Promoting diversity and inclusion in the workplace is a fast-moving area of law and HR practice. What's new across the world?
In the wake of the #MeToo movement, many jurisdictions implemented or improved harassment protections and that trend is still evident across the world. In Denmark the government and social partners have entered into a wide-ranging agreement on sexual harassment to foster change. Consisting of 17 initiatives, it is a mixture of statutory change, new codes and policies, and information gathering. Also in Denmark, a significant recent High Court case held an employer liable for failing to prevent an employee's sexual harassment of a colleague, underlining the importance of employers taking preventative measures.
The Norwegian government is consulting about implementing ILO Convention no. 190 to eliminate violence and harassment in the workplace. It also proposes a new gender equality policy, a duty for employers to have workplace harassment and sexual harassment policies and to clarify the duty on safety representatives to safeguard the working environment of employees.
Greece is also obliging employers to implement policies or provisions on dealing with harassment in the workplace and France has recently seen an extension of the definition of sexual harassment in its Labour Code, requiring companies to update their internal regulations.
Ireland has implemented a new code of practice on sexual harassment. It does not create new obligations but promotes best practice, such as recommending employers adopt and publish policies to ensure harassment-free workplaces and deal effectively with complaints. It encourages training for employees on preventing sexual harassment. It also highlights the position of vulnerable workers who may need additional measures. Ireland has also adopted a new code of practice on preventing workplace bullying. It is more onerous on employers and is more emphatic about recommending mediation to employees as a potential route to resolve issues. Failure to abide by the code is not illegal but can be used in evidence before the Workplace Relations Commission.
The UK government also committed to introducing a new proactive duty on employers to prevent sexual harassment, whilst also considering new laws which would make employers liable if third parties harass their employees and the possibility of extending the time limit in which to bring discrimination claims. No legislation, however, is being introduced to parliament at the moment.
In Texas, a new law means employers must take 'immediate and appropriate corrective action' to remedy workplace sexual harassment that they know or should have known about. Employers of all sizes are affected, and individual employees can also be liable.
In September 2021, Australia updated its workplace sexual harassment laws to adopt some (but not all) of the recommendations in the Australian Human Rights Commission's Respect@Work report. Among other things, the reforms clarify that sexual harassment is prohibited under the Sex Discrimination Act, expand coverage to ensure paid and unpaid workers are protected, extend the time limit for making a complaint from 6 to 24 months, make victimisation a potentially criminal offence and give new powers to the Fair Work Commission to make 'stop sexual harassment orders'. Since then, the new Labour government elected on 21 May 2022 has promised to implement all the outstanding recommendations from the Respect@Work report. These include enacting a positive duty upon employers to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and victimisation and providing the Australia Human Rights Commission with a broad enquiry function to enquire into systemic unlawful discrimination.
The South African code of good practice on the prevention and elimination of harassment in the workplace came into effect in March 2022, replacing a previous version. The new code is much more far-reaching, encompassing all forms of harassment in the workplace including sexual, racial, ethnic or social origin harassment. If the employer has not taken all reasonably practicable steps to ensure harassment does not occur, it may be vicariously liable for the conduct.
South Korea is expanding its protections. Under the current law, employees can file sex discrimination or sexual harassment complaints with the labour office, which can investigate, make orders and issue fines. From May 2022, employees will also be able to take complaints to the Labor Relations Commission and available remedies will include damages. In October 2021, South Korea also introduced new employer obligations and penalties for other types of workplace harassment.
A new ruling by the national labour court in Israel has stated that where a sexual harassment claim is filed against an employer and the complainant alleges the internal investigation was mismanaged, the employer could be required to disclose background material collected in the course of the investigation. Normally, an appointed investigator produces a summary of findings and recommendations and other materials, such as interview transcripts, are kept confidential to protect privacy and encourage cooperation with the investigation. Following this ruling, the employer may be required to disclose this material if the investigation is alleged to be flawed.
US President Joe Biden signed an executive order in January 2021 on preventing and combatting discrimination based on gender identity and sexual orientation. This codified the Supreme Court's decision in Bostock v Clayton County which held that discrimination 'because of sex' included discrimination on the basis of gender identity and sexual orientation and it directs federal agencies to take affirmative steps to implement these rights.
Argentina implemented a new law aimed at promoting equality of opportunity at work for people who consider they have a gender identity that does not correspond to their birth sex, whether or not they had officially registered a change of sex. The law provides for a minimum hiring quota of not less than 1% of public administration personnel for 'cross dressers, transsexuals and transgender people' and for benefits for private sector companies that hire people from those groups.
From 1 January 2022, Denmark introduced a ban on discrimination on the grounds of gender identity, gender expression and gender characteristics. According to this law, 'gender identity' covers a person's inner and individual experience of their gender, 'gender expression' means the way they express it, such as through clothing, and 'gender characteristics' includes bodily features that characterise and differentiate gender, including chromosomes and secondary sexual characteristics. The terms are also now included in the provisions about hate crime and hate speech in the criminal code.
There were also court rulings related to gender identity in Germany and the UK. A German job advertisement which used the gender neutral 'gender star' was held not to discriminate against polygender individuals. The star, which is supposed to indicate in a job advertisement that both sexes are welcomed, was found to be gender sensitive and an indication of diversity rather than discrimination. In the UK, the Employment Appeal Tribunal found that both a belief in 'gender identity' and the opposing 'gender critical' belief were protected philosophical beliefs for the purpose of discrimination law.
Sex and other protected characteristics
In other developments relating to sex discrimination, the Netherlands has implemented new targets for gender balance on boards. Large employers must publish appropriate and ambitious targets for the ratio of men to women on boards of directors, supervisory boards and senior management and must explain a failure to reach their targets. Supervisory boards must contain a third men and a third women and new appointments that breach this requirement will be rendered void. In addition, there is an initiative bill pending that proposes mandatory appointment of a 'Trusted person' within organisations. This is to reduce and prevent discrimination and other forms of harassment in the workplace. Similarly, in Ireland, proposals are in place regarding the regulation of gender balance on the boards and governing councils of corporate bodies – the proposal is for a 40% quota for female representation on company boards. From 1 January 2022, the Hong Kong Stock Exchange has also adopted a Listing Rules amendment which states that 'single gender' boards are considered unacceptable. They have stated that all existing 'single gender' board issuers must appoint at least one director of a different gender by 31 December 2024
Gender balance on corporate boards has also been the focus of a recent 'landmark' political agreement reached by the EU Commission after ten years of stalemate. The Directive on improving the gender balance among non-executive directors of listed companies aims to address the underrepresentation of women in high level positions. It is now agreed that from 30 June 2026 companies listed in the EU must ensure that 40% of non-executive directors, and 33% of all directors, are the 'underrepresented sex' (which will usually be women). Companies that do not achieve those objectives must apply transparent and gender-neutral criteria in the appointment of directors and prioritise the underrepresented sex where two candidates of different sexes are equally qualified.
From 1 April 2022, Japan extended the Promotion of Female Participation and Career Advancement in the Workplace Act. All companies with more than 100 employees must formulate and file an action plan to improve gender equality, which contains concrete objectives and measures. Also on gender equality, in Germany, laws relating to the inclusion of women in leadership positions are being extended, a key change being that from 1 August 2022 public companies with over 2000 employees will be required to appoint one woman and one man to any management board that has more than three members. Similarly, in December 2021 France introduced an obligation for large companies (with more than 1,000 employees) to report on the representation of men and women in management committees and among top executives and to meet quota requirements relating to gender representation.
In Spain, a recent draft bill on sexual and reproductive health has garnered significant international media attention due to the proposal widely termed 'menstrual leave'. If approved by Parliament, social security contributions would continue to be payable in certain cases of incapacitating menstruation.
In June 2021, Hong Kong introduced protection for breastfeeding women by making breastfeeding a protected characteristic in workplace discrimination law. In April 2021, the Equal Opportunities Commission published practical guidance for employers on providing equality for breastfeeding women in the workplace, which although non-binding is considered best practice for employers in the city.
There are fewer worldwide developments to report unrelated to harassment or gender but in other diversity and inclusion initiatives, the Creating a Respectful and Open World for Natural Hair (CROWN) Act (HR 2116) passed the United States House on 18 March. This would be the first piece of federal legislation addressing appearance discrimination as it specifically relates to a worker's protected characteristic (in this case, race). The states of Oregon and Illinois and some districts in North Carolina join other US states in making natural hairstyles a protected characteristic. By contrast Florida has passed a new law (the 'Stop WOKE' Act) to take effect from July 2022 restricting what employers can say in diversity training. The new act applies to employers of 15 or more people and prohibits mandatory training for employees that promotes certain controversial theories, such as critical race theory. There is a pending legal challenge to the act.
In April 2022, Belgium simplified the conditions for labour inspectors to use anonymous practical tests, also referred to as 'mystery calls', to identify discrimination in recruitment. The new bill aims to increase the use of the tests by lowering the thresholds required and extending the powers of the inspectors.
The prime minister of Singapore announced in September 2021 that some of the best practice guidelines on preventing discrimination would be put into law. Current legislation only outlaws discrimination because of pregnancy or enlistment. The new laws will allow employees to bring claims against their employers for discrimination on grounds of nationality, race, sex, age, race, religion and disabilities. Disputes will go through conciliation and mediation prior to coming before a new workplace discrimination tribunal, to be established.
In Malaysia, the Employment (Amendment) Bill will extend the Director General of Labour's powers in relation to disputes involving employment discrimination. Failure to comply with a Director General's order will be an offence subject to a fine. It is not clear how effective this will be, as there is no clear definition of what constitutes discrimination or which protected characteristics are covered.
There is some important case law on other protected characteristics. In Belgium the Labour Court of Antwerp ruled that employers who discriminate on multiple protected grounds may be subject to cumulative compensation awards, even if the acts are intertwined. And there are several decisions on dress codes and religious discrimination. In France, the Court of Cassation (Supreme Court) has ruled in favour of a woman who was dismissed for refusing to remove a religious headscarf, which the employer demanded to preserve their 'brand image'. The employer said there was a necessary and professional requirement for the restriction, relying on its assessment of customers' expectations but the court found these were subjective considerations and rejected the argument. And there were European Court of Justice decisions on the same topic in the combined German cases of IX v Wabe and MH v MJ. The European Court of Justice ruled that a neutral dress code in the workplace does not constitute discrimination on grounds of religion or belief, provided the neutrality policy meets a 'genuine need', is appropriate and proportionate.
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