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Risk of falling foul of anti-discrimination laws
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23/01/2008
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The more imaginative organisations are in trying to enhance diversity in their workplace, the more likely they are to breach anti-discrimination law, according to a new report by law firm Nabarro.
The report reveals that contradictions between what employers are doing to promote diversity and the requirements of UK and EU anti-discrimination law are becoming increasingly stark. The more energetic employers are in promoting diversity, the more they risk falling foul of the main prohibitions on discrimination. For example, diversity strategies often include ‘positive action’ measures designed to make workplaces more representative, yet the scope for such measures in much of UK and EU anti-discrimination law is very narrow. Aspirational targets are lawful, but quotas are not and are considered positive discrimination, which is unlawful in the UK.
Sue Ashtiany, partner and head of employment at Nabarro says: “Diversity strategies have now become ubiquitous and few companies want to be seen to be lagging behind. However, the danger is that ‘diversity speak’ becomes a cloak for incoherent, inconsistent and unattainable objectives.
“The scope for ‘positive action’ is very limited and it seems inevitable in these circumstances that employers and organisations, including well-meaning ones, will run into difficulties. It is easy for actions to slip into the illegal category of positive discrimination. For example, the Race Relations Act (1976), provides only for targeted training and encouragement, and only where members of the racial group in question are under represented in work of a particular kind. Therefore, rather than being praised for promoting equality, progressive employers can find themselves liable for unlawful discrimination.”
The report cites a growing number of diversity initiatives that have run into trouble.
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Author
Chris Rowlands
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