also offer guidelines as to the situation in point. The practices prohibit the employers from, among other things, obstructing the prospective employee from competing for a position in employment. For as long as the individual has the required competencies for the position or the individual feels that she can compete for a position, the chance to do so must be availed. This can only be effected if the right and expected procedure is followed. In the light of this requirement, the authority can be held responsible for discriminating against the lady since the personnel within the authority failed to offer her the expected chance to compete fairly with the other prospective employees. The personnel did not only wilfully obstruct the lady from competing for the position but also influenced her, by pointing out that she would be unsuitable for the position, to withdraw from competing for the position. This is also considered offensive under the prohibited personnel practices. This again points to the fact that the authority might still be found guilty of discriminating against the woman and can be charged for the offence. This means that the authority discriminated against the woman for the sake of the other physically fit individuals to have higher chances of getting the job. This is not only wrong, but also highly discouraged by the federal law (Krislov 1997 P63). The 2006 Regulation prohibiting against the discrimination of employees due to their ages prohibits the limiting or classification or segregation of the old people in such a way that they are, among other things, deprived off the chance of getting the employment. As is implied by the case in point, the authority arbitrarily categorized the prospecting lady as unfit and weak for doing the job without even having the chance to judge her physical ability to carry out the porter's work. A good percentage of women are strong enough to undertake porters' role of carry weighty materials especially with the help of the machines and equipments such as cranes and trolleys respectively that helps to make the porters work much easier. Despite this, through team work where the employees assist each other with lifting heavy objects, porters find it much easier to carry the heavy objects from one point to another (Rachanee28 2009). The regulations on age discrimination explain that it is considered unlawful for the employees to opt out of referring a prospective employee for an employment due to the age of the employee. This provision was undoubtedly downplayed in this case since the woman, owing to her age was immediately dismissed as unsuitable for the position of a porter. The step adopted by the Act as it is being applied here is meant to cater for one of the aims of the Regulations which is to discourage the practice of setting age limits that tends to overlook the performance of the employee in favour of their age. This therefore take into consideration that the 43 year old woman may have had the potential to lift the heavy objects just like any other individuals who may have had an interest to work in the position (Burstein 1994 p 213-214). Discrepancies It is quite evident that the enactments of law that prohibit against the various forms of discrimination for the greater part of the time differ from the real situation on the ground. Employees often find themselves in situations that force them to make decisions that may be viewed as discriminating disregarding the fact that the intention might not really be to discriminate against the employees involved. Taking the first case of the man who had a gay sexual orientation, it may have proved hard for the man to comfortably work among the highly likely heterosexual work mates. Since sexual orientation discrimination is practiced by other employees as well as the employers, it might have been possible that the man could have been targeted for discrimination. The Act prohibiting against discrimination based on sexual orientation identifies sexual orientation discrimination as differently treating or harassing individuals perceived or known to be of a given sexual orientation. The cases of treating people differently, often negatively, due to their gay orientation have been known to give a hard social time for the victims leading poor performance in the workplace (Nolo 2009). Despite all these, the transsexual people are not adequately protected by the Equality and Human Rights Commission since the Regulations (EHRC) directing these requirements do not place enforcements for the requirement. The result of this is a limited policy activity. Since most of the advocacy is done by voluntary organizations, funding is often limited- a situation which curtails the reaching for justice. At the same time, the government of the United Kingdom as well as the commission have displayed reluctance to make it easier for the voluntary bodies to carry on with their work (Rachanee28 2009). In the second case of the 43 years old woman who was interested in the porter's work, we find that the personnel of the authority was reluctant to take her as an employee since they felt that she was not fit enough to take up the heavy manual job. On a medical note, Ostrowski et al documents that the bodies of people tend to loose their efficacy from the age of 40 years. He explains that as a result of age, cells loose their efficiency in their functions, rendering the bodies rather weak for most of the physical activities that people engage in. He explains that the circulatory system is often affected by slowed pulmonary function. He also points out the reduced performance of the lungs in gaseous exchange, the liver in removal of toxins from the body, and the muscle cells in performance. This might therefore seem reason enough to prevent an individual aged 43 years from taking up excessively strenuous activities that might at the end render their health poor. At the same time, as a result of the reduced muscle performance and strength, such individuals might be unable to perform to the expected level of the position (Ostrowski et al 2008). Conclusion The United Kingdom government and local authorities have made major steps to eliminate the incidences of various forms of discrimination within the public as well as the private sectors. The policies enacted to prohibit discrimination have helped to reduce discrimination in the work place. The enactment of policies within the workplace has however had challenges since recruitment teams and personnel often meet challenging situations that leave them at a dilemma on the best practice without indulging into discrimination. The task is not easy and most of the personnel are found guilty of discrimination by the law. Inadequate coverage of the law proves challenging in the fight for realization of justice. A move to reconcile the gap that presents itself between the enactment of the policies and the actual practice on the ground would prove helpful in eliminating this problem. References Burstein Paul (1994) "Equal employment prospect: labour market unfairness and public policy" Aldine transactions p 213 - 214 Cormack, Robert J & Osborne Robert D (1993) "Education, Religion, and Employment: aspects of equivalent opportunity in Northern Ireland" Appletree Press p 196 Jenkins Richard & Solomos John (1999) "Racism and equal chance policies in the 1980s" CUP Archive p 117 Krislov Samuel (1997) "The Negro in Centralized Employment: the quest for equivalent opportunity" University of Minnesota Press p 63 Nolo (2009) "Preventing discrimination" retrieved from http://www.nolo.com/article.cfm/objectId/E76BEBE6-E194-46C1-983629F17557E86D/111/259/283/ART/ on July 16th 2009, at 3.47 am Ostrowski, S et al (2008) "Pulmonary function between 40 and 80 years of age" as retrieved from http://www.jpp.krakow.pl/journal/archive/0905_s4/pdf/127_0905_s4_article.pdf on 16th July 2009 at 3.21 am Rachanee28 (2009) "Equal opportunity employment; your rights". 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