Understanding unintentional workplace discrimination and how to deal with it

A discrimination case that made headlines should serve as an important warning that even when seeming to act with good intent - it can still be unlawful.

Discrimination in the workplace is usually linked to clear and obvious acts of bias or prejudice.

There is another form of discrimination, which may be subtle, not blatant but just as detrimental: unintentional discrimination.

Unintentional discrimination occurs when individuals or organisations inadvertently treat certain groups unfairly due to unconscious biases, stereotypes or general factors.

Unlike deliberate discrimination, which is intentional, unintentional discrimination can occur as a result of unwitting attitudes or organisational practices.

Reports of a tribunal ruling indicate that offering a chair to an older colleague at work could now count as age discrimination.[1] cited 15.4.24

Being given the opportunity to sit while younger staff stand could lead to 'less favourable treatment'.

It means that any employer who offers a chair to elderly workers, rather than their younger peers, could be breaking equality laws as the older person could 'legitimately conclude' they were being treated 'disadvantageously'.

The ruling came after a 66-year-old recycling plan operative, sued his employer  after he was asked to sit down during his shift.

The employee believed his employers were trying to force him out and claimed he was being singled out as no-one else at the site used chairs.

Even when an act can be viewed as being done in good faith, it can amount to unintentional discrimination if it has the effect of treating someone less favourably because of a protected characteristic, even if there is no malicious intent.

ACAS describe discrimination as [2] cited 15.4.24

Treating someone ‘less favourably’ than someone else, because of:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

These are called 'protected characteristics'.

Less favourable treatment can be anything that puts someone with a protected characteristic at a disadvantage, compared to someone who does not have that characteristic.

There’s no legal definition of ‘putting someone at a disadvantage’. But it might include:

• Excluding someone from opportunities or benefits
• Making it harder for someone to do their job
• Causing someone emotional distress
• Causing someone financial loss

It can still be discrimination even if the less favourable treatment was not intended.

Unintentional discrimination may seem complex and like a minefield, as it can be challenging for employers to identify and address it.

It can often be excused or masked as something else, and be concealed or even accepted within an established workplace culture or its practices.

Typical justifications for this type of discrimination can vary and include lack of awareness, age and a generation gap or cultural differences.

One common example of unintentional discrimination in the workplace is the phenomenon known as the ‘glass ceiling’, the invisible barrier women and other marginalised groups may face when trying to reach higher levels of professional success [3] cited 15.4.24

Such barriers are not official company policy. Instead they are understood biases entrenched in organisational structures, which keep certain individuals from advancing into senior management positions, regardless of qualifications, knowledge and expertise.

Intent is an aggravating factor in discrimination, so when it appears unintentional the difficulty can be in establishing that it is wrong.

So, how should employers tackle unintentional discrimination in the workplace?

Training and awareness for employees on diversity and inclusion is essential as it can, and should, enable staff to recognise and address any unconscious biases.

Knowledge is key, and employers in creating a culture of awareness and accountability can empower employees to challenge any discriminatory attitudes and behaviours.

Workplace policies detail an organisation’s practices and procedures and can cover everything from day-to-day operational matters to compliance with employment legislation.

Putting in place and communicating to staff policies and practices that promote diversity and inclusion is key in preventing all forms of discrimination, both intentional and unintentional.

Such policies should cover everything from the start of the working relationship, and include fair recruitment and promotion processes, establishing transparent pay structures, and providing equal opportunities for career development and advancement.

One of the most high profile and widely reported issues that can be a sign of unintentional discrimination, is the ongoing challenge in ensuring that men and women receive equal pay for equal work.

Despite legislation such as the Equal Pay Act 1970 and the Equality Act 2010, there remains a gender pay gap, but it is decreasing.  Over the last decade it has fallen by approximately a quarter among full-time employees, and in April 2023 it stood at 7.7 per cent [4] cited 15.4.24

Individuals who believe they are not receiving equal pay can bring claims against their employers.

Employers may need to prove that any pay differences are not based on sex but on other legitimate factors.

Regulations introduced in 2017 require public, private and voluntary sector organisations, with 250 or more employees to report annually  on their gender pay gap [5] cited 15.4.24

Addressing any differences, in any type of work-related treatment of employees, helps to ensure compliance with the law and to promote equality in the workplace.

Tackling unintentional discrimination requires an all-round approach that involves raising awareness, putting in place appropriate and effective policies and practices and creating an inclusive organisational culture.

Employers who take positive and proactive measures to combat unconscious biases and general barriers, can create a fairer workplace and one which provides an equal opportunity for all employees to thrive.

Examples of unintentional discrimination

Subtle, often unintentional slights or comments can perpetuate stereotypes. For instance, automatically assuming that female employees should do any cleaning or tidying up in the office

Or if managers unconsciously favour employees who resemble themselves, e.g. same gender, ethnicity, or background, it can lead to unintentional discrimination in promotions.

And using specific language in job descriptions such as ‘must be energetic’ or ‘has to be dynamic’, could put off older applicants, unintentionally excluding them from the hiring process.

Impact of unintentional discrimination:

Experiencing any subtle biases can severely damage or completely destroy employee trust and morale, affecting an individual’s job satisfaction and commitment.

Any worker who faces inadvertent discrimination can struggle to perform at their very best as a result of the inevitable stress and reduced motivation that it can lead to.

It can also lead to a higher turnover rate of employees, especially among marginalised groups who may feel undervalued.

Dealing with a complaint

When an employer receives a complaint of unintentional discrimination, it should be taken seriously and dealt with without unreasonable delay. In summary some key steps employers should take in such a situation, include:

• Acknowledge receipt of the complaint and assure the employee it will be investigated thoroughly and fairly.

• If possible, try to resolve the matter informally.

• If an informal resolution is not possible or appropriate, follow any company policy e.g. grievance procedure or bullying and harassment policy.

• Carry out a comprehensive and impartial investigation into the complaint.

• Keep all parties informed throughout the process.

• Following the investigation take any necessary and appropriate action to address the findings.

• Review company policies and practices to ensure they are fair and do not inadvertently discriminate against any group.

• Keep detailed records of the complaint, the investigation process and outcome.

• Offer support to the complainant and anyone else affected by the situation.

Conclusion

Unintentional discrimination is serious, but it can be dealt with effectively and addressed.

Employers in raising awareness, putting in place fair practices that are communicated to all employees, and in creating an inclusive environment, can create workplaces where everyone feels valued and respected.

Combatting unintentional discrimination, and in fact all forms of discrimination unintentional or otherwise, does require ongoing effort and commitment.