“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” 

-Late Justice Ruth Bader Ginsburg.

The knee on George Floyd’s neck was visible, and hence its repercussions reverberated through the entire world, a.k.a. #Black Lives Matter. Sometimes, the feet on the indirectly discriminated people’s necks are masked behind a practice, policy, or rule. And hence the actions are justified, and no one is horrified!

Your organization’s policies may be discriminatory too

Contrary to popular thinking, treating all employees the same way, as per the organization’s policy, can affect some of them negatively. An example of this Indirect Discrimination was in the news recently, which caught my fancy. The Supreme Court showed the spotlight on it by recognizing it in India’s Armed Forces, knowingly or unknowingly marginalizing the women officers for decades. (Lt. Col. Nitisha v Union of India, 29th Mar.2021)

Types of Discrimination

Discrimination can be of many types, such as Direct, Indirect, Positive, Negative, Affirmative, Structural, Cognitive, and more. This blog will try to tackle the most complicated type, Indirect Discrimination.

An example of Indirect Discrimination at the Workplace

The facts of the Armed Forces indirectly discriminating against women are also a bit complicated. Let us understand this concept with another more straightforward case. 

A company imposed a retrenchment policy, “last-in, first-out.” The employees who joined later would be the first ones to be cut back. This company had started hiring women only recently, and when it was time to make reductions, no prizes for guessing which gender suffered the most. (Australian Iron and Steel Co. v Bankovic)

Indirect Sex Discrimination

Sujata, post her maternity leave, requested part-time working hours because she did not want to leave her child with someone else. Her manager informed her that this was against the company policy. All other employees (primarily males) worked full-time, and the same rule would apply to her. 

Could Sujata have a case for Indirect Sex Discrimination?

The company policy seemed justified facially. But at a closer look, only the women were likely to be negatively affected. 

Management can justify Indirect Discrimination

Baroness Hale of the UK Supreme Court, in a judgment of 2009, said: “Direct and Indirect Discrimination are mutually exclusive. Direct Discrimination cannot be justified, whereas Indirect Discrimination can be justified……” 

But that does not make it reasonable or fair.

India’s apex court amply explained this concept in women’s short service commission officers’ demand for permanent commission equality. Beautifully stated by a bench headed by Justice Chandrachud, “The standards, which appeared neutral at the first blush, were deeply patriarchal, reflecting the mindset of the yore, and indirectly discriminating against women.” (Lt. Col. Nitisha v Union of India, 29th Mar.2021)

A Case of Direct Discrimination

“Mr. Vice President, I am speaking”

You probably heard Senator Kamala Harris stating firmly to Vice-President Mike Pence, “Mr. Vice President, I am Speaking", during the Vice Presidential Debate! This statement from the lady broke the internet because all the women who had ever been ‘#manterrupted’ rejoiced. The men who advocate equality joined in the applause, cementing the statement into history.

“Mr. President, I am not seated” 

You did not hear this statement by the EU leader, Ursula von der Leyen, the EU’s executive arm President, at the EU Summit.

Why? 

She did not speak up when recently, the Turkish President, Recep Tayyip Erdogan, left her standing. At the same time, the two other men took the two available chairs in the Turkish Presidential Palace’s Grand Room. It was a sorry sight!

#Speak-Up Culture begins with each woman Speaking Up

Sujata can only have a case for Indirect Sex Discrimination when first, women learn to speak up whenever someone directly discriminates against them. Then we can hope that the women will also start speaking up against the more knotty concept of Indirect Discrimination.

The Punch Line: This incident at the EU Summit occurred when the leaders were sitting (eh, the men were) to talk about Women’s Rights, among other issues.

PS: In her defense, she decided to “prioritize substance over protocol” by staying.

Focus on the effect of the policy on the employees

An inquiry into Indirect Discrimination should not look at the disputed conduct but its consequences. When the focus switches to the effects of the disputed action rather than the action itself, we are in the Indirect Discrimination territory. (Sujata’s example)

Rainmaker Training conducts policy audits for organizations. We can help suggest changes to the policy to make it more inclusive. A policy may also need improvements in gender-neutral language. The exercise can reveal gaps in a policy which could lead to Indirect Sex Discrimination. It’s important to plug these gaps before your organization unknowingly discriminates against a minority group.

A Speak-Up culture also begins with the management not trying to filter out the harsh truth of any form of discrimination occurring at the workplace. The good-to-great companies continually refine the path to greatness with the brutal facts of reality. (Good To Great, by Jim Collins)

Note: Late Justice Ruth Bader Ginsburg. Associate Justice, Supreme Court, United States. She might have quoted the words of Sarah Moore Grimke, but these words came to be strongly associated with RBG.

Author: Sumali Nagarajan

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References:

Indirect discrimination from Brighthr.com

SC to put laws, decisions to ‘indirect discrimination’ test by Dhananjay Mahapatra from Timesofindia.indiatimes.com

Anti-Discrimination Laws in India from Knowledge.leglobal.org

Why India needs a comprehensive anti-discrimination law from Livemint.com

Lt. Col. Nitisha vs Union of India: The Supreme Court Recognises Indirect Discrimination by Gautam Bhatia from Livelaw.in

Ursula von der Leyen left without a chair at EU summit in Turkey | Daily Mail Online

What Most People Get Wrong About Men and Women by Catherine H. Tinsley and Robin J. Ely from Hbr.org

Good To Great, by Jim Collins