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Tuesday 9 January 2018

The effectiveness of legislation in tackling racial discrimination and prejudice in the workplace: insights from literature review

The issue of discrimination at work has been discussed at length in many forums with key stakeholders being the government agencies and the employees in the various organisations. Discrimination is an unpleasant experience for the victims who in most cases tend to be weak and vulnerable and this has prompted countries around the world to come up with legislation to counter it (Wrench, 2007). In the UK, the law prohibits discrimination on the basis of race, religion, sex, gender, disability, and others. The emphasis is to promote diversity and equality in the work place. Discrimination based on gender is perhaps one of the earliest forms of discrimination with many tending to doubt the potential of women to execute certain tasks (Wrench, 2007). However, remarkable achievements have been made in cutting down on the discrimination with enhanced vigilance in the promotion of women rights as well as entrenchment of anti-discrimination policies into law.

Despite these legal provisions, discrimination is evidently going on albeit through a more sophisticated approach. Managers intending to discriminate against a person will avoid citing their views on the sensitive aspects such as gender or religion and find a subtle reason that is more relevant to the job requirements. A survey conducted in the UK in 2007 indicate that gender discrimination against women is still prevalent with statistics indicating that employers tend to avoid women of childbearing age, especially the pregnant ones (BBC News, 2007). Wal-Mart is among the companies that have come under criticism in the recent past over what is viewed as a systematic approach of compensating women lower than their male counterparts (BBC News, 2007). Allegations of discrimination are also rife among Japanese companies operating in the UK and the USA with race being the factor in question (Hendra and Kleiner, 1998). This is despite the fact that the UK and the USA are among the countries with the strongest stance (in form of legislation) as far as discrimination at the work place is concerned.

This paper examines the question of discrimination at the work place with an aim to determine whether legislation is effective in tackling the practice in organisations.

Discrimination is in most cases as a result of the imposition of personal viewpoints in the management practices of organisations (Lewis and Gunn, 2007). Different people have different preferences as shaped by their experiences in different forums. For instance, persons from societies that are predominantly masculine tend to have a negative attitude towards women and their potential at work. These viewpoints would normally be maintained even where evidence points to the contrary. Personal opinions on class and race also tend to lead to discrimination in what analysts would call the employer bias (Wrench, 2007). These would normally be associated with viewpoints on how societies perceive different sections.

Discrimination on race can be based on a number of fronts including perceived levels of diligence, intelligence, class and loyalty. This disparity is especially most notable among Japanese companies. A survey conducted on Japanese companies operating in the USA reveals that over 80% of the managerial staff is of Japanese origin (Henra and Kleiner, 1998). The converse is true in American companies operating in Japan with about 70% of the managers in such companies being of Japanese origin (Henra and Kleiner, 1998). This face of discrimination can be explained by the societal viewpoints among the Japanese where loyalty is viewed as sacred. In the Japanese society, collectivist viewpoints that make people want to belong to a team or a given group over long periods of time have largely been translated into organisations with most Japanese tending to work for much longer than their western counterparts in single organisations. In the West, emphasis on career tends to be more emphasised and employees tend to change jobs with a higher level of frequency. It is perhaps this viewpoint that informs the Japanese organisations’ open preference for Japanese employees. One would argue that it would not amount to discrimination where length of service is considered as one of the yardsticks for determining how to promote employees. However, there have been numerous cases where employees of Japanese origin have been favoured despite being lacking in experience and skills. Racial discrimination is not unique to Japanese organisations alone. In the UK, a survey indicated that Bangladeshi women were 30% less likely to find employment than the white women in a study conducted to establish the extent of discrimination In the UK market (Equality Review, 2007).

One of the companies that have been on the limelight over their discrimination based on gender is Wal-Mart which has been criticised over its treatment of the women working for it (Wal-Mart, 2010). The company was sued by 1.6 million of its female employees and former employees who decried unfair treatment in their jobs. In their suit, the employees presented as part of their evidence statistics on compensation packages for employees which showed that women were paid lower than their male counterparts. The analysis which was based on the Drogin report established that women would work for the company for about 10 years before being elevated to a managerial position as opposed to their male counterparts who would work for only 8 years (Drogin, 2003). Moreover, only 14% of the management level staff is women: a complete contrast of statistics when considered that cashier staff is comprised of over 90% women (Drogin, 2003). This could be argued as clear evidence that the company may be having a policy to discriminate against women. A comparison with other leading retail stores indicated that in 2005, the proportion of management staff at Wal-Mart who was women was 20% lower than their industry counterparts (Sellers, 2005). Other statistics indicate that women are generally paid lower with the companies 2001 wage analysis indicating that an average woman would earn about $5,200 less than her male counterpart annually (Wal-Mart, 2010).

Allegations of gender discrimination in the UK are also quite common. In 2007, a report indicated that a married woman with a child younger than 11 years had a 45% lower chance to get a job than her male counterpart. Discrimination in the market is even more acute for women with much younger children with the discrimination of such women being higher than that of the disabled people. In a survey involving over 122 recruitment agencies in the UK in 2007, it was found that over 70% of their clients (employers) indicated that they would want to avoid pregnant women and women of childbearing age. In a similar survey, it was found that discrimination based on disability was being practiced with the disabled persons being 29% less likely to find employment than their non-disabled counterparts.

American law firms have also been criticised heavily over what is seen as gender and racial based discrimination (Yavasi, 2007). There have been remarkable improvements in the labour practices in the law firms on a number of fronts. For instance, the minorities and women in the US would hardly be able to enter into the large law firms in the period leading up to 1970. However, the trend appears to have changed with the current percentage of women and minorities entering the service of large law firms being about 50% (Payne-Pikus, Hagan and Nelson, 2010). The practice in large law firms in the US is such that after entering as an associate and one’s potential is determined, a decision is made on whether or not to retain them in the firms as partners. It is at this point that allegations of discrimination arise. Only about 17% of women and minorities entering as associates get to be retained as partners in such law firms (Payne-Pikus, Hagan and Nelson, 2010). The same trend is observed among Africans and Hispanic Americans whose percentage as associates is about 5% and only about 1% gets retained as partners in the law firms. Some of the arguments that are used in justifying the discriminatory policies have more to do with costs to the company. This is especially the case with women whose ability to go the extra mile appears to be compromised by their need to also concentrate on their families. Other justifications would be based on client references where some clients tend to prefer a certain type of persons to be their representatives in law suits (Odeku and Animashaun, 2012). It therefore becomes strategically disadvantageous to maintain an employee pool that may not be popular with the niche market being served.

Another industry where discrimination is rife is in the IT industry where age discrimination is known to be quite high. Age discrimination tends to be seen as a rational approach to management especially when it is considered that the young and inexperienced employees tend to demand lower wages than their older counterparts (Osborne, 2001). In IT firms, it is presumed that the ideal employee is one who is a fast learner, extremely creative and flexible in their thinking. This could be due to the rapid evolution of the industry. Older employees on the other hand are viewed as rigid and with possession of archaic skills that may not serve the market well in current times (Quan, Dattero and Galup, 2008). This often prompts the creation of discriminatory policies aimed at frustrating such employees to quit their jobs. The typical non-management employee aged over 40 years is an unwelcome visitor in most IT firms (Quan, Dattero and Galup, 2008). Company restructuring in IT firms where some employees are declared redundant tends to be targeting the older employees. Even though there could be some truths to the viewpoints that prompt such discriminatory policies, analysts argue that it is immoral to get rid of an employee whose contribution have greatly contributed to the success of the organisation (Osborne, 2001). An alternative to this would be to give them a chance in doing what they may be best at.

Discrimination is indeed very common in organisations. However, it is difficult to eradicate based on the fact that organisations will always have a rational way of explaining their decisions. Only statistics can be used to indicate that discrimination exists, and in many cases, this does not constitute sufficient grounds to find the organisations culpable.

In the UK, protection from discrimination in the working place was has been contained in several laws such as the disability discrimination act, the sex discrimination act and the race relations act (Crosby, Stockdale and Ropp, 2007). However, in view of the fact that the approach embraced by these acts was disjointed and complicating the process of enforcement, stakeholders clamoured for the introduction of a comprehensive bill that would promote equality at the workplace. This led to the introduction of the Equality Act 2010 which was enacted in October 2010 (Health and Safety Executive, 2012). This bill outlines the legislative approach that aims at protecting employees against discrimination on the basis of age, race, disability, class, religion, beliefs, state of health and other parameters (EHRC, 2012; Health and Safety Executive, 2012). The legislative approach aims at ensuring that the working environment in the UK is sanitised and that equality and diversity are promoted in a manner reflective of the socio-cultural dynamics in the rest of the society. Even though anti-discrimination laws in the USA are yet to be consolidated into one Act, the seriousness with which law enforcers embrace the issue of equality at the work place is not in doubt (Odeku and Animashaun, 2012). Numerous litigations have been filed successfully against perceived acts of discrimination and this demonstrates the seriousness of the system to tackle the vice in organisations. The rationale for tackling discrimination is the creation of a sustainable community.

Social sustainability implies the need to ensure that all members of the society live in harmony and with access to the basic opportunities and services available in the society. It is for the long term stability of the society where every member is content and happy to share the environment with others (Bell and Morse, 2012). With the changing in lifestyles, it is increasingly difficult for people to make a living without employment, especially in the developed world. In the olden days, survival would be possible for peasants who’d farm and afford to make a living. However, in the modern day world, employment seems to be the only way out and it is therefore important that the systems used in employment guarantee the ability of all members of the society to access the job opportunities (Bell and Morse, 2012). Eradication of discrimination reduces chances of events such as riots and social strife and this in turn creates an opportunity for economic growth and development in the society. Stability in the society is the foundation needed to ensure that the economy works as it should. It is therefore in the interest of all industry players that discrimination is eradicated and this is the thinking that has informed the legislation on equality and eradication of discrimination.

Despite the clear provisions contained in the equality laws, it is important to note that discrimination is still rife around the world. This makes it necessary to examine whether or not legislation can effectively eradicate discrimination. Issues of discrimination are not easy to prove in organisations. Analysts concur with this view and hold the opinion that at the end of the day, the manager will be able to find a perfectly rational reason for making the decisions that he/she makes even where the motivation for such a decision may be different (Fiske and Lee, 2008). While it is true that legislation is important in reducing the level of discrimination in organisations, it is very clear going by the current statistics that legislation is not enough to effectively tackle discrimination in organisations. Companies will time and again reiterate their commitment to equality at the workplace but statistics will always lean towards one form of discrimination or another (Payne-Pikus, Hagan and Nelson, 2010). For instance, it is very uncommon to find a person being denied a job and is told that it is because of race, gender, religion or any of the grounds outlined by legislation. In most cases, the reason would have more to do with assessed potential, skills, experience and other ‘professional’ parameters. It’s therefore very difficult to prove a case of discrimination under the set laws whose rules of evidence and natural justice are applicable to any suit on discrimination (Payne-Pikus, Hagan and Nelson, 2010). A different alternative would be to introduce rules that outline the composition of staff in terms of percentages for gender, race and so on. However, this approach would be too complicated in terms of implementation. In many cases, the implementation of the equality laws is largely dependent on the voluntary actions of the management teams in organisations.

The fight against discrimination is one that needs to be taken beyond legislation. It is one that must be taken to the public court backed by massive campaigns to shape the minds of the members of the society. For instance, the fight against discrimination of women in the workplace has been fought since the 18th century and has largely culminated into a situation where women are increasingly viewed as more capable and with the ability to execute tasks that would hitherto be viewed as beyond their reach (Fiske and Lee, 2008). The other important factor is that of shaping the mind-set of the clientele. One of the reasons given for large law firms discriminating against minorities is because their markets seem to be openly biased against minorities and blacks (Payne-Pikus, Hagan and Nelson, 2010). Some law firms admit to having had to change the lawyers working on a case after the clients expressed that they were uncomfortable with the firms’ choice of lawyers. The organisations therefore find it more economically viable to employ the kind of employees that are popular with their clients. They would therefore find all means possible to beat the legislative provisions and provide clients with what they want. The battle against discrimination is therefore one that must be won in the public court before prospects of winning in the workplace can be realised (Odeku and Animashaun, 2012). Opinions on sex, race, religion and others cannot be eradicated through legislation. Besides, issues of cost and profitability are still evident. Statistics indicate that childbearing mothers and pregnant women tend to be less productive due to their need to frequently take leave from work. Besides, leaves such as maternity leaves are compulsory and organisations will often have no option but to incur the associated costs (Crosby, Stockdale and Ropp, 2007). The same applies to the disabled who are generally less productive. Profit oriented organisations therefore find discrimination to be an easy option and they do so often without detection. Intellectuals will always find legally accepted reasons for their decisions and discrimination may therefore be hard to prove.

Despite the presence of numerous pieces of legislation against discrimination, the practice is still prevalent in organisations. Evidence of discrimination is clear in the UK with statistics indicating that organisations tend to be unwilling to employee young women of childbearing age as well as members of non-white races. The same can be said of the USA where evidence of gender and racial discrimination is quite prevalent in some sectors such as the legal professions with large law firms being among the most visible culprits (Payne-Pikus, Hagan and Nelson, 2010). A legislative approach has been embraced by most countries around the world where discrimination on the basis of age, religion, disability and others have been outlawed with the UK leading the way through the creation of a comprehensive equality act which addresses all forms of discrimination in organisations and other forums.

Evidence is clear that discrimination is still possible even with the existence of comprehensive laws aimed at discouraging the vice. The law is therefore not capable of eradicating the practice and it needs to be combined with other approaches. Issues of discrimination go back to the core of societal viewpoints and this makes it a cultural issue. The attitude of people towards religions, genders, disabilities and other states of being should be refined through social engagements. Organisations will always be able to find a rational reason for justifying their decisions and it is therefore very difficult to prove that discrimination is taking place. A biased manager will always be able to find a justifiable cause for doing what they intend to do (Osborne, 2001). The question of discrimination is therefore one that can best be dealt with at the cultural level through aggressive societal campaigns. This is however not to say that legislation is useless. Legislation should be present to provide the minimum standards while influencing of people’s views is done to ensure that all biases are eradicated or at the bare minimum ensure that people learn to contain their personal biases when acting in their official capacities.


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