Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Copyright Seán J Crossan, 10 September 2019

Tickets for “people of colour” … or the problem with positive discrimination

Photo by Ehimetalor Unuabona on Unsplash

Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019

Sexism in the UK

Photo by 🇨🇭 Claudio Schwarz | @purzlbaum on Unsplash

If you read this Blog fairly regularly, you will be aware that the issue of equality (or should that be the lack of equality?) is a common theme.

Depressingly in 2019, print and online media are full of stories which reinforce the fact that, as a society, the UK still has a long way to go in terms of gender equality. From the entrenched gender pay gap; to pregnancy and maternity discrimination; and the prevalence of incompetent male leaders, it still looks very much like a man’s world.

If you don’t believe me or think that I’m painting an overly bleak picture, please read about the latest research carried out by the Young Women’s Trust which found that 2 out of every 5 female managers believes that the place where the work suffers from sexism.

Despite the presence of legislation, such as the Equality Act 2010, women still struggle for equality in the work-place. Still don’t believe me? Just ask the female employees of City of Glasgow Council who had to fight tooth and nail to achieve equal pay earlier this year.

A link to a press release from the Young Women’s Trust can be found below:

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/987_two_in_five_female_bosses_say_their_workplace_is_sexist

A link to an article in The Independent about the Trust’s research can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.200619/data/8965916/index.html

CopyrighSeán J Crossan, 20 June 2019

Don’t do it!

george-pagan-iii-624417-unsplash.jpg

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:


https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.

Copyright Seán J Crossan, 17 & 26 May and 17 August 2019

The Gender Pay Gap

Photo by Suad Kamardeen on Unsplash

According to data released by the UK Government’s Equalities Office, the gender pay gap is still depressingly wide in 2019. Yes, this is depressing given the fact that, nearly 50 years ago, the Equal Pay Act 1970 was passed into law (although it wasn’t brought into force until 1975). The law on equal pay is now, of course, contained in the Equality Act 2010. It is also an area which has also been heavily influenced by EU Law.

Saturday 30 March 2019 was the final date for public sector organisations (employing over 250 people) to submit data on their gender pay gap to the UK Government. Private companies have until 4 April 2019 to submit this information. Thousands of organisations have left this to the last minute or failed to submit the information at all.

The gender pay gap problem is particularly acute in the UK university sector as the BBC reported today:

Big university Gender Pay gap revealed

https://www.bbc.co.uk/news/business-47723950

The BBC article contains a useful link allowing employees to calculate the pay gap at their organisation.

On Friday 29 March 2019, The Guardian reported that the gender pay gap amongst male and female graduates is widening (so not a positive picture overall):

Graduate gender pay gap is widening, official figures reveal

https://www.theguardian.com/education/2019/mar/29/graduate-gender-pay-gap-is-widening-official-figures-reveal

Copyright Seán J Crossan, 30 March 2019

Born leaders?

Photo by Brooke Lark on Unsplash

International Women’s Day

As today is International Women’s Day (Friday 8 March 2019), I thought I would discuss the serious problem of the lack of females in senior management positions in many organisations.

I use the words ‘serious problem’ quite deliberately because the lack of women in senior positions means that many employers are ignoring (either deliberately or unconsciously) a vast reservoir of skill and talent.

Yes, astonishingly, in 2019 it would seem that the ‘glass ceiling’ is still firmly in place. The phrase ‘glass ceiling’ was first used in 1978 by Marilyn Loden, an American management consultant and encapsulated the frustrating (and all too painful) situation that many competent women have experienced in the work-place. They can see all the way to the top of the career ladder, but somewhere on the way up they will hit an invisible barrier or obstacle which will prevent them from progressing further. In an interview with the BBC in 2017, Loden opined that the phrase was still as relevant as it had been in 1978:

100 Women: ‘Why I invented the glass ceiling phrase’

Workplace consultant Marilyn Loden coined the phrase “the glass ceiling” 39 years ago but says it is still as relevant as ever.

The view from the Institute of Directors and Cranfield School of Management

Charlotte Valeur, Chief Executive of the UK Institute of Directors (IoD), has been more direct about this problem. In an interview with The Guardian, to coincide with International Women’s Day, Ms Valeur bluntly accused FTSE companies of “lying” when they claimed that they found it difficult to recruit enough females or ethnic minority candidates to serve on boards of directors:

“Do we really think that’s difficult? It’s a lie. It’s not difficult. … I will be very unpopular with FTSE 100 [companies], but I don’t actually mind, because it’s not true that it’s difficult.”

Interestingly, Ms Valeur goes on to say that she would campaign for new laws to promote diversity unless UK based organisations started to take the problem of the lack of women in boardrooms seriously. In Ms Valeur’s opinion the current equality laws do not seem to be fulfilling their intended objectives.

A link to the article in The Guardian containing the interview with Ms Valeur can be found below:

https://www.theguardian.com/world/2019/mar/08/exclusive-iod-chair-charlotte-valeur-firms-lying-about-appointing-women-improve-diversity

Valeur’s analysis appears to be borne out by recent research carried out by Cranfield School of Business as part of its annual Female FTSE Index for 2018. The Report appears to show that the numbers of women in CEO roles in FTSE 100 companies has “remained static” and, in FTSE 250 companies, the numbers have “declined sharply”:

https://www.cranfield.ac.uk/som/expertise/changing-world-of-work/gender-and-leadership/female-ftse-index

Legislative intervention

Historically, women have faced very real obstacles which have actively undermined their chances of advancement and promotion in the work-place. They have simply not been valued in comparison with their male colleagues. Gender or sex discrimination has also manifested itself in unequal pay, pregnancy and maternity discrimination and harassment.

Despite decades of legislative intervention to combat sex discrimination, we still hear about depressing stories such as the one below:

Maternity discrimination: ‘Having a baby cost me my job’

Sarah Rees, who was made redundant while on maternity leave, is calling for changes.

Somewhat depressingly, the Trades Union Congress (TUC) “published analysis this week that showed there is a 17.9 per cent difference in the amount men and women typically earn”:

https://edition.independent.co.uk/editions/uk.co.independent.issue.090319/data/8814226/index.html

Many women working for City of Glasgow Council will be well aware of this having just settled a massive equal pay claim in January/February 2019.

Admittedly, over the last 40 years or so, the UK Parliament has attempted to address (and redress) the issue of sex discrimination generally by passing domestic legislation (e.g. the Equal Pay Act 1970, the Sex Discrimination Act 1975 and, most recently, the Equality Act 2010); and by implementing EU legislation (e.g. Equal Treatment Directives, Equal Pay Directives and the Part-time Workers’ Directive). And yet, despite all of these measures (and more), the question which still needs to be asked is why sex discrimination in the work-place is still so prevalent?

Positive discrimination?

In a previous post published on 28 February 2019 (The force is not with you …), I discussed the issue of positive discrimination. Could positive discrimination be a way forward to break the male stranglehold on senior management positions? This may seem like a solution but, as we have seen, this is an area not without its share of legal complexity.

Limited positive discrimination seems to be permitted in the UK and the EU when you have a number of diverse candidates (e.g. gender, race etc) who possess similar academic/vocational qualifications and/or experience. It may be permissible to appoint a suitably qualified woman over a similarly qualified male candidate if the employer can show that this is objectively justified i.e. it is a genuine attempt to promote diversity. That said, attempts to introduce positive discrimination have been subject to legal challenge e.g. Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116 or outright hostility e.g opposition to the 50/50 recruitment policy for the Police Service of Northern Ireland.

Furthermore, there can be enduring cultural stereotypes centring around the positive discrimination, namely, that the preferred candidate got the job merely because they ticked the necessary boxes (e.g. age, gender, race etc) required to fill a quota. Whether this is true or not, it can make beneficiaries of positive discrimination uneasy that they will be judged not on their ability and skill, but on the basis of their attributes or characteristics.

Blind recruitment?

Blind recruitment is becoming popular with many organisations. Following the publication of the Bridge Group Report in 2016, the UK senior civil service and the NHS committed themselves to this form of recruitment.

A link to the Bridge Group Report can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/497341/BG_REPORT_FINAL_PUBLISH_TO_RM__1_.pdf

What does it involve?

Basically, the personal data of candidates such as age, educational establishment, disability, gender and ethnicity/nationality/race are not revealed to the recruiter. The theory is that suitable candidates will be selected on the basis of academic/vocational qualifications, experience and skills alone. Theoretically, this should assist more women (and individuals from minority) groups to break through the ‘glass ceiling’ and secure promotion at more, senior management level.

A link to an article about ‘blind recruitment’ can be found below:

https://www.ciphr.com/features/what-is-blind-recruitment/

The Incompetent Male Leader

Why is it that so many incompetent managers are men asks Tomas Chamorro-Premuzic?

Chamorro-Premuzic is a Professor of Business Psychology at University College London and Columbia University, New York.

Well, a major reason could be the reliance on the traditional interview method for recruitment selection. It would seem that men are better at promoting themselves in this forum than women and men tend to emphasise ‘virtues’ which demonstrate their supposed leadership calibre e.g. assertiveness, decisiveness and toughness. Chamorro-Premuzic argues that many of these qualities are vastly overrated by recruiters. Additionally, he asserts that many male leaders and managers suffer from delusions of grandeur and lack of technical expertise.  The solution to the problem of the lack of women in senior positions is greater use of psychometric testing.

A link to an article about Tomas Chamorro-Premuzic’s comments can be found below on the BBC website:

How incompetent men get ahead

Why Do So Many Incompetent Men Become Leaders? Tomas Chamorro-Premuzic’s book has a provocative title but what’s the answer?

Conclusion

The purpose of this article was to highlight the fact that, in 2019, women are still woefully under-represented in senior positions in many UK based organisations. If we look at statistics supplied by Cranfield School of Business, the overall picture is not encouraging. The phrase the ‘glass ceiling’ (first used in 1978) seems to be as relevant as ever.

Suggested solutions include positive discrimination and more psychometric testing. More inventive solutions can seem attractive, but a word of warning: some years ago Amazon attempted to develop a recruitment tool using artificial intelligence (AI). The road to hell, however, is paved with good intentions: to the dismay of Amazon executives, the AI system was found to be discriminating against female candidates! Back to the drawing board it would seem …

A link to the story about Amazon’s well meaning, but ultimately doomed attempt to attract more female candidates into tech jobs can be found below:

https://www.theguardian.com/technology/2018/oct/10/amazon-hiring-ai-gender-bias-recruiting-engine

Copyright – Seán J Crossan, 8 March 2019