What Happens if Employers Have to Prove They’re Not Discriminating?

August 2, 2019

CMP
Resolution Blog by Lesley Allport and Katherine Graham.

Employers aren’t afraid to discriminate – because they know it’s unlikely they’ll get caught out. So claims a new report from Parliament’s Women and Equalities Committee (WEC). The study looks at how the Equality Act of 2010 has been enforced, pointing to evidence of a lack of rigour and the potential for “institutional and systemic discrimination”.

The MPs involved are calling for the burden of proof in discrimination cases to fall on employers rather than those making allegations. It makes sense in terms of the numbers of employees who still feel unable to speak up because of their fears of not being listened to, or even discriminated against further. There are still organisations where there is a complete lack of diversity, and a clear imbalance of power. Despite everyone’s efforts the dial isn’t moving fast enough, or at all in some places so it needs to be socially engineered by the policy makers. But the issue is how genuine and long-lasting change can best be achieved.

The kind of language being used suggests that organisations might be largely complicit, uncaring or even discriminating on purpose, protecting those who discriminate for their own ends. Of course, discrimination is the product of a complex set of situations and problems, unconscious patterns of thinking and behaviour. Which means discrimination is equally complicated to address. Something that won’t be solved just by reversing the balance of power, by making sure the complainant is always king. What would be the potential for malicious cases? Age, gender, race, sexuality, religion. Every employee would have a reason to be thin-skinned; all of us would have an opportunity to escalate feelings of grievance if we wanted.

All HR teams want to play their part in creating fair, reasonable, positive-minded workplaces, where discrimination has no place. It doesn’t feel like making legal obligations “explicit and enforceable”, with more court cases demonstrating the penalties from not abiding by the Equality Act, will make this an easier task. More formal systems and measures to clampdown on the risks, more fear and anxiety, more suspicion, yes.

It all looks so complex – at least it does when the issue of discrimination is treated in such a legalistic and bureaucratic way. The picture is transformed when we start to think in more human terms. We’re all just people and sometimes we get things wrong. Mistakes are made, but they can be put right. Employees who have are worried about how they’re being treated should be able to talk about it; their line managers should have the conversational intelligence to be able to respond in the right ways. If open and mature conversations aren’t enough to help solve the situation, then HR should be making more use of mediation.

That way, employees, managers and the organisation get to learn a great deal about themselves, they get to learn about the nature of discrimination, why it happens and how it can be avoided for the future – even if there’s no easy solution and the case ends up having to take a more formal route. Legal recriminations and punishments usually only limit the conversation.