Discrimination as One of the Most Contentious Present-Day Issues - Essay Example

? Law by 14 April Law Introduction Discrimination remains one of the most contentious present day issues. Much has been done to reduce and eliminate discrimination in the workplace. The current state of laws and regulations in Europe and the U.S. has the potential to alleviate the burden of workplace discrimination by race, sexual orientation, gender, religious beliefs, etc. Yet, despite the growing discrimination awareness and the broadening scope of anti-discrimination laws, the issue of workplace discrimination continues to persist. Thousands of people report cases of workplace discrimination by personal characteristics. Some of them are decisive enough to go to the court. Reasons why anti-discrimination laws appear to be ineffective are numerous and diverse. Basically, contemporary anti-discrimination laws are limited to negative torts against workplace discrimination; as such, they do not promote positive attitudinal changes in private business and do not provide conditions required to protect workers from unlawful discrimination. Discrimination: The current state of law Understanding why discrimination continues to persist is impossible without looking at the current state of anti-discrimination laws in Europe and America. For many years, the developed world had been concerned with the issue of workplace discrimination and possible ways to deal with it. As of today, the United Kingdom, the European Union and the United States run whole systems of anti-discrimination laws which, nevertheless, do not bring the desired effect. In the United States, Title VII of the Civil Rights Act of 1964 is the central component of the country’s anti-discrimination legislation that applies widely across private and public organizations. The discussed law is followed and complemented by the Age Discrimination in Employment Act (ADEA). The latter goes beyond the problem of racial discrimination and prohibits discrimination on grounds that are not recognized by the U.S. Constitution (Rutherglen 1995). In the United Kingdom, the Race Relations Act (1975), the Sex Discrimination Act (1975), as well as the Disability Discrimination Act (1975) create the basic trio of laws, followed by numerous amendments that currently govern the issues of workplace discrimination in the country. It should be noted, that the past decade witnessed an unprecedented rise in the number of anti-discrimination amendments passed by the British government (Fredman 2002). Nevertheless, the issue of workplace discrimination remains extremely relevant for Britain. Even in light of the Treaty of Rome and the Treaty establishing the European Union, Great Britain and other countries of Europe have been consistently unable to fight discrimination in the workplace. Given the growing extent of globalization and unification within the European Union, it comes as no surprise that the prevailing majority of EU anti-discrimination laws apply to the issue of free movement of migrant workers across EU member-states. According to the European Court of Justice, “a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage” (Commission v. Greece 1998). As such there is still no consistency in how the issue of discrimination is being managed. The situation in Australia is no better: as of today, Australia’s anti-discrimination laws include Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1975, Racial Discrimination Act 1975, and Sex Discrimination Act 1984. It is no wonder that these laws and numerous amendments create a great deal of confusion and make it difficult for public and, especially, private enterprises to avoid legal complexities and protect their employees from abuse. Discrimination in the workplace: Still an issue? With so many laws governing the issue of workplace discrimination, it is rather surprising that employees still experience the pressure of discrimination and abuse. Unfortunately, the workplace reality is much duller than it should be, and many workers that do not fit in the expected employee image, either by race, sexual orientation, religion, or any other personal feature are still likely to face the pressure of abuse. Discrimination by race is still one of the biggest workplace issues faced by organizations: many Black workers and employees representing ethnic minorities experience considerable disadvantages in the workplace (Monaghan 2005). Consequentially, the amount of non-white workers in the United Kingdom is much lower than that of white employees (Monaghan 2005). Generally, ethnic minority employees face several different forms of discrimination, including employment barriers, lower earning levels, career progress, self-employment and entrepreneurship problems (Monaghan 2005). The United States is in the similar situation: wage differentials in American-based companies by race, ethnicity and sex have been abundantly documented (Hellerstein & Neumark 2008). Less is known about the extent to which members of one and the same ethnic groups are likely to work together – this could also become an important measure of diversity and discrimination in the workplace (Hellerstein & Neumark 2008). More often than not, skills levels are the foundational element of decision making and discrimination in American business, but many employers associate skills levels with the race and ethnicity to which the worker belongs (Hellerstein & Neumark 2008). Sexual orientation is another cornerstone to the elimination of discrimination issues in the workplace. Lesbian, gay, bisexual and transgender employees report considerable difficulties in the workplace. In the survey conducted by Badgett, Lau, Sears and Ho (2007), between 16% and 18% LGBT employees reported discrimination experiences. That was the situation during the 1980s-1990s and it did not change until present (Badgett et al. 2007). More specifically, LGBT employee report being fired or denied employment, denied a promotion or given negative feedback, abused physically or verbally, had their workplace vandalized, or even having their pay and earnings lower than among their colleagues in similar positions (Badgett et al. 2007). Among transgender employees, more than one half of them have experienced workplace discrimination at least once in a lifetime (Badgett et al. 2007). That senior employees are more likely to be discriminated against than their younger colleagues also means that the age discrimination regulations do not work (Rutherglen 1995). This, in turn, raises the question of why the anti-discrimination laws do not work and whether anything can be done to improve the situation. Why anti-discrimination laws do not work Reasons why anti-discrimination laws in the developed world do not work are numerous. To begin with, most laws do not reflect the realities of present day workplace discrimination and provide little incentives for employers to protect their subordinates from unlawful abuse. Looking at the Race Relations Act 1976 and the Sex Discrimination Act 1975 in the U.K., it is clear that both acts are more normative and remedial rather than proactive (Monaghan 2005). In other words, these laws are designed in ways that do not promote changes in organizational cultures and employee attitudes toward diversity. It is no wonder that these laws do not produce the desired anti-discrimination result. In this situation, the law does not fulfill one of the main functions imposed on it – to protect minorities from discrimination and abuse. Rather than protect, the law merely declares its commitment to the values of equality and fairness but does not work to implement these provisions in actual workplace environments. In its current state, the anti-discrimination law in the developed world, including Britain and America, provides good grounds for the peaceful resolution of discrimination grievances filed by employees against their employers (Monaghan 2005). However, releasing tensions is not the same as changing public attitudes toward different races. The law fails to address the roots of discrimination and eradicate it. With the predominantly remedial character of anti-discrimination laws, discrimination will remain one of the major societal evils for decades, especially in the private business sector where negative statutory torts and individual enforcement are still the strongest elements of anti-discrimination regulation. The lack of clarity and the confusion of terms plague today’s anti-discrimination laws in Europe and beyond. There has been much argument as to whether it is appropriate to treat the concepts of discrimination and harassment as regressive (Monaghan 2005). For example, the anti-discrimination regulation in the U.K. has been characterized by the growing scope of ‘reasonableness’ commitments in law, which means that issues of discrimination are becoming increasingly subjective, and the issue of reasonableness and motives of discrimination are regarded from the majority perpetrator’s perspectives (Monaghan 2005). Likewise, the EU law against discrimination fails to provide an adequate and plausible definition of workplace discrimination; as a result, what discrimination is and how anti-discrimination laws in EU member-states should be enforced remains an issue of hot debate (Monaghan 2005). This is one of the reasons why employees cannot feel protected by law from the risks of discrimination and abuse. This is also why not all employees and their lawsuits can qualify for discrimination cases and claims. As a result, the number of discrimination lawsuits won by employees in the developed world remains remarkably low. It is interesting to note that the models on which contemporary anti-discrimination laws rely are not always appropriate. For example, the Age Discrimination Employment Act in the U.S. does not use the constitutional theory of insular groups but, rather, relies on the life cycle theory of earnings (Rutherglen 1995). “Under the life cycle theory of earnings, an employee’s compensation at first exceeds his productivity because the employee received on-the-job training from the employer. […] the employer’s profits during the middle period should compensate it for its losses in the earlier and later periods” (Rutherglen 1995). For the reasons stated above, the forms of discrimination mediated by this law are limited to unlawful discharge. The ADEA cannot extend to cover other forms of age discrimination in the workplace or can make it particularly difficult for discriminated employees to prove their point in courts. The complexity of anti-discrimination laws makes it extremely difficult for employees to file lawsuits or at least defend their rights for equality and fairness in the workplace. The number of amendments and regulations constantly grows. As in case with the Race Relations Act 1975, Title VII of the Civil Rights Act of 1964 in America have numerous exceptions and make it difficult for non-legal employees to understand their meaning. At times, the law shifts the burden of responsibility for providing proofs of discrimination on the plaintiff (Monaghan 2005). Consequentially, few employees can be sure that they are fully equipped with evidence to prove the fact of discrimination against them. Finally, but no less importantly, the current understanding of anti-discrimination laws and the degree to which these laws work in organizations greatly depends upon the quality of the organizational climate. Surprising as it may seem, different organizations interpret and implement anti-discrimination laws in entirely different ways. Because of the legal confusion and the lack of clarity described above, organizations lack a uniform understanding of the concept of discrimination and ways to prevent it. Internal working conditions play a huge role in how discrimination in the workplace is handled. According to Hirsh and Kornrich (2008), the internal work environment organization not only contributes to variations in sex and race charges but may also encourage or restrict the degree to which regulatory agents and workers recognize and act against workplace discrimination. For example, internal work environment characteristics can lead women to perceive the presence of discrimination based on gender (Hirsh & Kornrich 2008). However, these internal workplace conditions may also discourage women from filing a lawsuit to the court. These internal workplace conditions may define the extent to which women see discrimination as systematic or egregious (Hirsh & Kornrich 2008). The quality of workplace practices differs greatly across organizations. Some may favor race- and gender-neutral practices, whereas others may go further and motivate their employees to become more race-conscious and diversity-minded. Finally, based on the quality of internal workplace conditions, regulatory agents will take the final decision as for the validity of employees’ discrimination claims (Hirsh & Kornrich 2008). Here, various structural characteristics of the organization in general and the workplace, in particular, should be considered. All these characteristics may reduce the scope of discrimination complaints coming from employees, even if the latter feel that discrimination is relevant and serious. All these variations and difficulties suggest that contemporary anti-discrimination law lacks clarity, consistency and uniformity. That employee perceptions of discrimination vary across organizations means that present day law does not provide uniform criteria for judging the presence or absence of discrimination in the workplace. Therefore, it is high time the developed world reviewed and changed the structure of legal instruments governing discrimination issues. As the entire world is moving towards unification and integration, the creation of a supranational anti-discrimination framework could become a viable solution to the existing legal difficulties. Conclusion Discrimination in the workplace remains one of the greatest societal evils affecting the globalized world. The growing scope of anti-discrimination laws does not help to solve the issue. Reasons why anti-discrimination laws do not work are numerous. The complexity of anti-discrimination laws makes it extremely difficult for employees to file lawsuits or at least defend their rights for equality and fairness in the workplace. Most laws do not reflect the realities of present day workplace discrimination and provide little incentives for employers to protect their subordinates from unlawful abuse. Finally, different organizations interpret and implement anti-discrimination laws in entirely different ways. As the entire world is moving towards unification and integration, the creation of a supranational anti-discrimination framework could become a viable solution to the existing legal difficulties. References Australian Human Rights Commission 2012, ‘A guide to Australia’s anti-discrimination laws’, HREOC, [online]. Badgett, MV, Lau, H, Sears, B & Ho, D 2007, Bias in the workplace: Consistent evidence of sexual orientation and gender identity discrimination, The Williams Institute. Commission v Greece Case C-187/96, [1998] ECR I – 1095. Fredman, S 2002, Discrimination Law, Oxford: Oxford University Press. Hellerstein, JK & Neumark, D 2008, ‘Workplace segregation in the United States: Race, ethnicity and skill’, The Review of Economics and Statistics, vol.90, no.3, pp.459-477. Hirsh, CE & Kornrich, S 2008, ‘The context of discrimination: Workplace conditions, institutional environments, and sex and race discrimination charges’, AJS, vol.113, no.5, pp.1394-1432. Monaghan, K 2005, ‘Challenging race discrimination in the private sector: Strengths and weaknesses of the present legislative model’, Matrix Chambers, [online]. Rugherglen, G 1995, ‘From race to age: the expanding scope of employment discrimination law’, Journal of Legal Studies, vol.XXIV, pp.491-521. Read More