#BTColumn – Discrimination in the workplace can be covert

Disclaimer: The views and opinions expressed by this author are their own and do not represent the official position of the Barbados TODAY Inc.

by Brittany Brathwaite

COVID- 19, vaccinations and a plethora of issues surrounding the pandemic and the general survivability of businesses have captured the minds of business owners, employers and employees for over a year now.

Amidst all that has occurred, we witnessed the proclamation of a critical piece of legislation in December 2020, namely the Employment (Prevention of Discrimination) Act.

This Act expressly prevents discrimination in an employment context in over fifteen (15) areas. Including sexual orientation, gender, family responsibility, age and physical features. Persons should not be misled however, by the title of Act, as its breadth provides protection not only to those who may currently be under a business’ employ. It also prevents discrimination in recruitment and selection; even where these functions are executed by recruitment agencies.

The crafting of job advertisements, job specifications and recruitment practices all fall within the ambit of the protection extended by the Act. Evaluating one’s system from recruitment to offboarding would therefore be a good first step towards guaranteeing adherence- at least in glaring areas of discrimination.

It is articulated within Section (3) of the legislation that an act of discrimination can occur, “directly or indirectly, whether intentionally or not, makes a distinction, creates an exclusion or shows a preference, the intent or effect of which is to subject the other person to any disadvantage, restriction or other detriment.”

This language is not far from the language we see within the Employment (Prevention of Sexual Harassment) Act, and one could argue that is provides ample scope for subjectivity in the matter of discerning whether Discrimination has or has not occurred.

For Employers, it therefore becomes imperative to create environments where there is zero tolerance for discrimination.

The minimum threshold for creating this and further, the management of claims/grievances at the domestic level, are outlined in the First Schedule of the Act. In this schedule, comprehensive guidance surrounding the requirement of a policy statement is provided.

Beyond the policy statement however, the operationalisation of existing and new policies will be the true testament of “zero-tolerance” environments. Employees should be trained and confirm understanding around what is and is NOT accepted.

Either as banter or outright discriminatory comments, jokes or behaviour in the organisational context. For example, how would your current policy structure treat to an employee who chooses at this point to identify as a different gender? Are your recruitment practices excluding individuals from specific demographics indirectly? Good food for thought when evaluating the reality of discrimination.

Genuine Occupation Requirements

Employers are encouraged to thoroughly evaluate Part III of the legislation, which outlines genuine occupational requirements (exceptions), that is, “A distinction made, exclusion created, or preference shown that shall not be taken to be discrimination where the reason for the distinction, exclusion or preference is the existence of a genuine occupational qualification.”

The Act further goes on to state, that a qualification is a genuine occupational qualification where it is an inherent requirement of a particular position.

It may not therefore be a genuine occupational requirement that one ought to be of a particular ethnic descent to cook a specific cuisine. However, requiring specific medical testing to operate in a food production area is and will continue to be a genuine occupational requirement.

Exceptions are outlined based on specific industries and the associated practices which may be exempted and deemed acceptable in recruitment, selection and employment practices.

Employers are therefore not expected to throw out the specific requirements based on the composition of their jobs – simply to re-evaluate at this juncture, what may not be genuine.

Is more required from the Act?

There are of course regulations which may lend to an easier application of the legislation and topics such as drug and alcohol testing which have not been tackled.

Nonetheless, with the promise of a Labour Code by the Honourable Minister of Labour and Social Partnership Relations, Colin Jordan, recently, I do anticipate that we will see some of these regulations forthcoming sooner rather than later.

Discrimination is not always bold and loud, neither is it always expressed in our policies. It can be covert and seeps out via our organisational culture, in the biases we promulgate. We therefore collectively, need to hold ourselves accountable and be our brother’s keeper, to ensure safe workspaces for everyone.

Brittany Brathwaite is president of the Human Resources Management Association of Barbados (HRMAB)