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Are Direct And Constructive Discrimination Are The Same Thing

author
James Lee
• Monday, 02 November, 2020
• 15 min read

Direct discrimination is explicit with direct statements and official policy against those specifically protected and enumerated under the Civil Rights Act of 1964. Indirect discrimination occurs when a workplace policy or procedure applies to everybody, but it puts those who have a protected characteristic (as defined in the Equality Act 2010) at a disadvantage.

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Contents

Interestingly, the individual in question does not necessarily have to have the protected characteristic in order to be the victim of direct discrimination. If an employer has certain practices, procedures, rules or processes that put people with a protected characteristic at a disadvantage then this is indirect discrimination.

The key difference here is that the employees who are at a disadvantage because of their protected characteristic are not being singled out by their employer, they are simply subject to the same rules as everyone else. If a rule or policy only applies to some workforce based on their shared protected characteristic, then this could be direct discrimination, rather than indirect discrimination.

Although this applies to everyone in the same way, this could potentially put a young mother at a disadvantage, as she would need to make childcare arrangements. In certain circumstances, indirect discrimination may not be unlawful if an employer can demonstrate that there is an 'objective justification' for the rule, process or procedure in question.

The employer will be required to show that the rule, process or procedure in question is necessary to achieve a certain aim, the benefits of which outweigh the discriminatory impact. If you feel that you have suffered direct discrimination or indirect discrimination in the workplace, then speak to an Employment Solicitor who can provide you with advice and guidance on the next steps to take.

To be unlawful, the treatment must have happened in one of the situations that are covered by the Equality Act. If you have been treated worse due to your age, this may be allowed if the organization or employer can show that there was a good reason for the difference in treatment.

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If you are treated worse due to any other protected characteristic, it is unlawful direct discrimination whether the organization or employer has a reason for it. Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group.

If this happens, the person or organization applying the policy must show that there is a good reason for it. If the organization can show there is a good reason for its policy, it is not indirect discrimination.

At work in housing in a union or professional group by a service provider, like a store employee, restaurant, or school Employers, landlords, union representatives, and service providers aren't allowed to discriminate for reasons that are against human rights laws.

In most cases, employers, landlords, union representatives, and service providers have a duty to accommodate you unless they can prove undue hardship. For example, a landlord hires a property manager and tells them not to rent to Indigenous tenants.

Sometimes a rule or practice that is applied to everyone in the same way might affect one group of people differently and can lead to unequal treatment. This can be discrimination against people who wear hijabs, turbans, or other religious head coverings.

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For example, it does not apply if a stranger insults you on the street by making a racist comment, because this did not happen in a specific social area such as at your job or at a restaurant. An employer, landlord or service provider does have a duty to prevent and address discrimination.

You were treated differently in your job due to a personality conflict with your manager a medical treatment decision was based on professional judgment To be discrimination, the treatment must be related to a protected personal characteristic.

Some industries are covered by federal laws made by the Government of Canada. These industries include banks, airlines, some trucking businesses, and broadcasting.

Employers in these industries must follow the Canadian Human Rights Code. Some companies have a special hiring program to try to make their workforce more diverse by including more people from a variety of racial communities.

If an employer, landlord, union, or service provider is discriminating against you, you might be able to convince them to follow the Human Rights Code. This is important because, as time passes, people can forget details of events.

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Keep copies of any emails, text messages, or other written communications you have with the employer, landlord, union, or service provider. You might want to get legal advice before speaking to your employer, landlord, union, or service provider.

Employers, landlords, unions, and service providers have a duty to accommodate you. For example, if you have a need that is related to your religion, you have to show that you have a sincerely held belief that is of religious significance to you.

You are expected to make reasonable efforts to look for childcare options that don’t interfere with work. You might have to share information about the options you looked into, such as hiring a babysitter or finding a daycare that is closer to your workplace.

It might be undue hardship if the only solution available would cost too much or would cause a serious risk to the health or safety of others. Employers, landlords, unions, and service providers cannot just say that accommodation would cause undue hardship.

They must use evidence to show why accommodation is too expensive, why there is not enough money, or what the health and safety concerns are. Whether the cost of accommodation is undue hardship might depend on the size of the organization.

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Negative responses from employees, tenants, or service users' customer preference or other third-party preferences contracts and collective agreements business inconvenience (unless it would amount to undue hardship because of other factors like cost) When figuring out the deadline to take a legal step, the time between March 16 and September 14, 2021 does not count.

If you think an employer, landlord, union, or service provider has discriminated against you, you can apply to the Human Rights Tribunal of Ontario. After you file your application, your employer, landlord, union, or service provider will have a chance to respond.

If you can’t resolve your issues, there will be a hearing where a Tribunal member will decide if you were discriminated against. It is very important that you file your application with the Tribunal within the one-year period.

Many people wrongly think that discrimination does not exist if the impact was not intended, or if there were other factors that could explain a particular situation. Example: An older man applies for a job at a trendy women’s clothing store.

The young woman who interviews him finds him pleasantly similar to her favorite grandfather and tells him this as a compliment. Later, the man is told that he does not have the right qualifications, and that the person hired had “more energy” and could relate better to the mainly female clients.

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It is a principle of human rights that persons should be judged on their individual attributes, skills and capabilities, rather than on stereotypes, prejudice or assumptions. Negative attitudes and stereotypes may lead to harassment and discrimination, and affect a person’s ability to both get and succeed in a job.

And refer to a way of thinking about other persons based on negative stereotypes about race, age, sex, etc. Therefore, it is important from a human rights perspective to address acts of discrimination and also ageist, sexist, racist, etc.

When asked to identify discrimination, many people think only of situations of open or “overt” harassment. This type of discrimination generally arises from negative attitudes and biases relating to that ground.

Discrimination exists when rules, standards or requirements that appear to be neutral have a discriminatory impact on people identified by the Code. Example: The head of a company instructs the organization’s receptionist not to take applications from job seekers from a certain racial or ethnic background.

Individual acts themselves may be ambiguous or explained away, but when viewed as part of the larger picture, may lead us to think that discrimination based on a ground in the Code was a factor in how the person was treated. The woman feels that the interviewer assumed that she was a lesbian based on aspects of her gender presentation, such as her hairstyle and clothing.

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Altogether, the evidence showed that there were irrelevant references to her race during interviews and/or discussions about transfer opportunities. Black teachers who asked for equitable practices were told “not to expect things to change overnight.” Transfer and promotion decisions were influenced by considerations of race.

You may need to investigate and analyze the total context of the alleged behavior, comment or conduct. Discrimination based on a Code ground may be found even if there were other legitimate reasons for decision or treatment, as long as it was one of the factors.

Being excluded from formal or informal networks, such as after-hours get-togethers or office parties being denied mentoring or developmental opportunities such as secondments and training that are available to other people difference in management practices, such as excessive monitoring and documentation or deviating from written policies or standard practices disproportionate blame for an incident being assigned less desirable jobs or duties. Discrimination may be found to occur even when there has been no overt or implied reference to a Code ground.

However, if comments linked to a Code ground are made, they can be further evidence that discrimination has been a factor in the way someone is treated. Similarly, a finding of discrimination may be made when someone makes negative comments about a person advocating for human rights protections or equitable treatment.

Systemic discrimination refers to policies or practices that appear to be neutral on their surface but that may have discriminatory effects on individuals based on one or more Code grounds. People who do not attend these events are less successful at building the internal networks that lead to promotions.

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Patterns of behavior, policies or practices part of the social or administrative structures of an organization position of relative disadvantage created for persons identified by the Code. Workplace rules, policies, procedures, requirements, qualifications or factors may not be openly discriminatory, but they may create barriers to achievement and opportunity.

Example: A workplace introduces a new attendance management program that allows employees to take six days off per year. The program provides for disciplinary sanctions, up to and including termination, for each extra absence, regardless of the reason.

As a result of this test, the rule or standard itself must be inclusive and must accommodate individual differences up to the point of undue hardship. Reprisals for (a) claiming or enforcing a human right, (b) refusing to discriminate directly or indirectly, or (c) rejecting sexual advances or solicitations are violations of the Code.

Employees who seek accommodation related to grounds such as creed, disability or family status should not be treated as less valuable or less committed to their work as a result. Example: An employee quits her job after finding a new one and making a sexual harassment complaint under the Code against her former employer.

Example: An employee believes that he was given an unfair performance appraisal and passed over for skills upgrade training because he is older than other workers in his department. Example: Women in a company approach a manager in the human resources department with allegations of sexual harassment by the president.

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As a result of his involvement in the women’s sexual harassment claims, the president suddenly fires him. Subsection 5(2) of the Code states that: Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, color, ethnic origin, citizenship, creed, age, record of offenses, marital status, family status or disability.

Example: An employer makes many sexual comments to a female employee of mixed Métis and Black ancestry. She was exposed to harassment based on both race and sex because she was a young woman the employer could assert economic power and control over.

For example, a White male supervisor might not take issue with being referred to as “the Chief.” To an Aboriginal person, however, the term may be very insensitive. In other cases, conduct or comment may not on their face be offensive, but the harasser should still reasonably know that they are unwelcome because of how the other person reacts.

These are all common ways for a harassed employee to keep some form of personal power in a vulnerable situation, to regain favor or just to get by. Instead, he copes by laughing it off and saying, “Yeah, that’s a good one.” If the comments ought to be known to be unwelcome, this would amount to harassment even though the employee has not objected.

To assess these situations accurately, you will need to apply the subjective and objective elements of the test and be aware of the power dynamics that are happening. In this workplace culture, it would be “career suicide” to object or show any sort of disapproval of such comments.

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Instead, Bob’s staff respond by laughing and teasing him about his British heritage and receding hairline. In effect, employees cannot disagree with his comments because of the workplace culture created by Bob, and condoned by the other senior executives.

Example: In a workplace, the only gay employee is repeatedly made the brunt of practical jokes and is ridiculed by his co-workers for no apparent reason. Management has the responsibility to prevent and address situations that may allow harassment to develop or continue.

Members of a group protected under the Code who are not the specific targets of a discriminatory comment or action may also have a right to bring a complaint. Example: A Chinese woman works in a bakery where racial slurs and stereotypical language are common in the kitchen.

There should be objective facts to show that the comments or conduct result in unequal or unfair terms and conditions and an infringement of the Code. Management has the responsibility to prevent and address situations that may create a poisoned work environment.

A workplace that allows a poisoned environment to develop or continue may be the subject of a human rights claim. Recent case law has indicated that sexual harassment may also be a form of discriminatory treatment under section 5(1).

Research has shown that sexual harassment often involves misuse of power and dominance, usually escalates over time, and is commonly known to exist within workplaces where it occurs. Example: A female graduate student has newly arrived as a refugee and is invited to discuss the possibility of working with a particular professor.

Twice the meetings take place at the professor’s home in a sexualized environment including wine, romantic music, intimate discussions of a personal nature, and compliments on the woman’s attractiveness. One significant incident may be offensive enough to be considered sexual harassment or create a poisoned environment (see above).

If a human rights claim arose due to this one instance, it would not amount to sexual harassment or a poisoned environment. Example: A manager repeatedly comments on a female staff member’s appearance during an important business meeting.

In this case, the comments were clearly unwelcome and would amount to sexual harassment even though the woman has not overtly objected. Employers are also expected to prevent and address sexual harassment of employees by others they come into contact with in the course of doing their jobs.

Example: A client repeatedly makes sexual jokes about one of the female trainers at a gym. When she complains to the gym manager, he tells her to “lighten up” and does not take any action to stop the harassment.

The following is not an exhaustive list, but it can help you identify what could be sexual harassment or inappropriate gender-related comments and conduct: Gender-related comments about an individual's physical characteristics or mannerisms unwelcome physical contact suggestive or offensive remarks or innuendos about members of a specific gender propositions of physical intimacy gender-related verbal abuse, threats or taunting leering or inappropriate staring bragging about sexual ability offensive jokes or comments of a sexual nature about an employee, client or tenant, including those sent by e-mail display of sexually offensive pictures, graffiti, or other materials, including on a computer questions or discussions about sexual activities' paternalism based on gender, which a person feels undermines his or her self-respect or position of responsibility rough and vulgar humor or language related to gender.

Example: A woman in an office transitions from female to male and is exposed to derogatory comments during this process. This employee is protected by the Code, which prohibits harassment and discrimination linked to gender identity.

The right to be free from unwelcome advances or requests for sexual favors extends to actions made by a boss, supervisor or other persons in a position of power. Sexual solicitation or advances can also happen between co-workers where one person is in a position to grant or deny an employment-related benefit to the other.

Example: A male employee is denied a promotion because he refused a sexual proposition from his manager. The Code requires that the terms and conditions of the workplace, or the functions of a job, be created with a range of abilities and people in mind.

This means that employers must do what is necessary to make sure that people protected by the Code are able to take part equally and with dignity in the workplace. The Code also requires that workplace or job rules and conditions be modified as needed to meet the duty to accommodate, subject to the standard of undue hardship.

However, it has been addressed in most detail in Commission policies on disability, creed, age, sex (pregnancy and breastfeeding) and family status. Some kind of operating rules, policies and procedures may be needed for business reasons, such as to comply with heath and safety legislation.

The Code sets out only three factors for deciding whether accommodation would cause undue hardship: cost, outside sources of funding, and health and safety. Example: An employee asks to use her sick days to care for her son as accommodation because of her family status.

Racial profiling is a form of stereotyping based on preconceived ideas about a person’s character. It is discriminatory for decisions to be based on presumed characteristics instead of unbiased assessments of a person’s behavior.

Example: An employee’s computer is monitored because he was born in Egypt and is therefore suspected to be a security risk. Although his actions may have broken a work rule about computer use, this only came to light as a result of racial profiling.

To protect the other employees from violence, the employer bans him from the workplace until the situation is fully investigated. A finding of racial profiling may be made even where race or another race-related Code ground is only one factor in the alleged conduct.

If the employer took more severe action against the Black employee because this was his second time and because he was presumed to be more violent because of his race, this would still amount to discrimination.

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