This article argues that there is potential for equality legislation to be used proactively to contest attempts by public authorities to remove funding from groups who share protected characteristics. This follows on from the first empirical study of the impact of the Equality Act 2010 on charities in the United Kingdom, conducted by the Charity Law and Policy Unit, University of Liverpool (the study). One finding of the study was that charities in the United Kingdom are using the Act to challenge local government funding cuts. Strict austerity measures have led to widespread funding cuts for service provision. As many charities are commissioned by local governments to provide social services, this has had a direct impact on the charities’ funding. However, some charities and service users found a useful sword in the Equality Act and predecessor legislation. They used judicial reviews to challenge whether local governments have properly fulfilled their Public Sector Equality Duty when making the funding cuts. In some cases successful challenges prevented or restored funding cuts, while others simply resulted in the same cuts after a better process. However, cuts to legal aid and judicial review reforms may well blunt this sword. Charities’ motivations and successes, the impact of judicial review and the uncertain future for the strategy are discussed.
Freedom of religion and the manifestation of religious belief can clash with working life in a number of ways, including time away from work for religious observance, conflicts over religious clothing and jewellery in an employer’s dress code or a request for a variation of duties based on a particular religious belief. Guidance issued by the Equality and Human Rights Commission (2013) following Eweida and others v. UK [2013] 57 EHRR 8 seems to suggest that employers in Great Britain should consider the ‘reasonable accommodation’ of religion in the workplace and, in particular, how an individual chooses to manifest that religious belief. Subsequently, there has been much debate about whether this is a better way of dealing with religious discrimination cases than the current complex legal framework of direct and indirect discrimination in the Equality Act 2010. Section 20 of the Equality Act 2010 already allows for reasonable adjustments to be made to working practices and the physical working environment for disabled employees. Should this duty be expanded to include religion and what would be the consequences and impact of such an accommodation or adjustment on the employment relationship?
This article considers the extent to which the Equality Act 2010 (EqA) represents a form of reflexive law, with a particular focus on provisions relating to age discrimination. I argue that the EqA may better reflect a form of command and control regulation, though it includes a number of reflexive elements. Drawing on data from the 2011 Workplace Employment Relations Study survey, I consider the extent to which the EqA has effected change in age-aware practices in UK organizations. I argue that the EqA has made limited progress in promoting age-aware activities in the United Kingdom, potentially reflecting the limitations of command and control regulation. Thus, I propose a number of reforms that may help to strengthen the reflexive aspects of the EqA.
Section 97 of the Enterprise and Regulatory Reform Act 2013 requires the addition of caste to the Equality Act 2010 by secondary legislation as ‘an aspect of’ the protected characteristic of race; but despite being mandated, no secondary legislation has been introduced and the addition of caste remains contested by some academics, civil society organizations and politicians who question the adequacy of any definition of caste, the estimates of the extent of caste discrimination, and whether legal protection against caste discrimination already exists under the Equality Act. In this article, we assess whether legal protection against caste discrimination is now assured following the Employment Tribunal judgement in September 2015 in Tirkey v Chandhok & Anor which held that discrimination on grounds of caste, depending on the facts, might be capable of falling within the scope of race as currently defined in the Equality Act. We argue that Tirkey is significant but not decisive and that it remains incumbent on government to extend the Equality Act to cover caste.
Amid the financial cuts in the public sector and changing academic environment, this article considers key aspects of the legal and regulatory framework within which a university is obliged to make ‘reasonable adjustment’ for a disabled student. In particular, we examine the scope of the 2010 Equality Act for promoting inclusive higher education, focusing on the duty to make reasonable adjustments and the public-sector equality duty. At the same time, it is pertinent to consider the relationship between the equality framework and alternative mechanisms whereby students can challenge the reasonableness of university procedure and decision-making, in particular the role of the Office of the Independent Adjudicator for Higher Education. Finally, the article considers the potential for consumer protection legislation to provide an additional focus on achieving an inclusive educational environment for disabled university students.
This article provides an analysis of two connected discriminatory practices in contemporary English male professional football. The first discriminatory practice concerns race and employment opportunities as coaches and managers despite the relative high levels of professional players from certain Black Minority and Ethnic (BME) backgrounds. An evaluation is made as to whether the introduction of a Rooney-type rule that requires BME candidates to be interviewed for these types of positions, which currently operates in American Gridiron Football, should be introduced in the United Kingdom. The second discriminatory practice concerns sexual orientation, appearing to result in it being impossible for gay professional players to openly acknowledge their sexuality. There are tensions between the right to privacy, on the one hand, and evidence of significant elements of homophobia in the culture of professional football, on the other. Both these discriminatory practices are complex and very much of the moment. This article provides an analysis of how these discriminatory practices manifest themselves. A key issue is an evaluation of how the Equality Act, particularly in the context of the positive action provisions under the Act, has provided a remedy to promote diversity in the particular social field of football. A range of anti-racism and anti-homophobia sports-related policies and rules has been developed to engage with these issues and this article examines the relationship between these normative mechanisms and the provisions under the Act. It is contended that the Equality Act’s positive action provisions fail to promote effective diversity in this social field in relation to race and sexual orientation. A case is made for more radical elements of affirmative action to be given legal support to bring about meaningful change in football in terms of diversity and inclusion.
Despite laws in Britain permitting limited positive action initiatives to combat disadvantage faced by minority groups in employment since the mid-1970s, the subject has notoriously been a neglected and highly controversial area in the United Kingdom. Notwithstanding the potential provided by sections 158 and 159 of the Equality Act 2010, it still appears that organizations prefer to steer clear of this opportunity to address disadvantage suffered by protected groups. While there is a body of work considering the theoretical importance of positive action in the United Kingdom, there is a lack of empirical exploration of the practical implications of these provisions. This article will provide a brief overview of the theoretical context and current positive action legislative provisions within the United Kingdom. In light of this context, the early findings of a small-scale qualitative study carried out by the authors will be discussed looking at the experiences of a purposive sample of public and private employers in relation to the positive action provisions of the Equality Act 2010. Early research findings suggest that while there was a clear willingness and openness by employers to use of outreach measures in order to redress disadvantage, there was evident wariness regarding a move towards preferential treatment as expounded by section 159. While respondents appeared to appreciate the business case for and utility of the positive action measures under section 158, there was far less enthusiasm for more direct preferential treatment, with many respondents raising serious concerns regarding this. These concerns often reflected a highly sensitive risk-based approach towards any action that could expose their organization to the possibility of ‘reverse discrimination’.
This study reports on the results of a content analysis of federal court cases examining employment discrimination litigation in private, federal, and state/local sector organizations. One objective was to determine whether there are differences in the types of employment discrimination claims (e.g. race, sex, age, and disability) across the different sectors. A second objective was to determine whether there are differences in the outcomes (whether the case outcome or ruling was for the plaintiff or the defendant) of the different types of employment discrimination cases across the different sectors. The results of this study indicate that there are substantial differences in both the types of discrimination charges and the outcomes of those discrimination charges across the different sectors. The implications of the most significant findings are discussed, and recommendations are offered to organizations interested in reducing the occurrence of employment discrimination and the costs associated with employment discrimination litigation.
This article examines the historical context of virginity testing in Southern Africa with a focus on South Africa. It then examines the arguments often adduced in justifying the introduction of this practice. The two major arguments to support the reintroduction of virginity testing, namely, that it helps in reducing the spread of HIV and in preserving societal moral values are critically examined. Thereafter, the article discusses how the ever contentious debate between universalists and relativists applies to virginity testing. The last part of the article then considers the human rights implications of virginity testing.
This article analyses data collected on mental health discrimination (MHD) litigation in Britain between 2005 and 2012. The data on MHD litigation are presented by an examination of the following: population of cases reaching the Employment Appeal Tribunal and the additional (to MHD) claims brought in the cases, findings relating to the characteristics of the claimant and respondent and the workplace and organizational context from which the legal action arises, the forms of the MHD being claimed and key legal issues arising from the analysis of case law. Results suggest that a substantial gap between law, policy and practice remains and that organizations are not being proactive enough in preventing and tackling the issue of MHD arising in the workplace.
A concomitant increase has been observed between the prevalence of obesity and the stigmatization and discrimination of the condition. Despite reports of such negative experiences, there appears to be little deterrence for individuals to behave in a non-discriminatory fashion towards the overweight and obese. This article focuses on an emergent academic, legal and medical debate concerning obesity and human well-being and its possible impacts in the workplace and on disability discrimination laws. The disability laws in the United Kingdom require employers and employees not to discriminate or harass their colleagues, yet the model of discrimination seen in the United Kingdom emerges from a historical basis where sex and race were accommodated by the
The impact of ‘subtle’ admission policies utilized by many secondary schools in Ireland on children from minority groups has been recently flagged as problematic by the Irish Department of Education. A new regulatory framework has been promised to address this issue but has yet to emerge. In the meantime, such policies, which include preferential parental legacy rules, certainly trigger the reconfigured principle of indirect discrimination in the access to and enjoyment of goods and services under the Equal Status Acts 2000–2012, which transpose a number of EU Equality Directives. This article considers the approaches taken to the demonstration of how suspect policies give rise to ‘particular disadvantage’ for protected groups in light of the shift away from the mandatory use of statistical evidence in the context of a discussion of a recent High Court case, Stokes v. Christian Brothers High School. This decision concerned the impact of a parental legacy rule on a child from Ireland’s Traveller community, a community that has a long and virulent history of educational (and other forms of) disadvantage. In response to the limited understanding of indirect discrimination taken in the High Court (which pivoted on the Oxford English Dictionary), which significantly undermines the principle’s ability to tackle structural inequalities, I go on to demonstrate how use of both the ‘social facts’ approach and a statistical approximation of the impact of the policy on the complainant’s group reveals ‘particular disadvantage’ in the use of legacy rules on Traveller children, children of migrants and children raised in non-traditional families.
In Fisher v. University of Texas at Austin, the Fifth Circuit Court of the Appeals was recently charged with determining whether the University’s race-conscious admissions policy is narrowly crafted to produce an ethnically diverse student body and the educational benefits that flow therefrom. In light of the modern hostility towards affirmative action, as demonstrated by US Supreme Court opinions and various statewide bans of racially preferential programs, the pundits question whether affirmative action will soon become obsolete. Equally important, since such state bans have proven to correlate with declines in public college admission rates of minorities, and because one’s education naturally coincides with their job opportunities, the Fisher ruling could indirectly perpetuate longstanding barriers between minorities and lucrative career options that have been traditionally closed to them. Thus, a question that may become pertinent in the aftermath of Fisher is, "In a nation without affirmative action programs, how can employment institutions ensure that historically disenfranchised groups will be recruited and considered for, and represented in, the corporate workforce?" Notwithstanding Fisher’s ultimate judgment, it is incumbent upon employers to forge the answer by significantly broadening their current diversity recruitment efforts if Corporate America is to ever truly achieve its critical mass.
This paper argues that the repeal of Don't Ask Don't Tell (DADT) in the United States represents a policy window that would lend itself to the passage of a federal Employment Non-Discrimination Act (ENDA). Although attitudes towards lesbian, gay, and bisexual workers are changing, no comprehensive federal legislation to protect these workers currently exists. Using John Kingdon's policy analysis model, our paper considers the history and evolution of public attitude that led to the repeal of DADT. Further, how this evolution has opened a window of opportunity for the passage of a federal ENDA is also considered. Implications for workplace advocates, including considerations for policy, practice, and research, are explored.
In Belgium a man was convicted for incitement to racial hatred and discrimination because he publicly tore up a Koran, before the eyes of a small group of Muslims. The case fits within a wider development of increasing legal sensitivity to ‘Islamophobia’. This development, however, has several problematic aspects and implications, as is illustrated by a detailed analysis of the case.
Discrimination based on grounds such as gender or disability has been widely studied in recent research, but the issue of discrimination on grounds of religion or belief has proven to be far less traceable, less studied and more ideologically charged. In Turkey, a state discourse stating that 99% of the population is comprised of Muslim citizens conceals religious diversity in the country. Our contribution focuses on two main manifestations of discrimination within this framework: discrimination on the basis of wearing a headscarf in (or outside) the workplace and discrimination based on religious affiliation, specifically beliefs other than the majority Sunni-Hanefite Islam, in particular Alevis and non-Muslim minorities. Since there are a number of recent studies dealing with the issue of the headscarf, our primary focus will be on the latter topic. Our findings suggest that in the Turkish case, while the headscarf has dominated the issue of discrimination on religious grounds, a more egregious discrimination takes place against members of belief groups other than the Sunni-Hanefite majority. The issue of discrimination in the Turkish workplace on grounds of religion or belief presents interesting questions and challenges. Firstly, in a non-litigate society, discrimination on the basis of religious affiliation is hard to track and quantify. Secondly, recognition of difference does not always lead to pluralism.
Against the backdrop of a well-regulated and pragmatic Danish labour market, the question of reasonable accommodation is discussed on the basis of current legislation, recent legal cases and substantial interview material drawn from the RELIGARE sociolegal research done in Denmark. Employees of religious faith have made religious claims and thereby challenged a secular understanding of the Danish labour market. This raises the question of the extent to which the religion of the individual can be accepted in the general public sphere. At the same time, religious ethos organisations have argued for the protection of their organisational identity and sought to employ and dismiss personnel according to the norms of the religious ethos, raising the question of how far ‘reasonable accommodation’ extends. Both the individual and the collective cluster cases ultimately raise questions concerning where to draw the line between accommodating religion and restricting freedom on the basis of professionalism, job functions or other reasons. On the basis of empirical findings, this article concludes that the pragmatic approach is supporting a renewed religious identity of faith-based organisations, but also warns against hijacking rights of individual employees.
The visibility of religious identities in workplaces has become a recurrent topic of certain public debates and tensions in France. It is generally the visibility of Muslim identities and practices of Islam that are at the centre of these tensions. This article shows in the context of French republican laïcité that religious issues are considered as private issues that should not play out openly in the workplace, which is considered to have a more public character. With a focus on the French labour law framework and religious discrimination issues, interviews with elected politicians, religious leaders, unionists, representatives of civil society organisations and legal experts show that religious discrimination in the French workplace is a more complex phenomenon than it seems. Discrimination of religious employees, in a direct or indirect manner, happens more often than is officially reported in France. Many respondents suggested that a great deal of religious discrimination is, at best, reframed as ethnicity-based or gender-based discrimination. The article also discusses some recent examples of businesses that treat the issue of religious diversity in the French workplace in a more pragmatic manner, opening up more possibilities for reasonable accommodation.
After a period during which many in the West, especially Europe, expected religion to progressively fade away from public life, for various reasons religion has, over the last two decades, re-established itself as a phenomenon to be reckoned with in the globalized West. It has also become a favoured research topic for, amongst others, social scientists and legal scholars. While the European Union (EU) has a limited competency when it comes to matters of religion, in 2000 an important Directive was adopted, prohibiting discrimination on the basis of religion or belief in the area of employment. The EU’s interest, however, extends beyond the anti-discrimination framework, explaining why in 2010 it funded a three-year multidisciplinary project on religious diversity and secularism in Europe (RELIGARE). One of the areas of investigation, illustrating the various tensions that arise when religious claims are formulated in 21st-century Europe, concerned the area of employment and labour relations. This article provides an introduction – philosophical, legal and sociological – to a special issue with six contributions drawing from sociological data collected within the RELIGARE project. From a sociological perspective, these contributions illustrate the challenges and tensions raised by religion and belief both in secular workplaces (the individual religious freedom cluster) and in faith-based or religious ethos workplaces (the collective religious freedom cluster) in England, the Netherlands, Denmark, Bulgaria, France and Turkey.
Despite some progress in the educational and professional attainments of Nigerian women, there are still challenges confronting them in the bid to achieve full integration at work. This article examines the various dimensions of the concept of sexual equality and non-discrimination at work and their manifestations in the Nigerian workplace. In particular, the article undertakes an analysis of discriminatory gender-related workplace challenges militating against women’s access to formal employment and promotion to higher managerial and professional positions. The adequacy of provisions relating to maternity protection, childcare, health and safety at work and equal remuneration are examined, while statutory and judicial responses to these issues are analysed against the background of relevant international and regional standards. Nigerian dimensions of other aspects related to sex-based discrimination, including those touching on sexual orientation and gender reassignment, are also highlighted.
Issues of religion and the relations with the state do not attract continuous public interest in Bulgaria as they do in a number of Western European countries discussed in this special issue. Awareness and sensitivity of the Bulgarian civil society towards issues of religious diversity is low. This is also the case to an even greater extent with the issue of how religion and religious diversity are accommodated in workplaces. As a rule, public interest in religion is aroused only by certain provocative events. Explaining the historical background and developments that led to the contemporary legal and institutional framework, this article utilizes data from interviews with key opinion makers to provide context and insight in public debates and perceptions on the ground in Bulgaria. Interviews were conducted with key Bulgarian opinion makers, including politicians, unions and representatives from the main religions in Bulgaria. These respondents declared adamantly that there are no problems related to or provoked by religion in the field of labour-legal relations concerning individuals. However, there were some examples provided concerning religious holidays and prayers; the issue of religious dress in the workplace has been largely absent in legal forums. One reason for the lack of cases may be the lack of trust in the justice system as well as the presence of more pressing matters for workers who may face poverty, in one of the poorer EU Member States.
During the last two decades, Bulgaria has developed the legal and institutional framework for the protection of human rights and equal treatment, but its practical implementation is still not effective enough. Individuals and organizations from different religious communities still try to find everyday solutions for their problems without opting for a real long-term legal resolution.
Interviews conducted with leading actors in England asking a range of questions about religious diversity and the legal framework and, in particular, about reasonable accommodation, helped identify a number of areas of concern. There was some doubt about whether specific legal provision should be brought in to guarantee reasonable accommodation. However, there was broad support for having the principle adopted in the practice of employers, whereas some preferred the current informality rather than the principle being enforced through litigation. None of the respondents came up with illustrations outside Judaism, Christianity or Islam. The results are consistent with recent critical studies showing that the assumption in social sciences that religion is a universal has been imported from theology. Religion-based questions only pick out certain phenomena specific to some cultures and an inevitable skew is created when asking such questions because they make sense only within an Abrahamic religious framework. Although enabling the identification of some aspects of culture considered to merit reasonable accommodation on the grounds of religion, the results also pose questions about the adequacy of current standard research methodologies which assume that religion is a universal.
This article analyses religious claims in the workplace arising from tensions related to religious diversity in the Netherlands. On the basis of interviews with leaders in the religious, political and public sectors, we look at the perception of such tensions and discuss the feasibility of accommodating them. Our study distinguishes between the individual cluster (private and public sectors) and the collective cluster. In the former our respondents argue that individual religious employees in the private sector are not under pressure; rather, there is strong support for these individuals to act in accordance with their religious beliefs. When it concerns public employment, however, religious civil servants do seem to be under pressure in the Netherlands; secular respondents argue that civil servants are part of the state apparatus and therefore have no right to make direct or indirect distinctions on the basis of their personal beliefs. In the collective cluster, we found that associational freedoms for religious organizations and faith-based organizations have also come under secularist pressure; non-discrimination is often invoked as the supreme principle, trumping associational autonomy. These observations suggest a shift in the Dutch tradition of governing religious diversity and portend its significant impact on the position of religious employees in the Netherlands.