Indirect discrimination (Research Paper Sample)

Indirect Discrimination
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Indirect Discrimination
Introduction
Indirect discrimination is the situation created when an employer imposes certain conditions, requirements or practices on a specific group or an individual, and the effects of such are felt in the workplace. In the UK, there are different forms of indirect discrimination, depending on how they are carried out. For example, it may be considered an indirect discrimination when a racial group or a group of one gender being given certain privileges because of the fact that such a group has fewer people who can meet the criteria required than the entire population. In this case, it should be considered whether people from that group perform the tasks even without meeting the criteria (Smith & Baker, 2011 pp. 178-183). If they are in the capacity to carry out the required work, the employer does not have a reason to deny them a chance in the workplace because they do not meet the criteria. Indirect discrimination applies to race, age, belief or religion, sexual orientation, gender, civil partnerships and marriages. This happens when it is justified that there would be no way it would work without the discrimination. For instance, it is very normal when only females are employed to work in a ladies’ hostel. In addition, it would be more reasonable to hire Chinese staff only in a Chinese hotel since they understand more about their culture, which is the main theme of the restaurant. For this reason, indirect discrimination is required in most of the circumstances that arise, but it should be used wisely. The UK justifies indirect discrimination under certain circumstances. For instance, if as a consequence of a person’s business of practices there is a disparity in the quality of treatment which some people receive; it is evident that the practice is objectively justified. . The UK courts and tribunals get the balance right when considering justification for indirect discrimination (Smith & Baker, 2011 pp. 94-97).
There are various concepts found in indirect discrimination, and they should be understood for a better comprehension of the topic. Such include racial groups, victimization, and vicarious liability. Racial groups are a group of individuals that are defined by their nationality, color and race. Such people may share the same language, culture or even their mode of dressing since they have some beliefs in common. Victimization is the situation in which someone is treated less favorably because they have complained about discrimination. Such treatment is accorded to discourage the parties from engaging in such practices of preaching against discrimination. Vicarious liability is the legal foundation in which an employer is found liable for the actions of the employee or agent. This happens mostly when an institution does not have the knowledge of the action, as long as the employee was in the course of duty and did everything within the responsibilities given by the employer (Collins, Ewing, & McColgan, 2012 pp. 56)
Indirect discrimination can be differed from direct discrimination in that the latter has less favorable treatment, which includes bullying or harassment. Indirect discrimination is focused on giving a different treatment of people of different groups, but direct discrimination may occur among people of the same group. In direct discrimination, a potential employee may be treated different owing to the fact that they are from a different race from another one, marital status, sexual orientation and religion. Some of the common examples of direct discrimination is when a male employee is denied a promotion at the expense of a female employee who has less qualifications for the promotion. Despite the sexual discrimination, there are other forms of direct discrimination include religion or belief. A person may be denied to enter commercial premises because of their beliefs or even denied accommodation because they profess a certain religion (Smith & Baker, 2011 pp. 84-88).
For a long period of time, the courts of Europe of human rights to indirect discrimination were found to be hesitant, despite the fact that the references to an effects- based approach to discrimination could be found in advance in their case laws. However, the recent concerns in the courts have shown what the courts refer to as indirect discrimination. For example, there is case of indirect discrimination which the courts decided in such a way that could be termed as fair. The case Hoogendijk v. The Netherlands prompted the court to determine that whenever an applicant has the capacity to show, on the grounds that there are undisputed official statistics, there is the existence of a prima facie indication that there is a specific rule to be followed. Some of the facts include the high number of women against men, and it is the role of the respondent government to show that the consequence of objective factors cannot be related to discrimination on the basis of sex. The court further stated that the burden of proof that a disparity in the impact of women and men is not discriminatory practically should not be shifted to the respondent government. In this case, it will be practically difficult to prove a case of indirect discrimination. In the named case, there was an allowance on disability under the Dutch law, and it was granted if the income of the applicant or of a member of a family who were mandated to contribute to the maintenance of the applicant remained below a certain level. The verdict given by the court stated that indirect sex discrimination, on the basis that the second condition, which in this case is the income of a member of a family, resulted in more females than males losing the benefit.
In another case D.H and others v. Czech Republic, there are also instances of indirect discrimination. The landmark case is also known as the Ostrava case where the racial discrimination to the prejudice of Roma children was presented and argued. The ruling was given in November 2007 by the Grand Chamber of the court where it reiterated that a general policy can be considered to be discriminatory under some circumstances. Such a policy includes one which has prejudicial effects on a certain group that are felt by the group only, and not others around. Such a policy is discriminatory notwithstanding the fact that it is not specifically reasoned out to that group. This can be found in paragraph 175 of the judgment. The grand chamber expressed references to a recommendation of the general policy of the European Commission against Racism and Intolerance (ECRI), in addition to the EC law. From the recommendation, it is evident that there is a difference in treatment may take the form of inappropriately prejudicial effects of a general policy which discriminates against a group, though it has been couched in neutral terms. In such a situation, as described in the case, it is not necessary that there is a discriminatory intent for it to be termed as discriminatory, but the action itself is termed as discriminatory as it may have been acted. The recommendation by ECRI has definitions and differences of both indirect and direct discrimination, as they have been modeled on the EC law. The recommendation states that indirect discrimination is the case where an actually neutral factor, for instance a provision, practice or a criterion cannot be easily fulfilled with by or demerits, people belonging to a certain group s that has been designated by a basis of color, race, language, nationality, religion or ethnic origin. However, this can only be disputed if the factor has a reasonable justification and an objective. The former would be considered if it pursues a legal objective, and if there is a reasonable relationship of proportionality between the aim sought to be realized and the means employed. This case is important as it helped the court find indirect racial discrimination to be on the grounds of the percentage of Roma Children placed in special learning institutions in the Czech Republic being much higher than any other of other children.
The origin of the concept of indirect discrimination under EC law
In the legal order of the European community, the concept of indirect discrimination is very common. Despite that the term is very important; it has not been used regularly, alongside direct discrimination, in the text of the treaty of the EC. The court of Justice can be attributed to differentiating the two concepts through the way it interpreted the EC legal provisions. Among these provisions, in particular, the exclusion of discrimination on the basis of sex under the staff of the communities, and under what is today, on equal pay of women and men. Where there are no legal definitions of the two terms, the definitions based on the case laws remain important and are always applicable. The term and concept of indirect discrimination cannot be termed as an original discovery of the European Community. The concept has been applied before in an international domain, which includes the early public international law and also in particular national legal orders such as the UK, Ireland and the USA. The EC law is said to have been influenced greatly by the national legal orders, and this caused the concept of indirect discrimination to be termed as a transplant from the systems of the common law into the civil law systems of Europe.
A United States case, Griggs v. Duke Power Co., shows how racial discrimination was perceived, and it was certainly illustrative as decided by the Supreme Court of the US in 1971. There was a requirement of a high school diploma and passing of intelligence tests before being employed or given job transfers at the Duke Power Company plant. The plaintiff challe...