UK: Rolling Out A Global Antidiscrimination Policy

Last Updated: 7 March 2012
Article by John D. Shyer, Alain Gatignol, Emma Perkins and Norma Studt

Employers with multijurisdictional operations increasingly seek to implement blanket policies that apply equally to their employees wherever they might be based. This can prove challenging in the case of a global anti-harassment or equal opportunities policy with antidiscrimination and antiharassment laws varying widely from one jurisdiction to the next.

In this article, Latham & Watkins attorneys from across the globe discuss various antidiscrimination regimes and practices, with a view to addressing the challenge of implementing a harmonized policy.

United States

Many employers in the US have adopted policies addressing discrimination and harassment in the workplace. Because employers in the US are subject to an extensive set of federal and state laws and regulations intended to prevent discrimination against protected classes of individuals in the workplace, many employers have found it prudent to adopt one or more broad policy statements that cover the full range of protected individuals and prohibited actions.

While there is no one standard antidiscrimination policy, most policies indicate that the company is an equal opportunity employer and delineate the bases upon which discrimination in the workplace is prohibited. In the US, most employers are subject to federal employment laws that prohibit discrimination on the basis of race or color, sex, national origin, religion, disability, age and genetic information. Employers may also include other categories in their policies that are not covered in federal antidiscrimination laws, but which are included in state or local antidiscrimination laws, or which are determined by the company as subject to protection from disctrimination. For instance, New York state law prohibits employers with more than four employees from discriminating against applicants and employees on the basis of sexual orientation or status as a victim of domestic violence.1 Generally, policies include a catch-all phrase to indicate that the company will not discriminate on the basis of any legally protected status.

Antidiscrimination and equal employment opportunity policies typically explain the range of prohibited behaviors and discriminatory actions. The federal laws on discrimination generally prohibit discrimination in all actions connected with employment. Thus, equal employment policies may give a non-exhaustive list of instances in which discrimination in the workplace is prohibited, including hiring, promotion, compensation, training, transfers, benefits and retirement. Again, many policies include a catch-all phrase to indicate that the company prohibits discrimination in other relevant aspects and conditions of employment.

Because harassment of an employee in the workplace on the basis of a protected characteristic such as sex or race has been determined to be a form of discrimination under the law, most policies will indicate that harassment on the basis of any protected status is prohibited within the company. As federal antidiscrimination laws require that employers make reasonable accommodations for employees to, for instance, practice their religion or cope with a disability while on the job, employer policies may also include a statement that the company will provide reasonable accommodations to employees and the procedures by which employees may request such accommodations. Finally, the policies may include instructions for filing grievances, as well as descriptions of the investigative steps and disciplinary actions that the employer may take in the event of a policy violation.

The aforementioned antidiscrimination statutes do not generally require the adoption of any equal employment opportunity policies by most companies in the US. The exception is that government agencies and almost all government contractors and subcontractors are required to maintain antidiscrimination policies and to implement "Affirmative Action Programs" to monitor, and where necessary, increase the hiring and promotion of women, minorities, the disabled and military veterans.2

Even though the antidiscrimination statutes and regulations do not require it, many private employers who are not government contractors voluntarily adopt and implement equal employment opportunity policies to ensure compliance with antidiscrimination laws. Avoidance of exposure to litigation for workplace discrimination is a major motivation for adopting these policies. Employers who are found to be in violation of federal antidiscrimination laws may be liable to injured employees for damages, including backpay, compensatory and punitive damages, liquidated damages (under the Age Discrimination in Employment Act); injunctive or equitable relief, including court-ordered reinstatement or promotion and attorneys' fees. In addition to the legal incentives to avoid discrimination in the workplace, many employers establish goals for promoting a diverse workforce, which they may deem to be desirable for business (such as in marketing or recruitment). To that end, many employers not only implement equal employment opportunity policies to prevent discrimination, but also voluntarily adopt policies and practices which promote the hiring and retention of women, minorities, the disabled, and veterans, among other groups.

United Kingdom

The position in the UK is similar to that in the US. Discrimination and harassment on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race (which includes color, nationality, ethnic origin and national origin), religion or belief, sex or sexual orientation is prohibited by the Equality Act 2010. Employers in the UK are not required by law to have an equal opportunity policy. However the Equality and Human Rights Commission's (EHRC) Employment Statutory Code of Practice recommends that employers implement such a policy. Although the EHRC has no legal powers, compliance with its code can be taken into account by an employment tribunal, so it makes sense for employers to adhere to its principles where practicable.

Implementing an equal opportunity policy and requiring employees to attend anti-harassment training can also help employers defend themselves from liability for employee discrimination claims. Under the UK Equality Act, any discriminatory act done by an employee "in the course of his employment" is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval. The employer can, however, defend itself from this vicarious liability by showing that it took "all reasonable steps" to prevent the offending employee from carrying out the discriminatory act.

Although having an equal opportunity policy alone will not be sufficient to protect employers from vicarious liability for the actions of its employees, the absence of an equal opportunity policy is potentially condemnatory. Implementing an equal opportunity policy, keeping it up to date and providing regular training on the policy can assist an employer in defending itself from vicarious liability for the discriminatory act of one employee against another.

In addition, in the UK, the employer can become liable for discriminatory acts of third parties against its employees (e.g., where a client or customer of the employer harasses an employee). The employer will only be liable if: (i) the third party harasses the employee in the course of their employment; (ii) the employer failed to take steps which were reasonably practicable to prevent third party harassment; and (iii) the employer knew that the employee had been harassed on at least two other occasions by a third party. Again, therefore, the employer can defend itself from such liability by taking 'reasonably practicable' steps to prevent third party harassment. Implementing a clear policy that indicates that the employer will not tolerate third party harassment and inviting employees to report such incidents is likely to be helpful in this respect.

A US policy would generally cover the same categories of protection as would customarily be included in a UK policy. There are slight variations, for example, in the UK it is uncommon to protect employees from discrimination on the grounds of their status as a war veteran. However, it would not be unlawful to include such a provision in a UK policy.

In the UK, the law protects employees from being "victimized" (i.e., suffering a detriment) for bringing discrimination proceedings, alleging discrimination or giving evidence or information in connection with discrimination proceedings. A UK antidiscrimination policy would typically include a section prohibiting victimization. A victimization section is typically called a "retaliating behavior" section in the US, so US employers should bear the differences in section headings in mind when tailoring their policy for UK-based employees.

Middle East

Many aspects of a typical US or UK antidiscrimination policy are incompatible with the laws of various jurisdictions in the Middle East. For example, in the Kingdom of Saudi Arabia (KSA), the Minister for Labor has powers under the Labor Law to specify jobs that are unsuitable for women. It is also customary for men and women to be segregated in the work place. In countries that observe Shari'ah Law, such as KSA, Kuwait and the United Arab Emirates, homosexuality is treated as a violation of Shari'ah Law and as such is a criminal offense. There is likely to be no tolerance in the workplace for even recognizing employees as homosexual, and any policy offering protection against discrimination on the grounds of sexual orientation would be incompatible with local law.

In the US and the UK, a typical antidiscrimination policy would prohibit discrimination and harassment on the grounds of national origin. In many countries in the Middle East, including Kuwait, KSA, UAE, Jordan and Egypt, certain positive discrimination regimes are in place that promote the hiring of nationals or individuals from other Arab states. A policy prohibiting discrimination on the grounds of national origin would be incompatible with any such positive discrimination laws.

Antidiscrimination and anti-harassment legislation does exist in certain Middle Eastern jurisdictions. For example, in Egypt, the Labor Law offers protection from discrimination to individuals on the grounds of race or color, gender and pregnancy status, marital status, religion, political affiliation and trade union participation. When preparing a policy that will impact employees in the Middle East, employers should consider seeking specialist advice in respect of each jurisdiction. This will allow employers to successfully cater to the varying regimes in each jurisdiction.

Germany

Discrimination and harassment on the grounds of race or ethnic origin, gender, religion or philosophical belief, disability, age or sexual orientation is prohibited in Germany by the Basic Law and various statutory provisions, particularly the General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz) (the AGG). Employers in Germany are not required by law to adopt an equal opportunity policy.

Implementing an anti-harassment and antidiscrimination policy may assist an employer in defending claims. As in the UK, any discriminatory act done by an employee "in the course of his or her employment" is treated as having been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval. However, the employer can defend itself from this liability by showing that it took "all reasonable steps" to prevent the offending employee from carrying out the discriminatory act. In this respect, it is a requirement of the AGG that employers sufficiently train their employees on the principles of the AGG. Employers should also provide employees with access to an ombudsman or complaints office. The implementation of an equal opportunities policy alone will not be sufficient in protecting employers from liability for their employees' acts.

Taking "all reasonable steps" to avoid harassment and discrimination also includes action taken by the employer against the perpetrators of the harassment/ discrimination. However, protection against harassment and discrimination is not only provided in respect of the acts of an employer's own employees but also in respect of acts by third parties. This could include service providers (including personnel consultants) or customers. A German antiharassment and antidiscrimination policy would commonly state that the employer will not tolerate harassment and/or discrimination either by its own employees or by third parties. The policy should advise employees of their right to complain in the event that they encounter discrimination/harassment.

The content of an anti-harassment and antidiscrimination policy in Germany varies in some respect to what is typical in the US. For example it is uncommon in Germany to offer employees protection from discrimination on the grounds of their status as a war veteran. Also, a number of requirements in a typical US policy may only be of a declaratory nature or not enforceable in Germany because German law provides for different requirements or consequences. However, it would not be unlawful to include any such provisions in a German policy. A German anti-harassment and antidiscrimination policy would mainly explain the principles of the AGG, outline any particular forbidden behavior and set out the right to complain about inappropriate conduct.

As a result of a complaint or claim, an employee in Germany must not suffer any detriment. The AGG provides for an express ban on disciplinary treatment, and a German anti-harassment and antidiscrimination policy would advise the employees of that fact.

If there is a works council in place, it may hold information and consultation rights, or even co-determination (and therefore negotiation) rights in respect of the implementation of anti-harassment and antidiscrimination policies. These rights will be dependent upon the specific issues covered by the policy.

France

Given the wide range of prohibited conduct and the related civil and criminal liabilities, a number of employers operating in France have implemented internal policies prohibiting discrimination and harassment. Internal policies can be decided either unilaterally by the employer or agreed upon (in whole or in part) through collective-bargaining.

In France, discrimination, whether direct or indirect, is prohibited on the grounds of: origin, gender, family circumstances, physical appearance or surname, health status, disability, genetic characteristics, sexual behavior or orientation, age, political opinions, union activities, or membership or non-membership, true or supposed, of a particular ethnic group, nation, race or religion. Harassment is also prohibited by French law. Harassment is defined as repeated acts, the purpose or effect of which is the creation of a degrading working environment for an individual employee which could potentially impair that individual's rights and dignity, or physical or mental health, or could prejudice his or her career path.

By law, employers are required to increase awareness by including mandatory provisions that prohibit discrimination and harassment in the company's internal rules and regulations (règlement intérieur). In addition, a specific grievance procedure should be available to employees who can raise issues with: staff delegates (délégués du personnel) in the event that harassment is alleged to occur; the works council (comité d'entreprise) and/ or the health and safety committee (CHSCT).

These employee representative bodies hold specific information and consultation rights with regard to the implementation of policies prohibiting discrimination or harassment where it would be likely to impact upon working conditions, remuneration, career development etc.

In addition to the legal obligations described above, employers operating in France may adopt more original initiatives, as inspired by a more global trend. For example, a specific grievance committee, made up of managers and employee representatives, can be set up to deal with alleged instances of discrimination or harassment. A discrimination and harassment hotline can also be made available to employees, (subject to prior consultation with employee representatives, and prior and specific authorization from the French data protection authority (CNIL)). Specific training on how to prevent and deal with instances of discrimination and/or harassment is also commonly delivered to managers and employee representatives by employers in France, sometimes as part of more general legal compliance and ethics training.

It is also worth noting that employers in France can apply for certifications reflecting their continuing efforts against discrimination and harassment (for example Label diversité which is delivered by the French operator in charge of standardization, AFNOR). N

Footnotes

1 See N.Y. Exec. Law § 296(1)(a) (Consol. 2011), available at http://www.dhr.state.ny.us/doc/doc/hrl.pdf.

2 Executive Order No. 11246 prohibits discrimination by government contractors and subcontractors on the basis of race, color, religion, sex, and national origin, and requires the use of affirmative action plans; Executive Order No. 11478 and the Civil Service Act of 1978 require the same of federal departments and agencies; the Rehabilitation Act of 1973 prohibits discrimination by government contractors against those with disabilities, and requires affirmative action to promote the hiring of those with disabilities; the Vietnam Era Veterans Readjustment Assistance Act of 1974 prohibits discrimination against and promotes the hiring of disabled veterans and veterans of the Vietnam Era.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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