July 15th, 2009 at 03:01am
Under Uncategorized
SEXUAL PREJUDICE AND HARASSMENT, GENDER EQUALITY AND OPPORTUNITIES –AND WORKPLACE SEX DISCRIMINATION(Based on author’s site www.geocities.com/sxdsc)
Legislation which, except in specific exceptional circumstances, prohibit discriminating against one on the ground of one’s sex is not limited to but most often becomes involved in relation to or in the course employment, in, e.g., recruitment, job selection, terms and conditions of employment, training and promotion, and pay -including in the form of fringe benefits and redundancy pay and pensions.
In law, discrimination can be direct or indirect -or as harassment or victimization.
The law expects employers to have specific policies to ensure in all respects non-discriminatory treatment of all their employees of either gender or transgender -whether male or female and regardless of the marital status of men or women in their employ, and neglect or recklessness by the employer may make in law the employers (including vicariously) liable for sex discrimination or sexual harassment.
Sex discrimination is, simply, subjecting to less favourable treatment a person because of that person’s sex -because the person is boy or girl, is a man or a woman (including, in the case of female persons, whether pregnant, expecting, or with a baby or children as covered by the equality and employment legislation, and also male persons in relation to paternity leave), or because of that person’s marital status -because that the person is married or single -mostly applicable to married women.
It is also unlawful sex discrimination if on the ground of one’s sex one is not paid equally for what the law calls ‘equal work’ ~which is not necessarily same work but also is work of equal value -in other words such work that is like work or work which cannot be argued in law reasonably not to be work that is rated as being equivalent work (Hayward -v- Canwell Laird Shipyards 1988).
‘Pay’ in the European Union in Article 119 of the Treaty of Rome is defined this as being the ordinary, basic, or minimum wage or salary or any other consideration, whether in cash or kind, which the worker receives, directly or indirectly, in respect of his [or her] employment from [the] employer -including any benefit involved in relation to after the employment ends ~such as concessions in respect of travel benefits following retirement (Garland -v- British Rail Engineering 1982) and early-retirement pension (Barber -v- Royal Exchange Assurance Groups 1990).
Sex discrimination can be ‘direct’, or ‘indirect’.
Direct sex discrimination would be, for example, if one is refused employment on the ground that the job traditionally is regarded as being ‘a man’s job’ or as being ‘a woman’s job’ (Baksha -v- Say 1977).
Indirect sex discrimination is by way of a requirement which without reasonable justification can not be or can less be met by the other sex ~for example if a job advertisement said that the position advertised persons of either sex could apply but unjustifiably stated that hand-bags or purses were not allowed to work or must wear perfume -in England under European Union Law’s definitions it was held that it was unlawful discrimination that in government employment the age limit for appointment to executive officer grade was 28 since many women in their 20s planned or had babies to look after (Price -v- Civil Service Commission 1978).
It is equally unlawful sex discrimination to segregate male and female sexes without reasonable justification in places of work, as it is also to victimize one because of applicable e.g. feminism or feminist activity or if is known or suspected to have made or be intending to make an allegation of having been subjected to sex discrimination or sexual harassment.
Sexual harassment at work sometimes may also be a criminal offence ~in Europe the EU Code of Practice defined it as being unwanted conduct of a sexual nature or other conduct based on sex affecting the dignity of a woman [or a man] at work -it is a detriment on the ground of one’s gender (it was unlawful for example for two male employees to have made frequently remarks which were suggestive to one of their female colleagues and to have brushed against her deliberately causing such unpleasantness as to have necessitated her requesting to be transferred to another post -Porcelli -v- Strathclyde Regional District Council 1980).
In Europe the member states of the European Union must have an Equal Opportunities Commission or its equivalent to regulate these under e.g. the Sex Discrimination Act 1975 (supplemented by the Equal Pay Act, Maternity and Parental Leave Regulations, Maternity and Paternity (Amendment) Regulations, EE (Sexual Orientation) Regulations -and in the Employment Rights Act and the Employment Relations Act).
The Equal Opportunities Commission must also to provide information and assistance -including legal representation subject to meeting specified criteria, to persons who wish to complain to a county court, or in the case of trainees or employees to an employment tribunal.
The complaints process includes, if the person alleging discrimination so chooses, serving a questionnaire on the alleged discriminator -requiring to related questions written answers ~it may be used in evidence and inference be drawn from failure to respond or vague or ambiguous answers.
The person alleging discrimination may be, up to limits specified by law, in the case of the industrial / employment tribunals, ordered to pay costs, if the allegation proves to be unreasonably groundless, frivolous, or vexatious, and whereas financial remedy in respect of other matters is limited to a maximum, following a European Court of Justice confirmation there is, at the discretion of the tribunal, no limit on the amount of compensation which may be awarded for injury to feelings arising from sex discrimination in the workplace.
It is not unlawful sex discrimination, though, to discriminate in life or accident insurance risk assessment for employees fringe benefits justifiable by statistics, or in competitive sport if strength or stamina or physique matters -nor is it sex discrimination in employment if discrimination relates to, e.g., unadvertised managing of premises partly in one’s or relatives’ occupation, voluntary non-profit bodies or charities insignificant to other sex or statutory single sex colleges, or facilities which may embarrass men or women or would offend significantly a religion on grounds or privacy and decency.
Sex discrimination may be perfectly lawfully practised by employers, if there is an imbalance of male and female employees, without the dismissal of any by recruiting specifically from one sex alone, and in such cases as of necessity only from one particular sex must be recruited ~for example as in the case of a movie company’s advertising Edgar Rice Borough’s ‘Tarzan’ specifically for a male person or for his ‘Jane’ auditioning only female persons -or, e.g., in the case of a modelling agency employing as a fashion model only persons of one sex for modelling wear for that sex only.
Sex discrimination laws may vary in detail among countries that have such legislation, and in the European Union they are more or less uniform -in the case of allegations of discrimination in education in England (whether one does or not settle through the Advisory Conciliation and Arbitration Service -ACAS) with a requirement within a specified time before taking legal action to inform the secretary of state for education.(Laws change –always ascertain current law)The author has a website at: http://www.geocities.com/eoa_uk
July 14th, 2009 at 09:02pm
Under Uncategorized
DICSCRIMINATON AND RELATED RIGHTS IN THE WORKPLACE(Based on author’s site www.geocities.com/rcsxp)
Equal opportunities workplace discrimination in sex discrimination cover sexual orientation, same-sex prejudice, adoption, paternity, maternity, parental, dependant leave, marital status, equal pay; race relations employment discrimination ethnic relations, religious discrimination, nationality, citizenship; discriminatory practices, disability discrimination.
Sex equality, race relations, disability work rights in employment discrimination laws are:-A. It is employment discrimination contrary to nondiscrimination policy, unlawful prejudice, to treat employees e.g. working women, colored, foreign workers less favorably than others ~this is the basis of equal opportunities, nondiscrimination laws, in workplace discrimination, be it gender equality, racial equality, disability rights in employment -applying employment discrimination rights is illegal.B. It is illegal workplace victimization to penalize one for complaining or inquiring about or doing anything in good faith in relation to employment discrimination -be it about discriminatory practices of e.g. gender prejudice or sexual orientation or ethnic relations, even if there has not been, and even if the employer retaliation is not itself employment discrimination ~causing detriment after employment ends also is employment discrimination.
Important details of employment discrimination are:-Equal Opportunities are not minority rights, or women’s rights only ~it is equally illegal employment discrimination for e.g. black or women employers to subject to racial inequality or gender discrimination or sexual harassment a white an employee -in ethnic relations it is employment discrimination whether the employer belongs to a dominant majority group or a minority group.Lawful prejudice is possible: in employment discrimination, whether it is race relations, ethnic relations, or sex equality, employers are entitled to employment discrimination in recruitment by preferring a particular racial or ethnic or gender or sexual orientation class to ensure fair gender equality or racial equality respecting nondiscrimination policy ~non-employment of the disabled is legal employment discrimination if workers are less than 20 -or if a legal musts, e.g. safety helmet for Sigh bike messenger.Segregation, racial or ethnic, is not unlawful employment discrimination if genuinely otherwise it would disrupt ~in gender equality it is not illegal employment discrimination but lawful discriminatory practice to provide separate one-sex facilities to avoid embarrassment -it is also legal employment discrimination if it would offend a sizable faith.
Otherwise racial segregation can make liable in employment discrimination as race discrimination -if it arises from an employment discrimination complaint, additionally, also as employment victimization.Employment victimization if is due to, e.g., gender prejudice, an employment discrimination complaint must have preceded it – Negorajam -v- Agnew, 1994.Workplace harassment, be it sexual, religious or belief, ethnic or racial harassment, is more than employment discrimination -it can be, additionally to employment discrimination, a criminal offence ~also if it is only employment discrimination and on its own not of criminal nature, if persisted in, in employment or after termination.
Sex harassment or racist abuse by a colleague is not workplace harassment as employment discrimination if not in course of or at place of work nor related to work -action lies in equal opportunities but not as employment discrimination.
Workplace harassment, e.g., sexual harassment, is required in employment discrimination case-law to be shown to have adversely affected one’s dignity – Porcelli -v- Stratchlyde Rural District Council, 1980.Religious or Belief Discrimination it is in equal opportunities and employment discrimination, because of one’s religion or belief, to apply a condition on the assumption that a law would not be respected -e.g. an undertaking that Sigh builders would wear helmets at all times, or that a Sigh judge would wear instead of his turban the wig worn in British courts of law. Degrading treatment (which the above would also be) in employment discrimination under the race relations legislation (racial victimization -or religious, ethnic, color, nationality, citizenship) takes into account what the complainant considers to be degrading.Age Discrimination may also be complained of, if employee or candidate may is refused employment because of his or her age, or in employment if is less favourably treated or subjected to victimization. Disability discrimination while it is, in employment discrimination legislation, to not provide some 30% disability work for disabled employees in a workforce of 20 or more -with appropriate work and equipment and workplace adjustments, disability discrimination is subject to employment discrimination precedent and the courts may regard an employer’s failure in special interviewing arrangements not a discriminatory practice amounting to employment discrimination but failure of the disabled job applicant, even if the special arrangements need was stated on the application and details were never asked, if disabled persons fail to specify them .
Disability discrimination is legal if the workforce is less than 15 ~also if of indirect effect on disabled workers -it is employment discrimination only if it affects directly.
Disabilities do not entitle to equal rights or disability rights in disability employment discrimination unless for a year seriously disabled in ordinary daily activities -else it is not employment discrimination.Genuine occupational qualification excuses employment discrimination -in equal opportunities employment rights it is a genuine occupational qualification is one that does not unjustly disqualify an entire class of, e.g., female workers or married women employees, or staff transsexual or of a different sexual orientation, or alien workers ~in employment discrimination such proof is on the employer in sex or race discrimination claims – Panesaar -v- Nestle 1980.Grading of employees vulnerable to employment discrimination -e.g. of working women or black or immigrant workers, may be complained of as employment discrimination ~employer must show that were not taken into account personal factors, e.g. a working woman likely to take maternity leave or a single parent working girl, in assessing – National Vulcan Engineering -v- Wade, 1977.Maternity leave, paternity or parental or adoption or dependant leave, in employment discrimination laws are for all -married, partner, or neither ~if it is agreed contractually, employment discrimination laws forbid employers to prefer the contractual or the statutory entitlement -in equal opportunities applicable to employment discrimination employees choose which.Comparison must be made if one is directly subjected to employment discrimination to show that employment discrimination to have been by way of less favorable treatment of the complainant than other workers – Aziz -v- Trinity Taxis, 1998.Less favorable treatment complained of as employment discrimination must have taken place at the workplace or must be in relation to employment, otherwise it is not employment discrimination ~in ethnic relations, e.g., employer’s excluding from a house-warming party is not equal opportunities race equality breach of nondiscrimination policy -but it is employment discrimination if from a workers’ office party – Walters -v- Metropolitan Police, 1997.Equal pay if the employment discrimination has been in respect of, it is inessential for comparison to be of identical work -in employment discrimination precedent similar work suffices, e.g., a single working girl’s work and a married working woman’s like work – Hayward -v- Canwell Laird Shipyards, 1977.Internal Appeal offer in employment discrimination must precede worker’s dismissal, if made – James -v- Waltham Holy Cross Urban District Council, 1973.Claims for employment discrimination or, e.g., sexual harassment or color victimization must allege so -if the worker only claims only unfair dismissal the qualifying period may bar an, e.g., race equality employment discrimination case exempt from the qualifying period requirements – British Airways Engine Overhaul -v- Francis, 1981.Qualifying period for suing does not apply to employment discrimination and workplace harassment -no particular length of service need be shown to sue for employment discrimination ~also so in equal opportunities workplace victimization.Time limit does apply -in employment discrimination legal proceedings must be commenced within three months of the equal opportunities breach or of when the employment discrimination, or the employment discrimination victimization, became known – Cornelius -v- University College -Swansea 1987.Questionnaires are part of equal opportunities claims in employment discrimination whether sex discrimination, color prejudice, workplace harassment, or employment victimization ~one may serve one on the employer and use answers or non-reply in arguing employment discrimination.Amendments may be allowed by employment tribunals to employment discrimination complaints, only if are about a matter included in the in employment discrimination particulars – Swiss Life & Health Insurance -v- Kay, 2004.Additional claims based on same employment discrimination also so – Ashworth Hospital -v- Liebling, 1996.Onus of proof in employment discrimination is the complainant’s on a balance of probabilities ~regard to employer’s reasons for the alleged employment discrimination can reverse that – Humphrey’s -v- Board of Management of St. George’s School, 1978.
The European Court of Justice has ruled in employment discrimination cases that there is no limit on what may be awarded for injury to feelings in claims arising from workplace discrimination.
Costs may be involved if a party, including the complainant, has been vexatious, frivolous, or “otherwise unreasonable” –normally, in the course of or in relation to the proceedings.
Laws change; these are brief guidelines.The author has a website at: http://www.geocities.com/eoa_uk