PARTNERS EMPLOYMENT LAWYERS “DISCRIMINATION FROM THE INSIDE OUT”

10th September 2014

Discrimination AwarenessA Quick Overview

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Discrimination Awareness

• Statistics• Equality Act 2010 – applies to all employers• Unlimited compensation

What is a protected characteristic?

Who is protected?

What is a protected characteristic?

Unlawful to discriminate against individuals in respect of specific characteristics known as protected characteristics which are:

• Age

• Disability

• Race

• Sex

• Sexual orientation

• Religion or belief

• Pregnancy/maternity

• Gender reassignment

Types of discrimination

• Direct

• Indirect

• Harassment

• Victimisation

• Discrimination arising from disability

• Failure to make reasonable adjustments -disability

Harassment

• Unwanted conduct – related to protected characteristic

• Purpose or effect

• Violating Dignity

• Hostile/degrading/humiliating or offensive environment

Victimisation

Victimisation – protected acts – detriment

retaliation against someone who has complained or has supported someone else's complaint about discrimination or harassment.

Understanding Discrimination in the Workplace

Robert W. Livingston, Ph.D.Professor of Organisational Behavior

Director, Centre for Leadership, Ethics, and Diversity (LEAD)

University of Sussex

I. What is diversity and why is it important?

How do people perceive diversity?

Why does diversity matter?

What is inclusion it distinct from diversity?

II. What are some barriers to (demographic) diversity?

Can people be nonconscioiusly discriminatory?

What is the relationship between hierarchy and diversity?

III. How can we promote diversity in organisations?

Modifying procedural and structural practices

Creating effective mentorship and sponsorship

Key Questions

What is diversity?

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What is diversity? 1. Surface-level Diversity—diversity in observable

categories (race, gender, etc.)

2. Deep-level Diversity—diversity in culture, ideas, perspective, or point of view

3. Motivated Diversity—diversity being construed in a manner convenient to the perceiver (Unzueta et

al., 2011)

1. Discrimination and Fairness—diversity is a moral imperative. Progress measured by recruitment and retention goals. Numbers game.

2. Access and Legitimacy—diversity is valued, but in its place. Diverse individuals may feel used, constrained, and exploited.

3. Integration and Learning—diversity is viewed as a valuable resource. Diverse people provide unique perspectives and shapes the organization. Diversity serves as catalyst for creativity and innovation

Why does diversity matter? (Ely & Thomas, 2001)

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“Diversity Trumps Ability” (S.

Page, 2007)

Superadditivity 2 + 2 = 5

The more complex the task

or problem, the greater the

benefit of diversity

Gamers Solve Decade Old HIV Puzzle in 10 daysAP-October 17, 2013

Scientists from University of Washington have been struggling

for the past decade to decipher the complex structure of an

enzyme that exhibits behavior similar to that of an enzyme

key in the development of AIDS from an HIV infection, and

which might hold a critical role in building a cure for the

disease. Gamers playing spatial game Foldit have managed to

collectively determine the enzyme’s structure in ten days…

Old Mutual Building, Harare, Zimbabwe

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Barriers to Diversity: Underlying Causes of Discrimination

Stereotypes and prejudice often influence judgments of others outside

of:

1. awareness

2. intent

3. control

Aversive Racism Theory

(Gaertner & Dovidio, 1986)

People simultaneously possess:

1.Egalitarian values

2.Anti-Black Affect (feelings)

People push their negative feelings into the subconscious to avoid threats

to self-integrity.

However, these feelings linger to affect behaviors in situations that are

ambiguous.

e.g., Helping Study, Hiring Study

Personnel DecisionsR

ecom

men

dat

ions 8

7

6

5

4

3

2

1

Strong Moderate

Qualifications

Strong Moderate

Qualifications

1989 1999

Strong Moderate

Qualifications

2005

Black Candidate

White Candidate

* See also Bertrand & Mullainathan (2005). Are Emily

and Greg more employable than Lakisha and Jamal?

1. Blacks are systematically

disadvantaged by prejudice and

discrimination

2. (Well-intentioned) Whites have no idea

that they contribute to the

disadvantages status of Blacks.

Aversive Racism Theory reveals

at least TWO Problems

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Prejudice against women is not characterized by

negative emotions but rather ambivalence:

Warmth (Positivite)

Women are viewed as kind

Women are viewed as moral

Women are viewed as valuable

Paternalism (Negative)

Women are viewed as subordinate

Women are seen as dependent and weak

Women are held to a high standard of “purity”

Ambivalent Sexism (Glick & Fiske, 1996)

21

Benevolent sexism results in warmth and protection

toward women who fulfill traditional female

expectancies (e.g., warmth, purity,

subordination)

Hostile sexism results in antipathy and resentment

toward women who violate traditional gender roles, or

seek to gain power over men

Benevolent versus Hostile

Sexism (Glick & Fiske, 2001)

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1. Women seek to gain power by getting control over men.

2. Once a woman gets a man to commit to her, she usually

tries to put him on a tight leash.

3. Many women get a kick out of teasing men by seeming

sexually available and then refusing male advances.

4. Many women are actually seeking special favors, such as

hiring policies that favor them over men, under the

guise of asking for “equality”.

Hostile Sexism Items

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1. Men should be willing to sacrifice their own well-being in order to

provide financially for the women in their lives

2. A good woman should be set on a pedestal by her man

3. Many women have a quality of purity that few men possess

4. Women should be cherished and protected by men

Benevolent Sexism Scale

24

Interestingly men and women do not differ in their endorsement of benevolent sexism items

Why is this a problem? Isn’t benevolent sexism…well, benevolent?

Perils of Benevolent Sexism

25

Downside to “Women are Good”

stereotype (Heilman & Chen, 2005)

26

Interestingly men and women do notdiffer in their endorsement of benevolent sexism items

Why is this a problem? Isn’t benevolent sexism…well, benevolent?

Moreover, seemingly positive gender stereotypes may keep women out of leadership roles

Perils of Benevolent Sexism

27

Similarities

Both involve perception of inferiority and lower competence

Both involve hierarchical subordination of outgroup

Differences

Sexism not characterized by negative feelings toward outgroup

Sexist attitudes often widely shared by women as well as men

Women and men more interdependent

Racism vs. Sexism

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Women and minorities are often not typically under-represented at

lower ranks

Women and minorities are slightly to moderately under-represented in

middle management

Women and minorities are highly under-represented in upper

management positions (e.g., SVP, Partner, Managing Director,

CEO, Lieutenant, Captain, General, etc.)

Relationship between Hierarchy and Diversity?

Top Leadership Diversity in the US and UK:

Fortune 500 and FTSE 100

Female Fortune 500 CEOs in 2014:

Female FTSE 100 CEOs in 2014:

Black Fortune 500 CEOs in 2014:

Black FTSE 100 CEOs in 2014:

15

2 (4)24

Central Research Questions:

Why are there so few women and

minorities in positions of leadership

and power?

Agency Penalty for Women Leaders

Women leaders punished for being too tough, assertive, bossy, or self-

promoting (Brescoll & Uhlmann, 2008; Eagly & Karau, 1991;

Livingston, Rosette, & Washington, 2012; Okimoto & Brescoll, 2010;

Rudman, 1998; Rudman & Fairchild, 2004)

Why? Violation of Prescriptive Stereotypes (Rudman, 1998)

Women “should“ be warm and communal Leaders “should” be tough and

independent

Gender Double-Bind: Women leaders violate stereotypes for “women” while

fulfilling stereotypes of leaders

Constraints on Women’s Leadership Style

0

10

20

30

40

50

60

Favorable

Evaluation

Democratic Autocratic

Leadership Style

Men Women

Disparity in how men and women are evaluated when they use an “autocratic” style (Eagly & Johnson, 1990)

Tiedens (2001) demonstrated the Bill Clinton was seen as having higher

status and a stronger leader when he showed anger vs. sadness

following Lewinsky scandal

Brescoll and Uhlmann (2008) experimentally demonstrated that anger

causally increased status and even salary for male leaders, but

decreased status and salary for females leaders.

Divergent Reactions to Male versus Female Agentic Behavior

Babyfaceness is a “gestalt” comprised of features such as:Round face Large forehead Small chin

Perceptual OutcomesWarmTrustworthyDocile

Credit: A. Todorov, A. N. Mandisodza, A. Goren & C. C. Hall, Science 308, [1623] (2005)

What about Black males?

Due to social hierarchical prescriptions, Black males are not benefitted by

signals of power

Disarming mechanisms — physical, psychological, or

behavioral tendencies that mitigate perceived threat by

increasing perceptions of warmth, humility, similarity, or

deference

Style of dress Manner of speech

Lighter skin Political ideology

Smiling/deferential behavior Displays of erudition

Whistling Vivaldi (Steele & Aronson, 1995)

Babyfaceness

The Teddy Bear Effect (Livingston & Pearce, 2009)

Participants: 147 participants total (Study 1 and Study 2)

Current and Former Black (Male) Fortune 500 CEOs

Matched White (Male) Fortune 500 CEOs

Random White (Male) Fortune 500 CEOs

http://www.forbes.com/2009/07/07/babyface-black-ceo-leadership-

ceonetwork-study.html

http://www.newsweek.com/2009/10/14/black-ceos-and-the-teddy-bear-

effect.html

http://www.msnbc.msn.com/id/30642824/

Mean Babyfaceness Ratings

Correlations between Babyfaceness Ratings and “Success” (Corporate Prestige and Earnings)

0.49

0.30

0.14

0.29

-0.22

-0.49

-0.24

-0.49-0.6

-0.4

-0.2

0

0.2

0.4

Total Comp Salary Ranking Revenue

C

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Black CEOs

White CEOs

Women in Leadership Positions

1. Mask Categories

2. Modify Evaluation and Promotion

Procedures

3. Promote Mentoring and Sponsorship

Strategies for Counteracting Race and

Gender Bias

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Blind Auditions: Gender

Records from major US symphony orchestras from 1970-1996:

Audition data from 14,000 individuals show the use of a screen increases the probability that a woman will advance from preliminary rounds by 50%

Roster data from 11 major orchestras show the switch to blind auditions accounts for 30% of the increase in the proportion of women among new hires

Goldin & Rouse (2000) The American Economic Review, 90, 4, 715-741.

What if Gender and Race cannot be obfuscated? Use objective rather than subjective criteria for evaluation (Biernat

& Manis, 1994)

A 5’11” woman can be judged as “taller” than a 6’1” man?

Because “tall” is a subjective dimension that is influenced by baselines

or standards (i.e., tall for a woman)

One way to circumvent this bias is by asking about the objective height

(in feet and inches) of a target

Be Proactive in Promoting

Mentoring and Sponsorship

Women and BMEs have limited access to (or are excluded from) critical

social networks (Ibarra, 1993)

+

Women and BMEs won’t (can’t) self-promote

=

Less opportunity for Women and BMEs!

1. Diversity is subjective. Organisations should think about what “diversity” means to them

2. Diversity policies have distinct motives. Organisations should think about why diversity is important

3. Diverse individuals face systematic disadvantage within organisations

4. Majority groups (e.g., Whites, males) are often unaware of minority disadvantage

5. Changing structural policies and procedures is more effective than changing minds/hearts

Key Take-Away Points

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45 MINUTE INTERVAL

Help yourself to Afternoon Tea!

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02073746546 www.partnerslaw.co.uk

Age, Sex and Disability

Partners Employment Lawyers 02073746546

www.partnerslaw.co.uk

Under the EqA 2010, it is unlawful for anemployer to:

Discriminate directly.

Discriminate indirectly.

Subject a job applicant or employee toharassment related to age.

Victimise a job applicant or employee.

Age Discrimination

Exceptions

Age discrimination is permitted in certain circumstances

Retirement

The exception enabling an employer to dismiss anemployee by reason of retirement was removed on 6 April2011

In its foreword to the government response, thegovernment makes the point that: "these changes do notmean that individuals can no longer retire at 65 - simplythat the timing of that retirement becomes a matter ofchoice rather than compulsion".

Sex Discrimination

Under the EqA 2010, it is unlawful for an employer to:

Discriminate directly.

Discriminate indirectly.

Subject a job applicant or employee to harassment related to sex, sexual harassment, or less favourable treatment because they reject or submit to harassment.

Victimise a job applicant or employee.

CASE STUDY - WALDORF WINDOWS

Waldorf Windows is a large manufacturer of double glazing units.

Tiffany has worked in the Waldorf Windows factory for 15 years since leaving school at 16.

She has three school age children.

Waldorf Windows has always worked a 2 shift day, 6 a.m. to 12 midday and then until 6 p.m. Since having her children, Tiffany has always worked the early morning shift. It means that she can pick the children up from school.

Waldorf Window has just secured a significant contract.

In order to service the contract Waldorf Windows are going to put in a 3 shift system, with an extra shift from 6 p.m. to 12 midnight. It wants to move Tiffany onto that new shift.

Tiffany has said that she cannot work the shift because of her childcare obligations.

Questions:

Is there a risk of a discrimination claim from Tiffany?

If so, how will Waldorf Windows defend any claim?

Disability Discrimination I

Disabled if:

• physical/mental impairment

• long term

• substantial & adverse effect on ability to do day to day activities

Disability Discrimination II

Discrimination arising from disability

Association & Perception

It’s who you know, as well as what you are!

Disability Discrimination III

Duty to make reasonable adjustments

Disability IV

What is reasonable?

Case Study: Funky Jewellery

You are a marketing executive with bags of youthful enthusiasm.

Have funky fun and come and work for Funky Jewellery!

Scenario

Funky Jewellery is a large modern jeweller

It is low-cost jewellery, but Funky would never cast aspersions on its quality

Funky want a new marketing executive

They put the following advert in a national newspaper

"You are a marketing executive with bags of youthful enthusiasm. Have funky fun and come and work for Funky

Jewellery!“

Question:

Is it about to become a lot less fun for Funky Jewellery?

Race, Religion or Belief

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Race/Religious Discrimination

Under the EqA 2010, it is unlawful for an employer to:

Discriminate directly by treating a job applicant or employee less favourably than others because of race/religion or belief.

Discriminate indirectly by applying a provision, criterion or practice that disadvantages job applicants or employees of a particular racial/religious group without objective justification.

Subject a job applicant or employee to harassment related to race race/religion or belief.

Victimise a job applicant or employee because they have made or intend to make a race race/religion or beliefdiscrimination complaint under the EqA 2010, or because they have done or intend to do other things in connection with the Act.

Definition of Religion or Belief

Under section 10 of the EqA 2010, "religion or belief" is defined as follows:

"Religion" means any religion, and a reference to religion includes a reference to a lack of religion.

"Belief" means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

Religious Belief

The belief must be genuinely held.

It must be a belief, not an opinion or viewpoint based on the present state of information available.

It must be a belief as to a weighty and substantial aspect of human life and behaviour.

It must attain a certain level of cogency, seriousness, cohesion and importance.

It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Philosophical Belief

It must be a belief, not an opinion or viewpoint based on the present state of information available

It must be a belief as to a weighty and substantial aspect of human life and behaviour.

It must attain a certain level of cogency, seriousness, cohesion and importance.

It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It must "have a similar status or cogency to a religious belief". However, it need not "allude to a fully-fledged system of thought"; in other words, it does not need to be an "-ism".

It need not be shared by others.

Exceptions…Race discrimination may be permitted in certain limited circumstances. For example:

Where there is an occupational requirement (OR) for an employee to be of a particular race.

Positive action, but not positive discrimination, may be permitted to address existing inequalities.

Religion or belief discrimination may be permitted in certain limited circumstances (see Exceptions: when religion or belief discrimination may be lawful). For example:

Where there is an occupational requirement (OR) for an employee to be of a particular religion or belief.

Positive action, but not positive discrimination, may be permitted to address existing inequalities.

Where the job is for a teacher in a denominational school.

Can a genuine belief in climate change be classed as a

philosophical belief under Religion or Belief Regulations?

Mr N has a belief in man-made climate change and the

existence of a moral duty to live in a way that mitigates

or avoids it. He argues that his belief relating to climate

change and the need to cut carbon emissions is"not

merely an opinion but a philosophical belief which

affects how I live my life including my choice of home,

how I travel, what I buy, what I eat and drink, what I do

with my waste and my hopes and fears".

Is this capable of being a "philosophical belief"

Case Study: Climate Change

Dress Code

• Indirect Discrimination

• Sikhs & Safety helmets

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