Discrimination in Employment and Law against Discrimination - Case Study Example

Discrimination in employment Discrimination According to the dictionary, discrimination is defined as “Treatment or consideration of, or making a distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit: racial and religious intolerance and discrimination”.1 Discrimination is a special or an unusual behaviour towards someone in a group or a work place, which could be either in favor or in against of that person. There are different types of discriminations, which are faced in a work place, these are, gender discrimination, disability discrimination, age discrimination, racial discrimination etc. In general, discrimination is the recognition of the differences between things in a group or a work place based on certain characteristics. In most of the European and American countries, discrimination is illegal and considered as an offense against that person and there are laws regarding the discrimination. There are two categories of unlawful discrimination, direct and slightly less direct. Direct discrimination is when someone treats the other person less favorably because of one of his or her attribute; the attribute could be sex, age, race, and social status, country of origin or religion. For example, an airline company is not giving job to a Muslim pilot, though he is qualified for the job with relative experience but is deprived only because of his religious belief. Indirect discrimination is when there is condition in the settings of an organization without any reasonable justification and it disallows people of any race, gender or religion to qualify for the job. Law against discrimination The United Kingdom (UK) has specific legislation and law on equality that prohibits discrimination of all the kinds and offers a method for individuals to register complaints with the courts legislators whenever they experience unlawful discrimination in their work place. The United Kingdom has rules and law, which prohibits discrimination on the basis of race, religion and belief, sex, sexual orientation, disability, age etc. 2Discrimination on any of these kinds is completely prohibited in the organisations of the country. Discrimination on few of these bases is forbidden in other places, such as education, housing, and by government authorities. The law against discrimination is discussed below. The Human Rights Act 1998 (HRA), incorporates the rights contained in the European Convention of Human Rights (the Convention) into UK law, and it is also contains laws against discrimination in the country, in accordance with the UK law. Unlike the UK equality legislation, the Human Rights Act 1998 can simply be enforced straight against public and government bodies, for example local authorities or any law enforcement agency and also the private organisations, which exercise any public functions. But, courts and legislators are government organisations themselves and they should understand and enforce law in a way, which is compatible with the European Convention of Human Rights, even when both sides of the argument are not from the government organisation. And they can rely on the European Convention of Human Rights in any legal proceedings of the argument or the dispute, which includes such as the dispute hearings in an Employment Tribunal, and the court should act in accordance with the European Convention of Human Rights when making any decision on the issue. Article 14 of the European Convention of Human Rights prohibits discrimination on the basis of sex, race, age, religious belief, any political opinion or affiliation, marital status, sexual orientation, social status, disability or any other reason. Article 14 of the European Convention of Human Rights is not a freestanding guarantee of equal treatment or a prohibition on discrimination but it forbids the discrimination in regard to other Convention rights and guarantee equality. This is the right of every individual that he or she should not be discriminated. But in some cases the discrimination can be justified, only when it is necessary to achieve any legitimate aim. Discrimination can only be justified and can be considered necessary if the significance of the objective or aim, which is to be achieved, is fair in a sense that the discrimination will be on the individual who is being discriminated against on the base of any valid reason.3 There are few examples, where the ECHR has accepted that if the reasons are given for the justification of discriminatory measures, and then there will not be any action taken against it. These areas of discrimination include sex and race or ethnicity, but there has not been any justification accepted for sexual orientation or disability yet. In number of times, people have used the Article 14 of the Convention in British Courts, in order to enforce their right not to be discriminated against. One example is a famous case, in which held the housing legislation interpreted in giving rights to the homosexual couples in the same way as married couples. Case study Disability discrimination In the case of Azmina, who is an assistant manager in the HRM department of the hospital, is now suffering from depression due to the birth of her child, which has surely affect her work. And due to the same reason she is not been given the promotion to the senior managerial position. She declared the period of her depression and had honestly stated that it is from the last three years. And due to this reason, the offer was withdrawn and the direct said that the job is high pressure and hospital management was not satisfied with the mental health of Azmina. Azmina claims the disability discrimination against the authorities. It is type of discrimination, which is faced widely by people. The basic problem they face is the attitude of people towards them. People think of them as something useless. Though they are not useless, their brain works excellent and only a part of their body is disabled. But still the attitude they face is inferior and it develops an inferior complex in them, which leads them to other mental complexities. Disabled people also face discrimination by employers, managers and also by their colleagues. Employer might find problems with securing employment but their handicap can be seen as a risk to the reputation of the company and also they think their work is unpredictable. And once they are hired by an organisation they may find they are ignored for promotion opportunities.4 Similarly, lets suppose what if an employee becomes disabled while employed after that they may also seek some way to the normal life and will definitely go to the HR department of the company so that they can overcome this problem of theirs. Unsympathetic employers, managers and colleagues can make their life very difficult for and it will only make their health and mental problems stable.5 Disability discrimination laws mean deals with this kind of discrimination, which is very common in the society. According to the Disability Discrimination Act (DDA) 1995, the discrimination on the basis of disability should end and the Act was extended by including the Disability Discrimination Act 2005. The Disability Discrimination Act (DDA) is intended to provide the rights to the disabled people in different areas, some of which are given below:6 employment education access to goods, facilities and services buying or renting land or property, including making it easier for disabled people to rent property and for tenants to make disability-related adaptions It is clear from the law that the disabled workers also share the same general employment rights as other workers, but there are some other rights as well, which are given to the workers due to their disability. So Azmina is right in her claim, her promotion should not be stopped due to her disability, and she should be given her right of promotion. The law makes it illegal for the employers to discriminate against disable people while recruiting and also if an employ become disable during his or her job, the employer cannot discriminate against his or her on the base of disability. Though it can be justified in some basis but in most of the cases, the employers cannot be justified. In Azmina’s case, her only disability is depression, which can be cured with the passage of time and she is physically fit in her every way and she is already working in a managerial job, which is in fact a very demanding job itself and she can handle the pressure of the other job too. And not to forget her honesty and truthfulness that she accepted her disability, which was not even apparent and told the administration about it, she could have easily hide it if she wanted to. But instead of appreciation her truthfulness and honesty, director is discouraging her by backing off with the offer. The Disability Discrimination Act 2005, covers the following areas,7 application forms interview arrangements proficiency tests job offers terms of employment promotion, transfer or training opportunities work-related benefits such as access to recreation or refreshment facilities dismissal or redundancy The sixth point here clearly states that the promotion, transfer or training opportunities of the employees should not be withdrawn only on the base of their disability. So Azmina got a strong case against her employer and she can go for the legal battle and will surely win the case on the base of her rights, which are defined in the Disability Discrimination Act 2005.8 She can go to the Equality and Human Rights Commision for advice and they will eagerly help her for the discrimination, which she is facing at her work. The other option she got is to lodge a claim at an Employment Tribunal. Though there are few cases, when the discrimination was justified, this should be discouraged, because it affects the rights of a number of disabled people around the world. The disabled people should be given each and every right of the employees, and also few special rights. Sexual discrimination Gender discrimination is a famous type of discrimination against a person or group on the basis of his or her sex or gender. It is mostly used as against women in the work place and women are thought to be inferior to men, it is the concept of most of the men here. There are sexual differences between men and women and our society is based on these differences. But in a work place, when a women is holding the same degree which her male counterpart is holding, then why should she be paid less than him and why should her promotion comes late but that male employee is getting promoted each year.9 These differences between men and women have been used to justify in the societies where one gender or the other has been classified to be inferior and is considered to be of minor roles in the society. While there are few differences between men and women, but these differences should not be at the work place. There are two cases of sexual discrimination in the give case study. Oliver, who is a Human Resource Manager in the hospital, his son is a gay. When his colleagues came to know this, they started teasing him in public and he became the victim of their homophobic insults. The situation was sure not an ideal one for Oliver, who was suffering for the deeds of his son and it was hard for him to work on this kind of environment where people were constantly teasing him and accusing him on something which he never did. He emailed the director of Human Resource Manager several times and complains against the constant teasing of his co-workers. But unfortunately there was no reply from the director, which made him helpless in the situation. The only thing he did in this situation was to resign and he claims discrimination, which was very much true. The other case is of Paul, a radiographer in the hospital. He is working there for four years and during the time; he changed his gender from male to female, after going through the gender reassignment surgery. He returned to work with a new name Paula. After few years, she decided to move to London, and applied for many jobs in the city. During this she came to know that her former manager at hospital, is telling everyone about her change of gender, which was shocking and it is causing her a lot of damage, because she is not getting job anywhere. She is now suffering from clinical depression and she is claiming sexual discrimination against the manager. It is clear from the law that employer is not allowed to discriminate on the basis of sex or sexual orientation or any of the following grounds:10 Sex of employee or prospective employee. Marital status of employee or prospective employee. If an employee intends to undergo, is undergoing or has undergone gender reassignment. Race, (this means colour, race, nationality or ethnic origins) of employee or prospective employee. Also an employer cannot victimise an employee for bringing a complaint for discrimination or giving evidence in a complaint brought by another employee The first point here clearly depicts that Paula cannot be victimised on the base of her sex, and even if she had changed her sex from male to female, then also no one is allowed to discriminate her or to create problems for her. The Sex Discrimination Act 1975 (SDA) protects the employees against the unlawful discrimination only on the basis of sex. The law makes it clear that it is unlawful to discriminate against someone on the base of that a person is married or is himself or she undergoes gender reassignment. Paula’s case is seems very simple in this regard, the employer has no right to discriminate against her only because she went through gender reassignment, which is a basic right of her. Law gave her this right that she can change her gender on her choice and when law permits her then employer is treating her unlawfully. Her employer is mentioning her gender reassignment as something very suspicious and is telling the people about this. As a result she is getting problem in getting a new job in a new city. Her former manager is increasing her problems and she has every right to go for a legal battle against him. She got a strong case and the Sex Discrimination Act 1975 (SDA), surely protects her in this regard. She can consult Equality and Human Rights Commission and go to the Employment Tribunal for her problem. The gender reassignment is a personal matter of Paula and her manager should not be concerned with it. His only concern should be her work and she worked for almost four years for the hospital as a radiographer and her abilities as a radiographer is not affected by her gender reassignment and while referring anyone about her work, he should leave behind the gender reassignment and should not ruin her career. He is actually ruining her career and he got no right for doing so. She is getting ill and facing depression because of her former manager, who is making her life miserable. Oliver is facing discrimination only because his son is a gay and he resigned because the manager was not listening to him. He was not gay but his son was, and this was the actual point. Even if he was a gay, the law permits him to choose his sexual orientation. The Employment Equality (Sexual Orientation) Regulations 2003 protect the rights of individuals from discrimination on the base of their sexual orientation. The definition of sexual orientation given in the law is, “Regulation 2(1) defines sexual orientation as meaning a sexual orientation towards persons of the same sex, and/or persons of the opposite sex. The Regulations therefore cover gay men, lesbians, bisexuals and heterosexuals.”11 The law and regulation makes it unlawful to reject or deny someone of job because of prejudice or narrow mildness of an employer only because of their sexual orientation. Individuals are given the right to take prompt and also to take effective action to tackle this embarrassment and this unlawful act of harassment. And all people in the country are given equal chances of job and promotion, without taking into account their sexual orientation. In this case, Oliver can surely go to the Employment Tribunal and can go for a legal battle against this discrimination, which he was facing only because of his son, who is a gay. If a Tribunal finds the discrimination illegal, they can be compensated with and award of damages or in any other way, which may include an extra amount of money for their loss of time and job. Oliver is a victim of indirect discrimination and he is eligible to go to court or to appear in front of the tribunal for his right. The employer is liable for this situation if it is taken in his or her notice, and he is liable for failing to ensure that the treatment did not take place in the work place and as a result his employees are leaving their jobs which is affecting their lives badly. Religious discrimination Abdul, the lab attendant, is forced to work on Friday’s, he being a Muslim had to go for his special prayers, and his job is a hurdle in his prayers. He is a victim of religious discrimination. He got three options for himself: he can go to his employer his human resource department his trade union representative. He kept a written record of these harassments, which he received in his work place. He spoke to his employer about this issue and decided to seek the law for this purpose; he wanted a compensation for this discrimination. Religious discrimination is when someone is treated badly only because of his or her religious belief. There is no justification of religious discrimination, and in many countries it is against the law. 12 In a work place, if a person is discriminated because of his or her religion then he or she got a complete right to protect them, because it is against law for an employer to discriminate his or her employee on the basis of their religion. Employment law defines the religion and belief and it could be of any religion. Though there is not a list of religions but it includes almost all the religions, which are widely practiced around the world. If there is any uncertainty about any religion or belief, then an employment tribunal can sit and decide the solution for it. In this way, the employment law protects the rights of people and makes sure that they are not facing any discrimination in their work places. Direct discrimination is practiced in the work places and it is difficult to control it, however it is allowed in few cases, only where the religious beliefs and faith is needed for the job. For example, a religion teacher in a Roman Catholic school would be a Roman Catholic; they cannot accept applications from scripture teachers to baptized Catholics. Abdul, the laboratory manager, who works with responsibility and now he is refused to be given time of Friday prayers. He is right, he is the victim of religious discrimination, because he is the only Muslim in the hospital and he wants to continue his job. Law provides him his basic right to consult the law during any of the discrimination case. The employee has the right that he or she can say no to his or her employer and he or she can protect himself or herself during any situation. He or she has the right to not to be bullied at the work place or in the work-related setting, only because of their religion. It is the right of the employee not to be victimised at any cost. Why should they be treated less favourably only because they have complained about the religion and belief discrimination? Sometimes people get victimized because they are not having time to work at home. Though Britain has increasingly became a secular country as compare to Ireland, and many people like to stay away from church, but religious discrimination is highly observed in the country and there is a rise in Islamophobia, which increased after September 11th and July 7th bombings. The victims of this Islamophobia are the Muslims, who are facing discrimination against themselves in schools, colleges and work places. There is a difference between religion discrimination and race discrimination, but usually people blurred the difference between them. Though existing race relations covers some parts of religious discrimination, for example, discrimination against Sikhs is racial discrimination but discrimination against Muslims is religious discrimination. Few things are needed by the employee in order to avoid religious discrimination, given below: Giving information to your employer Though it is not necessary that you have to provide your religious details to your employer, but if your will do so, it will help them in understanding the religious requirements and belief of the new employee. But be careful that the information should be kept confidential, and should be in the knowledge of your employer. Facilities Usually employers do not provide any time off for the religious activities, for example prayer, but this act is considered as religious discrimination. Employees should fight for their right because the law facilitates them for this. If there is a vacant room in the organisation, employee should use it for his prayer and should not hesitate in doing this, because it is his or right to perform his religious duties. This act will not disrupt other colleagues or your ability to perform well in your job. There is a chance of indirect discrimination here, for example, the organisation can deliberately place the weekly meetings on Friday, though they know that Jewish and Muslims have to go for their special Friday prayers. Though there is a chance that all people do not follow the religion in the same manner but still there is a chance. Religious holidays Holidays fro the religious activities is a right of every employee but they should ask their employer in advance, so that they can arrange it before the day achieved. Most probably they will understand it and will grant you a holiday on that particular day but there is a chance that they can refuse, on the base of its affect on business. The most important thing here is that if there are more than 2 or 3 employees in an organisation, then they should ask it properly and strongly, there is a more chance of its approval like this. Clothing Almost every religion has some specific dress or jewelry, which differentiate its believers from the other people, though it is not so popular nowadays but still is practiced. Employers usually make a dress code, which is followed by all the employees, but it should be noted that dress code doesn’t discriminate against you, so there should be a flexible dress code. Food Some religions do not allow their followers to eat certain type of food, in this case you should directly contact your employer and tell him about your religion. The manager should understand this and should arrange something else for you. Assume that a successful claim has been established and critically evaluate the process to the award of compensation. The Employment Equality (Religion or Belief) Regulations 2003, states that discriminating employees on the basis or their religious beliefs is illegal and hence can be compensated. The Equality Act was widened in year 2006, and goods, facilities, education and services were also included in it. The European Convention on Human Rights ensures the freedom of thoughts and expressions, and also the religious freedom. It was also included in Human Rights Act 1998, another act; Race Relations Act covers the Jews and Sikhs as ethnic groups. No religion other than Jews and Sikhs was covered in it. The religious discrimination regulations protect people against discrimination on the basis of their religious beliefs. Religious discrimination is as important to tackle as gender discrimination, racial discrimination or disability discrimination. The Equality Act 2006 provides the protection to the religious discrimination as well. These regulations are not applied to the Northern Ireland; over there Fair Employment Act 1989 is already practiced. Fair Employment Act prohibits the religious discrimination and helps the employees of different religions to enjoy their freedom. These acts ensure that the employers are providing freedom to their employees to practice their religions at their work places. And also they regularly review their recruitment, training and promotion practices. What does the law say? The main purpose of all the laws and regulations about the religious discrimination is that the employees in the organisations are treated fairly and are not facing any kind of religious discrimination in their work places. Abdul can choose the points from these regulations, and these regulations cover nothing other than religion or any similar philosophical belief. These laws do not deal with the racial, gender or any other kind of discrimination. Part B Now he needed to get help from the law and there are few places where he can go and seek help. He can call the advisory for their help and there is another option, he can consult his Local Citizens Advice Bureau (CAB), and they can provide him free and impartial advices. He can go for the legal advice from any Solicitor or Advice Agency on discrimination issues.13 The other option is of trade unions, if they are in his hospital. He can go to them and collectively they can report the administration of the hospital. Trade unions are very helpful in this regard, but it might be the possibility that he would face the religious discrimination over there too. There are many organizations, which are working to end the religious discrimination in the society. They include many Christians from the church. According to them, 'Some estimates say Muslims are 65% of the total ethnic minority community in Britain now - and we are concerned that you can be accused of being anti-Semitic against Jews, but not against Muslims, although we're the same race.'14 The law clearly states that the discrimination is completely unlawful in the recruitment process or in the work place. As Abdul was facing discrimination on the terms and conditions of the organisation, in the same way, the discrimination may include the less pay, low promotion rates, transfers or trainings etc. The discrimination may continue after the job, usually at the time of referencing. Abdul should seek for an advice from a lawyer or any other person who got a complete knowledge about these laws and regulations. It is primarily a negotiating issue, and it is believed that negotiations should take place with the whole staff instead of individual interviews, only then the complete behaviour of the people could be changed. Abdul should be aware that there are two main situations when the law could be applied. First situation is when someone, with a particular religion or belief, is employed in an organisation and is facing discrimination after being employed. The second situation is when the organisation never employs a worker of a certain religious belief. Abdul is facing the first situation, where he been employed in a hospital but now he is facing discrimination as his employer is not allowing him to practice his religion with freedom and putting hurdles in his weekly prayers. The employer should check the acts and policies of an organisation properly; else he stood responsible for the whole situation. He should check the policies and make sure that none of the applied policies contain anything, which could be the cause of religious discrimination. These religious discriminations are counted as the acts of harassment, and the employee is harassed and can go for the legal help.15 So the employer should be very careful and should keep a close eye on what is going on in his organisation. If there is any policy, which can lead, further to religious discrimination, then it should be removed. The staff of the organization needs to understand the significance of religious discrimination and the consequences of it on society and also on the atmosphere.16 Not only this, but they should support the employ who is victimised for any kind of discrimination. In the case of Abdul, his colleagues should have supported him in his battle and they should have raised their voices over the issue, if not, then they are equally involved in this discrimination. Biblography Anne-Marie Mooney Cotter, Jane Moffatt.. Discrimination Law. Routledge Cavendish, 2005 Beryl Grant , Employment Law: A Guide for Human Resource Management. Thomson Learning EMEA, 2001 Broman, Clifford L., "The health consequences of racial discrimination: a study of African Americans." Ethnicity and Disease , 1996 David Lewis., Essentials of Employment Law. CIPD Publishing, 2004 Diana M. Kloss , Occupational Health Law. Blackwell Publishing, 2005 Essed, Philomena.. Understanding Everyday Racism. Newbury Park, California: Sage, 1991 Evelyn Ellis, EU Anti-Discrimination Law. Hardback, 2005 Hochschild, Jennifer. "Middle-class blacks and the ambiguities of success." Stanford, CA: Stanford University Press, 1993 Hugh Collins, Keith D. Ewing, Aileen McColgan. Labour Law: Text and Materials. Hart Publishing, 2005 Lykes, M. Brinton. "Discrimination and coping in the lives of black women: A measure of racial discrimination and a study of its negative physical and mental health consequences." Journal of Black Psychology, 1983. Malcolm Sargeant. Discrimination Law. Pearson/Longman, 2004 Mark Bell. Anti-Discrimination Law and the European Union. Oxford University Press, 2002 Religion in the Workplace: A Comprehensive Guide to Legal Rights American Bar Association, 1998 Williams, David R. and An-Me Chung. "Racism and Health." Health in Black America, Eds. Rose Gibson and James S. Jackson. Thousand Oaks, CA: Sage Publications, 1997 William L. Keller, Timothy J. Darby, Carl Bevernage. International Labor and Employment Laws. BNA Books, 2004 Read More