UK Antidiscrimination Law - Assignment Example

YM Leyson For: Unidentified Gender Discrimination 04 April, 2006 The feminist movement saw rebirth 30 years ago borne out of the recognition that women lacked access to opportunities otherwise enjoyed by men. Women have accomplished in the process particularly in the areas of salaries and wages, reproductive rights and child rearing giving the feminine morale a triumphant boost. At the turn of the century, social change and global recognition geared towards the recognition of transsexual rights saw a greater acceptance in the concept of sexual orientation. Changes that were deemed unacceptable and unthinkable are now commonly accepted. It is understood that the human rights activist cry for equality, a collective recognition is deemed acceptable for all and not merely censored on a few and singular groups. The potential for random discrimination in relation to gender is not dismissed. The so-called moral activists in adherence to old conservative theories still utter a different lament. The social change will take its toll and be delegated to the far recesses of one’s imagination unless laws that protect the identity of women and transsexuals are recognized and properly implemented particularly in the workplace environment where common complaints of gender inequality are often heard. With the passing of certain laws that govern sexual discrimination, how are this implemented in the workplace? This seemingly simple question carries a multi-faceted approach that require knowledge of the laws that govern our rights. Since the advent of sex discrimination legislation, the United Kingdom and the European region in general saw significant cultural changes across the workplace. When the European Convention on Human Rights recognized individuals other than the traditional gender classification of male and female a ground breaking law was established. In the field of sexual orientation the protection of transsexual rights of gay and lesbian under Article 8 of the European Convention has been interpreted “to extend to an adult’s right to participate in private, consensual homosexual activity”. In Cossey v U.K.1, when the applicants challenge the government to change their birth certificates to reflect their new gender the basis of denial dwell on the substantial administrative burdens imposed on the birth certificates. This might have to do with the explanation of trying to see to it that the historical records of accuracy are maintained and discrimination is not cited. At the onset of the recognition of transsexual rights, anti-discrimination laws were reviewed immensely. The current framework of Anti-Discrimination Law is made up of three main statutes in the equal protection sense which deals with sex, race and disability issues. The Sex Discrimination Act 1975(SDA 1975)2 prohibits discrimination on the grounds of sex; marital status and now includes gender re-assignment in the field of employment, education and provision of goods and services. The applicability of such laws is considered in England, Scotland and Wales. This Act is currently considered the most valuable tool to combat today’s discrimination of employees in the work environment. It is undeniable that for some reasons, employers still practice such measures of exclusions despite claiming substantial media attention on the prosecuted violators. The habit of an imperialistic attitude bordering on the offensive refuses to die immediately which brought relevant complaints from women and transsexuals and will probably continue if proper dissemination of this particular law is not made available to the parties concerned. On the basis of gender discrimination a person’s right to exercise his/her skills and training are impeded in the workplace. In SDA 1975, sexual classification as the weaker sex is tantamount as an insult to a person’s identity as pointed out in Snook 19993. It is a woman’s civil right to a career of her own choice and to earn for herself and her family like any man. With the advent of this law, we can now see a broader protection of women in their chosen fields. They are given the chance to show their worth as mothers and wives at home and counterpart workers at the workplace without fear of repercussions. Men and Women can be discriminated on the grounds of sex that is also covered under the Equal Pay Act 19704. It provides that discrimination between sexes in terms of their contracts of employment is unlawful. It is also wrong for potential employers to refuse a job offer to a qualified employee on the grounds of sex. Employees can claim under this act equal pay from their colleagues of the opposite sex where they are in the same employment and doing the same work. Such instances arise in competitive environments typically in the form of bonuses, incentive schemes, share options and salaries. The SDA Act is further regulated based on the burden of proof categorized under Direct Discrimination Act (DDA) which comes to light when the alleged discriminator displays less favorable treatments on the basis of gender summarily are categorized under his act and cited (Blau 1996)5. Discrimination is an outright violation under the DDA and is much easier to establish than the “indirect” sex or racial discrimination as likewise presented in Jones v Post Office6. Indirect type of discrimination is harder to establish in reference to indirect sex or racial discrimination and could be justifiable leading to the decision in Collins 7and Archibald v Fife8. The law, before any litigation requires that applicant’s establish “direct or indirect discrimination to focus on the central issue/s within the claim and can prevent worthless claims from further proceeding. The SDA had also identified in brief, maternity laws that allow a pregnant working woman at a specific stage in her pregnancy to go on leave with statutory maternity pay. At the end of the entire leave, after giving the employer due notice, one has the right to return to work and any employer cannot treat the new mother differently because of maternity reasons. If any suspension is meted out to a pregnant employee, an employer is entitled to pay her during her period of suspension. The case of Matthews v Kent9 has figured the guidelines for ultimate work treatment of part-time employees which is correlated similarly to the rights enjoyed by full-time workers where pregnant employees require the equal chance at protecting their own health during pregnancy period. Breach of these maternity rights is punishable through legal action and compensation is allowed to the employee. As an adjunct to this law, Maternity and Parental leaves are mandated under Regulations 2000 (SI 2000 No. 155110) otherwise known as the Work and Family Bill. This provides paternity and adoptive leaves for employers to consider requests for flexible working from parents of young and disabled children effective; April 200311. A few years back, transsexuals were considered a gender dysphoria albeit treatable but an illness thereof. Gradually society began to recognize the rights of gays and lesbians. Active polarization and campaign gave way to the inclusion of gay and lesbian rights into the prevailing employment laws. Concurrently, in 2000 EU agreed a directive banning discrimination in employment and vocational training on the grounds of sexual orientation12. In 2003, more pronounced laws were issued to implement this ban. Under the Sex Discrimination Act 1975 and made part of Sex Discrimination (Gender reassignment) Regulations 1999, it is unlawful to discriminate any person because of a prevailing intention to undergo, who are undergoing or have undergone gender re-assignment13. Although this is a wide concept presumably it includes and applies to transsexuals in general. The law covers all kinds of discrimination that is defined as getting unfair treatment ranging from not being hired; harassment at work; victimization-whereby one is treated badly for complaints of ill-treatment in the workplace. The proper implementing body of such laws is the European Union Tribunal within three months when first incidence of actual discrimination is noted otherwise the statute expires. Although not properly identified, the governing body has assed transgender people including transvestites; inter-sex and/or bi-gendered people. Based on sexual orientation discrimination under the basis of sexual orientation also includes direct discriminatory practices like being sacked or refusal of promotions;; harassment, intimidation, humiliation and the provision of an offensive environment. Indirect Discrimination may occur where an apparently neutral rule has greater adverse effect of one sexual orientation than another. One likely example would be a company directive which rules that only “opposite sex” partners can be brought to social events. In Goodwin v. UK14, several discriminatory acts were committed on the person of Christine Godwin. Transsexual discrimination was noted in her inability to change her birth records and employment records. The court related however that at he time of filing, recognition of Godwin as a female was not yet possible, however with the passing into laws other legislation pertinent to this matter, Godwin may, for all intents and purposes request for change. In the matter of pensions and other monetary remedies denied, possible redress could not be granted upon the expiry of the statute of limitations. It is every employer’s responsibility to communicate and facilitate the creation of a suitable working environment subject to reasonable and affordable cost. Under exceptional circumstances, exceptions to discriminatory practices may be allowed under the Treaty of Rome. The Government institutions that prohibit promotions or withhold substantial benefits and favourable conditions due to pregnancy is punishable under this statute. The creation of a correct anti-discriminatory environment is every employers responsibility. They are reminded not to be complacent about their recruitment, selection and induction processes. Loaded questions about maternity and child rearing capacities are to be avoided to limit risks of allegations. To create a sound hiring technique should fully outline issues relating to physical requirements rather than the above mentioned provisions. In short, everyone who is able to do so is offered the same access to training and development events according to Hollinshead et. al15. Employers should be guided that everyone who is able to do so is offered the same access to training and development events. Regulations relating to maternity, paternity and parental leaves as these are newly altered in 2003. Results particularly related to salaries and wages require careful re-organizations. The creation of the correct environment before and during employment will ensure less litigations or poor publicity for organizations. Pre-planning and management of policies must be taken into effect to prevent associated claims either for direct or indirect administration. In the workplace certain discriminatory practices are still observed. Continuing segregations and disadvantages are often noted in smattering despite the laws that prohibit them and the legal implications the specific laws carry. We can not expect that to change overnight. If others had worked on it for years, we are now enjoying the fruits of their toil to escape from the confines of an oppressive workplace. However if we wish for the recognition of our rights as a person in the workplace, we should take several measures to identify our rights and bring this to an employer’s attention. Reported acts of harassment are prosecuted and sometimes not due to an employee being subjected to ridicule and the trauma that is attached to facing a full-blown case. A employees, our job is to see to it that cases like this do not and will not ever happen to us. Certain laws are made available for everybody. The rights of a person despite his gender affiliation recognize his needs for identification and the proper observance of her skills and talents that is a total gift to the community. Laws are made for everybody as a guide to how we might behave accordingly in the workplace. Works Cited Cossey v. United Kingdom,184 Eur.Ct.H.R. Nat’l Aids Trust, Overview of UK Antidiscrimination Law.www.nat.org.uk.03 Apr.,2006. Snook, Jereme.1999. Equality in the Workplace. Business Management Zone.http://www.accountingweb.co.uk/cgi-bin/item.cgi?id=100300&d=789&h=788&f=785 02, Apr,2006. Landmark Ruling Changes the Law on Equal Pay.www.rjw.co.uk/service_subsubcat/40/sex-discrimination-in-the-workplace.htm 03 April, 2006. Blau, F. 1996. Where are We in the economics of Gender? The Gender Pay Gap. National Bureau of Economic Research: Working Paper No. 5564. Jones v Post Office [2001]IRLR 384. Collins v. Royal National Theater Board [2004. Archibald and Fife[2004]IRLR 651. Matthews v Kent v Medway Towns Fire Auhority[2004]IRLR 697. Dickens, Linda and Hall, Mark.[2005] Review of Research into the Impact of Employment Relations Legislation. University of Warwick. http://www.dti.gov.uk/er/errs_452.pdf?pubpdfdload=05%2F1257> 04 Apr.2005. Godwin v UK [2002].28957-95 http://www.crisalide-azionetrans.it/Corte_eu_dirittiumani_Goodwin.html 4, Apr, 2006. Hollinshead,G., Nicholls,P. and tailby, S.(1999), Employee Relations. Financial Time Management. London. Scottish Public Service Ombudsman.[2005].Human Rights Complaints. http://www.equality-network.org/Equality/website.nsf/legislationall/A06488C5152B623F80256FEF003F63F0 03 April,2006. Read More