A Guide to Direct and Indirect Discrimination

Joe Caccavale

2

November

2020

|

6

min read

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Workplace discrimination affects everyone, regardless of their position. Staff members deserve to carry out their tasks in a positive and encouraging environment and evaluated solely on their skills and efforts. Managers and team leaders are therefore responsible for creating an equitable workplace so that everyone can perform to the best of their ability.

Ethics aside, there is also a compelling business case for fighting workplace discrimination. It is estimated that in the UK, workplace discrimination costs up to £40b annually. These costs range from staff turnover and decreased productivity to medical expenses resulting from work-related mental health issues.

In theory, we are all morally obligated to identify and address workplace discrimination. In practice, however, tackling discrimination is a lot less straightforward. Discrimination takes many forms; it can come from a single person, group or event. It can also be a series of practices that are arguably embedded in workplace culture. Therefore, for us to fix the problem, we must understand the difference between direct and indirect discrimination. This is the first step towards creating a fairer (and ultimately better) work environment for everyone.

What is direct discrimination?

Direct discrimination is when someone is treated differently (usually worse) because of a protected characteristic. You don’t necessarily have to be able to identify someone being treated better to prove direct discrimination. However, you would have to prove that they would’ve been treated better in a similar situation.

The nine protected characteristics under The Equality Act (2010) are as follows:

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Race
  • Religion and belief
  • Sex
  • Sexual orientation

You can also be subject to direct discrimination if someone thinks you have one of these characteristics (e.g. they may incorrectly assume your sexual orientation or religious beliefs) or simply by being associated with or connected to someone with one of the protected characteristics above.

What are some examples of direct discrimination?

  • If a pregnant employee comes under scrutiny due to absence caused by morning sickness, this would be direct discrimination due to pregnancy and mate
  • If an employee informed their manager/ boss that they’re going to be undertaking gender reassignment surgery and were moved to a non-client facing role as a result, this would be direct discrimination on the grounds of gender reassignment.
  • If an employee were to be disciplined or criticised for taking time off to care for a disabled child, this would be classified as discrimination by association. Although the employee doesn’t have a protected characteristic, they’re still a victim of direct discrimination since their child has a protected characteristic. 

How do workplaces get away with direct discrimination?

Unfortunately, while a person may be ‘officially’ protected against discrimination by law, this doesn’t necessarily mean they are immune from its effects. One of the biggest problems is that workplace discrimination often goes unreported. A study by HR Acuity found that 56% of employees have witnessed ‘inappropriate, illegal or unethical behaviour’ ranging from discrimination to harassment. However, many of these employees do not escalate their concerns due to a fear of not being believed or taken seriously. Unfortunately, these fears are often substantiated. HR Acuity found that whilst men and women witness illegal or unethical conduct almost equally, issues raised by male employees are 26% more likely to be investigated.

We must also consider the risk of backlash as a result of reporting discrimination. This can consist of overt harassment, negative performance reviews or being consistently passed over for promotion. Given the risks associated with reporting discrimination and the lack of a guaranteed outcome, it is understandable how direct discrimination is allowed to continue.

Unfortunately, official complaints procedures are often the only way for employers to be held responsible for discrimination. Without verifiable evidence of direct discrimination, managers can claim they were unaware of it and therefore cannot be expected to take active steps to stop it.

What is indirect discrimination?

Indirect discrimination is when a policy that applies equally to everyone results in people with a protected characteristic being disadvantaged. While a person may not be being deliberately singled out, they will still often feel excluded, isolated or disenfranchised.

Indirect discrimination is not usually intentional, but more likely to be the result of an oversight on behalf of whoever created the policy. Therefore, we can often assume that indirect discrimination is a byproduct of unconscious bias.

To prove a case of indirect discrimination, there must be a policy that applies to everyone, whilst disadvantaging those from a particular group with a protected characteristic (when compared to those not in this group).

You’d also have to prove that the policy in question had caused a degree of disadvantage and that the policy was not justified given the disadvantage caused.

Indirect discrimination examples

  • If an employer makes it mandatory for employees to work a given number of Saturdays per month, this would be indirect discrimination on the grounds of religion - since Saturday is a religious day in Judaism (putting Jewish workers at a disadvantage).
  • If an organisation has a policy banning certain hairstyles (braids and dreadlocks, for example) then this would be classed as indirect discrimination based on race. Whilst some employees would not be affected at all, black employees would be at a disadvantage since they’d now be unable to wear their usual hairstyle.
  • If an employer requires all employees to work full-time, this could be a case of indirect discrimination. This is because a policy like this will likely disadvantage women more than men, given that they’re more likely to be caring for young children (especially in the first few months after giving birth).

Indirect discrimination in the hiring process

Companies often claim to take a hard line against workplace discrimination. However, many of them continue to uphold systems that seem fair or even innocuous, yet restrict opportunities for certain groups of people.

Take, for example, job postings that specify the need for many years of experience. While it is important to have criteria for effective talent acquisition, this may exclude younger candidates with a range of relevant and transferable skills. It may also disadvantage women, as they are more likely to have gaps during their time in the workforce due to family commitments.

Internal hiring processes are particularly susceptible to indirect discrimination. Say a company is seeking a new director and has decided to only accept applications from current employees. If their team is predominantly white or male, then this creates a wildly unbalanced candidate pool. On a similar note, research conducted by PayScale found that women and ethnic minorities were significantly less likely to be referred for new workplace opportunities by their peers.

Indirect discrimination often operates under the guise of legitimacy and fairness. But the above examples highlight how systemic bias hinders people from advancing and succeeding in the workplace, despite being protected by laws such as The Equality Act.

At Applied, we are passionate about helping companies create environments that are free of discrimination and bias. That’s why we have designed a blind recruitment platform that ensures all hiring decisions are based purely on skills and suitability. To find out more about who we are and what we do, check out our resources, or go ahead and request a demo of the Applied platform.