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Indirect Discrimination in the Workplace: How to Identify and Prevent It

2022-05-30
Indirect Discrimination in the Workplace: How to Identify and Prevent It

Many managers are familiar with the concept of direct discrimination – when an employee is treated differently because of a protected characteristic, such as race or sex. However, they may not be aware of the concept of indirect discrimination, which can also be very harmful to employees. In this article, we will discuss what indirect discrimination is, and how you can identify and prevent it in your workplace.

What Are the Forms of Workplace Discrimination?

Within the workplace, discrimination can happen in unique, unexpected, and sometimes unintentional ways.

We can categorize direct (or purposeful) discrimination as either victimization, harassment, or more broadly, intentional discrimination. Other, more subtle forms can include unintentional discrimination, systematic discrimination, reverse discrimination, and of course, indirect discrimination.

These terms can be quite confusing at first but it is important that we draw distinctions in order to get an understanding of this complex issue.

Visit our blog post to learn more about Different Forms of Discrimination in the Workplace.

What Is Indirect Discrimination in the Workplace?

Indirect discrimination occurs when a workplace policy or rule puts a particular group of people at a disadvantage. For example, if a company requires all employees to work full-time, this may indirectly discriminate against women who have childcare responsibilities.

Indirect discrimination can be harder to spot than direct discrimination. However, it is just as unlawful and can have a negative impact on those who are affected by it.

How Can Indirect Discrimination Occur in the Workplace

Rules and systems are at the core of indirect discrimination, which is why it can be so tricky to affect change. Here are some reasons many people are still indirectly discriminated against:

  • Lack of awareness. Lack of diversity education can lead to workplace practices that unintentionally discriminate against employees or job applicants. If a company's leaders are not aware of diversity-related issues, they are unable to implement strategies to counteract discrimination.
  • Systemic prejudice. In the UK, US, and much of the western world, certain prejudices have become ingrained over centuries. These prejudices affect the psychology of everyone within a culture unless they are actively educated, or they make the conscious decision to fight back against them. Systemic prejudice affects the way we view others with certain protected characteristics. It is often present within the subconscious mind, so a boss may feel they are fair to everyone but not realise that they are actually upholding certain structures of inequality.
  • Financial gain. Often, systems are put into place in order to maximise profits. Because this is often the aim, rather than to exclude people from a certain group, the institution that implements them may have a blind spot over the damaging effects of the policies.
  • Lack of flexibility. Certain CEOs or company directors have more traditional, conservative values that can stand in the way of adapting company policy for a modern workforce. This can be due to conserving the features of a very old company, but it can also occur due to the individual tendencies of the person in charge.

Examples of Indirect Discrimination in the Workplace

Indirect discrimination can occur in the workplace when an apparently neutral practise puts people of a particular group at a disadvantage. This can mean disadvantaging certain staff members due to personal time constraints, disability, religion, or any other protected characteristics. Here we give some indirect discrimination examples.

Dress Code

Strict or disproportional dress codes can disadvantage certain staff members for a number of reasons. For example, if a job requires staff to wear business attire, this may exclude people who cannot afford to buy such clothing. Overtly feminized female uniforms (such as expecting air hostesses to wear heels) can cause discomfort to female staff, as well as require extra time and money to meet the requirements in contrast with male staff.

Physical Appearance

Some workplaces indirectly discriminate against employees by having staff requirements about physical appearance. For example, these types of policies can inflict unfair treatment on women, who are often held to higher standards of appearance than men. Similarly, if a job requires employees to have a certain hairstyle or facial hair, this may exclude people from certain cultural groups.

If a workplace requires employees to have a certain physical appearance, they should make an effort to ensure that the policy is fair and inclusive. Otherwise, they may be inadvertently discriminating against some of their most qualified and capable workers.

Scheduling

Indirect religious discrimination can occur when an employer has a policy, practice, or procedure that makes it difficult to conform to religious practices. This includes things like not providing enough flexible working options which would indirectly discriminate against employees whose religion means they cannot work certain hours. Inflexible scheduling can also be a form of indirect sex discrimination as women are statistically more likely to be responsible for childcare.

Promotion

One form of indirect discrimination is when an employer uses subjective criteria to make promotion decisions. For example, a company may only promote employees who are "presentable" or "confident". While these terms may seem neutral, they are often used to exclude marginalized groups such as people of color, women, and disabled people. This is because these criteria are often based on harmful stereotypes about groups that are not white, male, and middle-class. This can be frustrating for employees who are passed over for a promotion and send a negative message to others with the same protected characteristic. As a result, indirect discrimination can have a significant impact on employee morale and retention. Additionally, it can lead to legal action under the Equality Act.

What Is the Difference Between Direct and Indirect Discrimination in the Workplace?

Direct discrimination in the workplace is when a colleague or boss treats an employee or job applicant less favorably because of a protected characteristic. For example, if an employer refuses to interview someone because they are from a particular racial group.

Indirect discrimination is where an employer imposes conditions or requirements that employees of a particular protected characteristic are less likely to be able to comply with. For example, if an employer only recruits people who have experience in a certain software program and the only way to gain this experience is through paid work, then indirect discrimination may have occurred.

How To Prevent Indirect Discrimination at Work

Indirect discrimination is often difficult to justify and employers should take care to avoid it where possible. Below are some steps that employers can take to prevent this type of discrimination at work:

  • Education. Managers and other policymakers within the company should first aim to educate themselves on issues relating to direct or indirect discrimination in order to fully understand what they are targeting. They can familiarize themselves with important terms such as "indirect racial discrimination" as well as understand relevant employment law surrounding the issues.
  • Review employment policies and practices. Identify any areas that may indirectly discriminate against particular groups of employees. This should include thoroughly researching indirect discrimination in order to get a picture of how a company can transform its practices.
  • Ask for feedback. Consult with employees and employee representatives about the impact of policies and practices on different groups of employees. This can be implemented through focus groups or one-on-one meetings with staff.
  • Affect change. Make changes to policies and practices where necessary to avoid indirect discrimination.
  • Stay on the ball. Monitor the ongoing impact of policies and practices on different groups of employees to ensure that they are not being adversely affected. Companies can utilize HR software to gather data on how policies impact employees over the lifetime of their employment.

How To Deal With Indirect Discrimination at Work

Indirect discrimination due to protected characteristics can slip under the radar unless it is actively reported and evidenced. However, there are many avenues a person can go down to get justice if they feel this has occurred.

  • Speak to your employer. If you believe that you have been the victim of indirect discrimination at work, there are a number of options available to you. You may wish to raise the matter with your employer directly, in order to try and resolve the issue informally. Similarly, it may be helpful to reach out to the HR team if there is one.
  • Seek advice. In the UK, the Equality and Human Rights Commission offers free advice for those who feel they have experienced unfair treatment as an employee. It can also be helpful to consult with a lawyer if the situation may need to be taken up legally.
  • Take legal action. The Equality Act classes indirect discrimination as a breach of rights of a person due to them having at least one of the nine protected characteristics. In order to take legal action, a person may need to ensure they can evidence ways that a policy negatively impacts them in this way. For this reason, it is always advisable to go through legal proceedings with adequate counsel from an advisor or a lawyer.

Frequently Asked Questions

What Is Classed As Indirect Discrimination?

To summarise, indirect discrimination means any procedure or policy that has an adverse effect on those with protected characteristics.

How Do You Prove Indirect Discrimination?

To make successful discrimination claims, employees can call upon common knowledge to show how disproportionately certain policies affect them. For example, Jewish people would be disadvantaged in cases where employees are required to work on the sabbath. It can also help to build a claim if the employee has proof that they have already attempted to resolve the issue with a line manager or other member of staff in a higher position, as this evidences that the company is unwilling to take steps to prevent discrimination.