The Gender Ground Of Employment Equality - Case Study Example

The Gender Ground Of Employment Equality Introduction Equality is an ever evolving concept that keeps pace with the spirit of the times. Nowadays, the struggle for quality has moved beyond the aspect of gender. There are other things to consider than the power relations of men, women, and the third sex because injustice randomly thrives in more than one area. That is why the legal arena has also made adjustments in the scope and definition of equality. The workplace is of course one of the known venues of discrimination and many employees have suffered its full impact on various grounds. A good example of a legal evolution towards the accommodation of employment inequalities is the Irish jurisprudence, which has taken the initiative to establish the Employment Equality Act in 1998, the law governing all disputes related to equality and employment in Ireland. Hence, corollary to this groundbreaking jurisprudence, this essay will enumerate important grounds of discrimination that are all tied to the broad concept of “employment equality.” Employers are particularly challenged to pay attention to these grounds as they might unknowingly commit discrimination and inflict financial, emotional, and mental distress to employees. Employment Equality Now and then everyone hears the words “fair employment” and “employment equality.” Well these words essentially implore a move to put an end to the chronic injustices happening in the labor market and are embodied as laws to protect victims of such injustices. Gender equality was once the most common clamor in the workplace. Yet since women nowadays are climbing the ladders of success as competently as men, it is understood that labor laws would have longed lost significance if gender was the only ground for convicting an employer of discrimination. Women have been stereotyped as the “weaker sex” because they mostly lack the physical strength of men, but that does not altogether mean that men are invincible and therefore free from being slighted. Even men are also victims of discrimination on grounds that do not necessarily refer to their biological set-up. Men and women also have other identities. The Employment Equality Acts 1998–2008 of Ireland, as amended by the Equality Act 2004, prohibits discrimination at work especially in matters pertaining to dismissal, disposing public goods, equal pay, harassment, recruitment and promotion, training or experience, and working conditions. According to section 6, paragraph 1 of the Acts, discrimination occurs when “on any of the grounds specified... a person is treated less favourably than another person is, has been or would be treated.” This is based on nine major grounds. However, before delving into the others, it is ideal to begin with the classic issue on gender inequality (Equality Tribunal, n.d.). The Gender Ground Gender, unlike inescapable fate of sex, is a “social-construct.” This means that the concept of gender is based on the prescription of society and culture. So, even if no one can undo biologically determined factors, people can always interchange their social roles or choose to follow or not follow customs, traditions, and norms. Gender is therefore connected to choice and is one of the main starting points for status differences. Why gender seems to be overemphasized even to this day was already explained by Alan Wolfe (1994), who contended that "of all the ways that one group has systematically mistreated another, none is more deeply rooted than the way men have subordinated women.” He said that other discriminations “pale by contrast" (pp.27-34). Wolfe’s claim was supported by Lerner, a firm believer of the eminence of sexism in the area of discrimination. According to Lerner (1986), sexism precedes other “isms” because getting rid of it first and foremost would pave the way to getting rid of other discriminations, be it racism, classism, and the like (p.213). The real score behind the timelessness of gender issues are summed up by the United Nations: “Women are working more… but earning less than men.” Moreover, this contention has nothing to do with their country of origin. Whether they belong to the wealthy North or the struggling South, or work in industrialized urban areas or rural backdrops, women spend more hours at work yet have benefits and an average wage far behind that of men (United Nations, n.d.). The Employment Equality Acts highlight gender as the first discriminatory ground. Provided that “one is male and the other is female,” section 6, paragraph 2(a) of the law puts major focus on the problems that pregnant employees and employees returning to work after maternity leave usually come across. Added to this, on grounds of indirect discrimination and family status, female employees who have families are afforded legal remedies when their requests for flexible working hours are unjustly denied or left hanging. Working parents, especially working mothers, are very much supported by the Equality Tribunal and the Labour Court, encouraging their application for reduced working hours or flexible working arrangements. The employer has to be reasonable in making arrangements with employees, meaning he does not delay requests without justifications since it usually amounts to discrimination in itself under gender and/or family grounds. However, if the employer proves that what he has done is in the best interest of the business, then he may likely be acquitted of discrimination. The Disability Ground Moving on from gender, disability is enumerated as the seventh ground for discrimination under section 6, paragraph 2(g) in the Employment Equality Acts. Its indication for occurrence is when “one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as ‘‘the disability ground’’).” This ground has been controversial for its broad and perhaps even flexible scope. When a person charges another with discrimination on the disability ground, equality officers first investigate whether there is prima facie evidence of disability. To define disability, emotional, mental, physical, social, and other such factors verifiable by medical standards must be taken into consideration, but in the condition that they affect a person’s quality of life. There are many definitions provided by different sources. A landmark case on the definition of disability is A Complainant v Cafe Kylemore (DEC-S2003-024). Despite the fact that the complainant’s evidence was insubstantial and he eventually lost the legal battle, what makes the case groundbreaking is that firstly it outlines a comprehensive set of definitions on disability, and secondly it confirms alcohol dependency as a form of disability. For instance, the Equal Status Act deems disability as “a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgements or which results in disturbed behavior.” The case also outlines a definition from Collins English Dictionary, which states: “alcoholism is a condition in which dependence on alcohol harms a person’s health, family life etc.” The equality officer assigned to the Kylemore case added a previous ruling from court, whereby the judge’s verdict was alcoholism is indisputably “a disease… [falling] within the definition of an injury contained in the amended Schedule 4 to the 1983 Order” (pp.9-10). According to one critique, the disability ground zooms in on medical standards and not on “functional definition,” because the emphasis is “on the complaints of the person alleging discrimination” and not on how those complaints hindered the “individual's full participation in the workplace” (Malcomson Law, n.d.). Medical evidence is definitely of prime importance. Though employers do not have the obligation to hire people who fall short of their competency requirements for a particular position, an employee who suddenly contracts disability in the line of work can still be considered fully competent by exerting this competency on the reasonable accommodation granted by the employer. However, if an employer fails to provide reasonable accommodation that will enable a “disabled” person to access, participate or undergo training in an alternative employment suitable to the person’s condition, then the employer is guilty of discrimination under the disability ground. The employer has therefore the obligation not to dismiss the employee without first exhausting all means to accommodate him or her in another position that matches his or her medical condition. The case of Ms Lizette Uwimana v TLC Centre (DEC-E2008-009) is a good illustration of discrimination on the ground of disability. In summary fashion, Uwimana worked as a Care Assistant for TLC Centre. She was there for more than a month when upon medical diagnosis, it was made known to her that she had “degenerative changes in the spine” leading to arthritis of the back. Her job apparently involved lifting patients every hour. After complying with the request of her employer that she submit a letter personally written by her doctor, the complainant submitted further medical evidence and voluntarily returned to her workplace to discuss her future. However, the Nursing Manager informed her that her health situation was already a resignation, since she could no longer perform the duties of a Care Assistant. The complainant asked for an alternative work but was told to go through the normal recruitment process and submit a CV, which she did. Instead, the respondent dismissed her and released her P45 and never bothered to inform whether there was a position suitable to her qualification and condition. Per decision of the Equality Tribunal in paragraph 4.9 of the case, the respondent company was convicted guilty of discrimination on the disability grounds for the following reasons: 1) respondent failed to seek for further medical evidence on the complainant’s condition, therefore dismissing Uwimana following her first submission of the letter from her doctor, and 2) respondent failed to consider a reasonable accommodation needed to make the complainant fully competent and thus, with the respondent’s inconsiderate dismissal of the complainant, the dismissal was on account of her disability and “therefore being discriminatory.” The Race Ground Race is also a broad concept to define since science cannot quantify it or put it into concrete terms, nor can race be defined in other frameworks because characteristics of race are intermingled. Take for example the case of individuals whose parents have different nationalities. It is also unclear if the basis is nationality or culture or both. As Nadra Kareem (n.d.) said, “Where does one race end and another begin?” Ireland is becoming more and more culturally diverse, thus accommodating other races by way of interculturalism has always been an important public policy debate within the country. From the findings of the European Network Against Racism (ENAR) (n.d.), a non-government organization (NGO) committed to the cause of “promoting equal treatment between European Union citizens and third country nationals,” discrimination in employment and in the provision of goods and services is one of the leading manifestations of racism in Ireland. The groups usually targeted by EU racists are: the distinctive Traveller and Roma Community, recent migrants (i.e. labor migrants, asylum seekers and refugees), the Jewish and Muslim communities through anti-Semitic and Islamaphobic movements, black and minority ethnic groups whose status experience are overlooked and who are disliked simply because of their skin color, ethnic or national identity, and international students and tourists/visitors (p.4). Litigations concerning racial discrimination at the workplace are as loud as the gender and disability grounds. In the Employment Equality Acts, the provision on race follows that of disability. Section 6, paragraph 2(h) explicitly states that racial discrimination between two persons occurs when “they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as ‘‘the ground of race’’).” The Equality Tribunal strongly outlaws open and implied acts of “less favourable treatment of non-Irish workers.” Non-Irish workers are afforded with legal protection so long as they comply with the requirements for special measures to guarantee that they can completely identify with the disciplinary procedures of their adopted country. At times when a non-national worker is subjected to the same rules and procedures that would have been applicable only to an Irish national, such “application of the same rules to different situations” is tantamount to discrimination (Malcomson Law, n.d.). Ms. Aderronke Rasaq v Campbell Catering Ltd. (ED/02/52) is a case in point. The case is a fine example of how an employee can triumphantly assert her rights for equal treatment against an employer discriminating on the ground of race. To briefly explain the facts of the case, Rasaq is a Nigerian national and a resident of Ireland from 1999-2002, the year the incident happened. She was employed at one of the hostels of Campbell Catering but was suddenly dismissed after a month of service when one of the senior managers saw her eating from and with the intention to steal “a bunch of bananas” in the locker room. The complainant sought help from the Equality Authority for the discriminatory dismissal, and was paid a total of €15,000 for her financial loss and as compensation for the effects of the discrimination. Rasaq also filed for a harassment and discrimination complaint against her former employer at the Equality Tribunal. She was banned from communicating in the Yoruba lingua with other Nigerian residents who hardly spoke English. The case was settled prior to trial. On one hand, the Labour Court found the respondent guilty of discrimination on the ground of race because first, it did not afford fair procedures in investigating the validity of the misconduct the complainant was accused of. The court found evidence that it was a company procedure to give employees the benefit of the doubt unless proven guilty, but Rasaq was dismissed just because a senior manager had an unconfirmed presumption that the complainant would steal a “bunch of bananas” (Labour Court, 2004, p.6). Implications of the Employment Equality Acts Of course, gender, disability and race are not the only grounds for discrimination though they are the most regularly raised claims against employers. The other six grounds through which a person is treated less differently from others, has been or would be treated, include marriage, family status, sexual orientation, religion, age, and traveler community. Another thing is that complainants can raise a claim on more than one of the nine grounds outlined by the Employment Equality Acts but the burden of proof lies on their shoulder. If complainants cannot present a prima facie evidence of discrimination on a particular ground, then the claim will be forfeited. Not to mention, this claim must be brought forth to the Equality Tribunal not later than six months from the date of the alleged discrimination incident, except for equal pay cases. An Equality Officer will not take charge of claims unless all other means of mediation have failed. However, if the complainant succeeds with the procurement of evidence and an Equality Officer is assigned because mediation is impossible, the onus of proof shifts to the employer who will then attempt to prove that discrimination was not present. For companies, it is difficult to differentiate between treatments of two individuals based on factors other than the alleged discriminatory grounds. Employers are also barred from terminating or demoting employees who raise discrimination claims against them (Doyle, 2008). The biggest impact of the Employment Equality Acts is by far the empowerment of the working class, labor unions, and the labor sector as a whole. The law helps them stand up for their rights as employees, worker and members of the labor force, whose presence are vital to the country’s economic growth. Based on recent statistics released by the Tribunal, discrimination claims were increasing from the periods of 2004-2008. In 2006, there was a 12% increase in the overall number of discrimination claims. From 399 referrals in 2005, it rose to 448 in 2006, majority of which were on the grounds of race. Racial discrimination increased to 78%, adding 64 complaints to the 82 recorded in 2005 (total of 146 racism complaints). This figure was followed by gender and disability, each respectively garnering 74 and 54 complaints. However, gender had 16% lesser cases in 2006 compared to 2005. Gender once had the highest number of referrals in 2004, with 53 out of 297 claims. Disability complaints also dropped to 17%. As mentioned in the press release for the 2006 Annual Report, 56% of cases were resolved at mediation. On the first half of 2007, claims on the disability ground shoot up to 76%, but there was a mark decrease in claims based on other grounds (Equality Tribunal, 2007). By 2008, the complaints increased to 28% and the highest award given amounted to €60,000 at an average of €11,755. In contrast with the 2007 data, what was remarkable in 2008 was the 100% increase on the age ground and 300% increase on the marital status claims. 36% of the cases in 2008 were successful. Then again, on the first half of 2009, other claims lay low and gender discrimination complaints in the workplace almost doubled (Adare Human Resource Management, 2009). Conclusion and Recommendation The Employment Equality Acts and the statistical fluctuation, which does not always put gender as the top discriminatory ground, indicate that employment equality is much more than considerations of gender. The Acts serve as a check and balance to the corporate world, which have a tendency to treat their workers unfairly and as if they were insignificant. This gives companies the humility to recognize the significance and the contributions of labor force in their businesses and in the market economy. Of course, there is still the likelihood of erroneous claims, but the Tribunal is vigilant enough to screen which claims are valid and which are not. Hence, the requirement of prima facie evidence of discrimination. Employees might make the habit of raising discrimination complaints against employers even for the most trivial reasons. However, if Human Resource policies have enough foresight, such claims may be avoided. 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Available at: http://www.equalitytribunal.ie/uploadedfiles/AboutUs/Consolidated EmploymentEqualityActs2004.pdf [Accessed 6 January 2010]. European Network Against Racism (ENAR), n.d. Responding to racism in Ireland. [Leaflet] Dublin: ENAR European secretariat. Kareem, N., n.d, What is race? debunking the ideas behind this construct. [Online] About.com. Available at: http://racerelations.about.com/od/understandingrac1/a/WhatIsRace.htm [Accessed 7 January 2010]. Labour Court, 2004. Synopsis of employment equality determinations made by the Labour Court in 2004. [Online] Dublin, Ireland: Labour Court. Available at: http://www.labourcourt.ie/Labour/Information.nsf/9e8d974e9c82c1b88 02569b20039d0e5/c2627f974b237b7180256f690040eab9/$FILE/Synopsis%20of%20Employment%20Equality%20Determinations%202004.pdf [Accessed 7 January 2010]. Lerner, G., 1986. The creation of patriarchy. New York: Oxford University Press. Malcomson Law, n.d. Discrimination: employment equality. [Online] Dublin: Malcomson Law. Available at: http://www.mlaw.ie/news/discrimination-employment-equality [Accessed 6 January 2010]. Rasaq v Campbell Catering [2004] Decision Number ED/02/52. United Nations Children’s Fund, n.d. Inequality in Employment. [Online] New York: United Nations. Available at: http://www.unicef.org/sowc07/profiles/inequality_employment.php [Accessed 6 January 2010]. Uwimana v TLC Centre [2008] DEC-E2008-009. Wolfe, A., 1994. The gender question. The New Republic, pp.27-34. Read More