When people think of harassment and discrimination, what often comes to mind is overt and deliberate behaviour. But in reality, most prejudice is either well-hidden or subconscious. That is why employers, and their employees, can often find themselves in difficult positions when words or phrases are used which might sound innocent at first, but which are – or could be perceived to be – discriminatory. Classic examples might be describing a woman as ‘bossy’, when a man would be called ‘assertive’; or saying that a team needs ‘fresh faces’, when the intention is to replace an older worker with someone younger.
The situation is made more precarious for employers under the Equality Act 2010, as an employer (and their employees) can be found to have harassed a victim not only if that was their purpose, but also if the relevant behaviour had the effect (regardless of the intention) of violating the victim’s dignity or creating an intimidation, hostile, degrading, humiliating or offensive environment for the victim.
The 'just banter' defence
A familiar defence of those accused of harassment is that what was said or done was ‘just a bit of banter’. The office clown might well put any complaints about him or her down to those ‘politically correct snowflake millennials’ (which might well have just given those same millennials their age-related harassment claim), but ‘banter’ is no defence to a harassment or discrimination claim.
What this highlights is a real challenge for employers: how to make sure they operate a workplace that people enjoy coming to and where people are not afraid to have fun and share a joke, without fostering an environment that tolerates (or worse, encourages) harassing behaviour, where the victim is made to feel at fault.
When good intentions go bad
With an increasing focus on diversity in the workplace, the issue of positive discrimination often arises. For example, if your workforce is predominantly white, you might question how you can bring about change by promoting or recruiting more non-white leaders.
The risk comes when those good intentions cross over to potential harassment or discrimination in the workplace. A phrase that has come to prominence recently is ‘male, pale and stale’, often used by well-intentioned people to describe organisations dominated by older white men, or in the context of explaining that an organisation has a diversity ‘problem’. While the phrase might sound snappy and neatly align with an organisation’s desire to become more diverse, it can hand those same older white men a harassment or discrimination claim on the basis of their sex, race and/or age.
Positive discrimination in the UK is unlawful, and employers need to be wary of their choice of language being used against them by employees who feel that they have been disadvantaged by such actions.
Most people have, at some point, said something that they either immediately regret, or look back on and cringe. With many organisations encouraging their staff to have open and honest conversations around diversity, there will be times where an employee inadvertently uses a term that a colleague finds offensive.
Often, a quiet word to explain why the word or phrase in question might not be appropriate is more than enough to defuse any potential acrimony. The real, and more material, danger for employers might be that employees are too scared to speak up and be part of the diversity and inclusion conversation, if they fear getting into trouble for using the wrong terminology.
Tips to minimise your legal risk
Employers should have up-to-date policies and procedures which make it clear that they do not tolerate discrimination or harassment, but which also give some of the less obvious examples of what might constitute discriminatory or harassing behaviour
Organisations should communicate clearly with staff, not only about the consequences of breaching policies, but also about how they can safely report discrimination and harassment
When thinking about diversity and inclusion (particularly in the context of decisions about pay and promotions), companies need to be careful not to positively discriminate in favour of one group, and any communications (whether with the media or internally) need to be carefully drafted to avoid such a perception.
Nick Marshall is a managing associate in Linklaters’ employment team. This article is based on a vlog by the Linklaters Employment and Incentives team