Indirect discrimination refers to situations where a company policy, practice, provision or rule places people with shared personal characteristic or someone personally at a disadvantage. It occurs when a particular group of people is put at a disadvantage by company policies or practice which applies to everyone.
Employees might face indirect discrimination in the workplace because of following personal attributes:
- Sexual orientation
- Skin Color
- Mental or physical disability
- Genetic Information
- Relationship to someone who may be discriminated against
- Pregnancy or Parenthood
Direct and indirect discrimination – What’s the difference?
An employer may discriminate an individual because of his or her personal characteristics. This is direct discrimination. For example, your employer excludes you from a training course because she thinks you’re too old.
When the company policy or practice that applies to everyone is discriminatory against some individuals, it is indirect discrimination. For example, if your workplace has a dress code or rules on appearance which applies to everyone, it may indirectly discriminate against you if you follow a particular religion or are genderqueer.
A company practice or policy includes employment criteria, workplace arrangements, conditions, qualifications, provisions etc. These apply to all the employers of a company in the same way.
For indirect discrimination to occur, the individual claiming discrimination must be personally at a particular disadvantage. It is not enough for them to say that they have been discriminated because of the protected personal characteristics.
Also, the employer has to treat the individual less favorably than another individual who does not possess the same personal characteristic. If an employer treats all of his employees unfairly, employees cannot argue that they have been discriminated against.
Examples of indirect discrimination in the workplace
- Employees may be required to work on Saturdays as per company rule. Jewish employees who observe the Sabbath may not be able to work on Saturdays, which puts them at an disadvantage.
- A company has a policy that allows only employees with a postgraduate qualification to be promoted. Although this rule applies to everyone, it disadvantages younger people who are less likely to have that qualification (indirect age discrimination).
- Employees are required to work full time as per company criteria but female employees, who are the primary caregiver to their children, may need to work part-time or have flexible work hours (indirect gender discrimination).
- Employees are required to do night shifts according to company policy. This rule applies to everyone in the workplace but a person who needs nightly dialysis for kidney failure is discriminated by this rule (indirect disability discrimination).
- Brochures and pamphlets containing information about workplace health and safety in a factory is printed only in English. Employees whose first language is not English may be at risk.
Can indirect discrimination be justified?
Employers may be able to justify indirect discrimination by showing that their policies and rules can be objectively justified for example, for health and safety reasons. Employers must also be able to show that the unfavorable treatment was “a proportionate means of achieving a legitimate aim.”