4.1 Redress for victims and witnesses of discrimination

If you are a victim or a witness of discrimination, victimisation and harassment, there are opportunities for redress. Under the Equality Act, the Equality and Human Rights Commission offer various services, including a helpline and advice service, a legal support scheme, enforcement powers, and pre-enforcement interventions. The Equality and Human Rights Commission and court services are potentially available to you if you are a victim of discrimination, harassment, and victimisation under any protected characteristics. Working through your trade union is possible if you think your rights have been compromised.

The equality legislation provides opportunities to challenge corporate power if you feel that you are being discriminated against, harassed, or victimised at work because you have one or many protected characteristics. The same applies if you experience discrimination, harassment or victimisation when accessing business services.

Activity 3 Supporting victims of discrimination, harassment and victimisation in the workplace or community

Timing: Allow around 20 minutes for this activity

As you watch the video, draw up a list of what you as a leader can do to support colleagues in the community and/or workplace if they are victims of discrimination (direct, indirect, by association, by perception), harassment or intimidation. After, write a note to a hypothetical line manager at work or a leader in the community who fails to notice and/or deal with a situation where a person with protected characteristics is discriminated against.

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Transcript: Video 2 The State’s obligations relating to discrimination

NARRATOR

What are State’s obligations relating to discrimination? The state’s first duty is that it should not itself when providing for human rights, discriminate against persons on the grounds listed, namely race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

Under the Apartheid system in South Africa, there was a system of institutionalised racial segregation and discrimination. There were separate public services, such as toilets, parks, and beaches. The second obligation of a state is that it must protect individuals against discrimination in the private sphere on the grounds listed. For example, in Northern Ireland, the owners of a private bakery refused because of their religious beliefs to provide a cake with images supporting gay marriage. The court held that this was prohibited discrimination on grounds of sexual orientation.

Thirdly, when certain groups have traditionally or historically been subjected to discrimination, states can undertake special measures or affirmative action in favor of the discriminated group. Some human rights treaties have made express provision for this so that it is not considered to be discriminatory.

Examples of such special measures or affirmative action might be quotas for underrepresented groups, job advertisements that state that applications from underrepresented groups are particularly welcome, lower admission standards from underrepresented groups, or rules that if two candidates are equally meritorious, then preference can be given to a candidate from an underrepresented group. We now need to consider the concept of equal treatment and within that the, ideas of direct and indirect discrimination.

In terms of equal treatment, individuals have a right to be treated equally. However, this is not an obligation to treat everyone in exactly the same way, regardless of differences in situation, needs, or capacities. So for example, a football club can choose the best football players, but it should not choose the best football players from only one race or from one religion.

Secondly, equal treatment involves a prohibition on treating people in an unfavorable manner on the basis of characteristics of theirs that leave them exposed to prejudice or abuse. In simple terms, individuals should be judged on their merits and capacities, not on the basis of prejudices against them. The list of non-discrimination characteristics is not a fixed one, it inevitably changes over time, taking account of social developments. It includes race, sex, nationality, color, ethnicity, property, birth, and social status. More recently, it has come to embrace age and disability.

In some states, it has been extended to cover sexual orientation discrimination. However, this is not acceptable to all states. Discrimination can be considered to have occurred when it was either specifically intended, namely direct discrimination or when it is the outcome of an action that had another purpose but which has the effect of discriminating, namely indirect discrimination. Both forms are prohibited in international law.

An example of direct discrimination would be where the director of a company states that it will only employ men because women take too much time off to have babies. That is direct discrimination against women. The concept of indirect discrimination is more complicated because on the face of it, the rules are the same for everyone. So a requirement that all police personnel be 1.68 meters tall is a general rule that can be applied equally. However, because the average man is taller than 1.68 meters while the average woman is smaller, the rule is in its effects, discriminatory against women.

Finally, what makes the issue of discrimination complicated and controversial is that not all differentiation of treatment are prohibited. As the Human Rights Committee observed in one of its general comments, not every differentiation of treatment will constitute discrimination if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose, which is legitimate under the covenant.

Social evolution and standards will obviously affect what is considered as reasonable and objective. In addition, reasonable people may also disagree on what they consider to be reasonable and objective.

End transcript: Video 2 The State’s obligations relating to discrimination

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Video 2 The State’s obligations relating to discrimination

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Comment

There are many actions that you can consider as a leader in the community or at work if you see a colleague experiencing discrimination, harassment, or intimidation. Here are some actions, but the list is not exhaustive. Your actions may include the following:

• Taking notes of what you witnessed (including time, those present, how the incident started, and how it ended).
• Reassuring the victim that they are not alone.
• Reminding the perpetrators of the company or community’s equality, diversity, inclusion, and access policies and procedures.
• Reporting what you witnessed to the relevant authority.
• Whistleblowing or speaking to the confidential recipient of anonymous complaints.

The biggest challenge with discrimination is that victims sometimes internalise discrimination and live with it, which significantly negatively impacts victims and witnesses. As civil rights, leader Martin Luther King Jr. said, ‘The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people’.

As a leader, you are expected to pick sides. Witnessing discrimination, harassment, victimisation, and doing nothing speaks volumes about the silent witness. There are intervention mechanisms and support tools available if only you look out for them. What will the future you say about what you did when you witnessed discrimination?