Wednesday, 15 September 2010

The Equality Act: it's supposed to be flawed.

I got a reply to the letter to the Equalities Office that I sent back in June, asking for the rationale and more details behind some of the unpleasant exceptions in the Equality Act 2010.

Here's the reply

Thank you for your email of 8 July 2010 regarding the Equality Act 2010. I am sorry you have had to wait so long for a reply.

I will respond to the questions in the order you raised them.

Sexual orientation: section 12

We have been provided with no evidence that there is a need for people who identify as asexual to be specifically protected by discrimination law. The Equality Act will, however, provide protection to asexual people who are directly discriminated against because they are perceived to be heterosexual, gay or bisexual.

Dual discrimination: section 14

We have carefully considered which protected characteristics should be included in a claim for dual discrimination. We consider that we have adopted an approach to implementation which is practical, provides sufficient protection and does not impose a disproportionate burden. We are not aware of evidence that claims of discrimination which involve marriage and civil partnership or pregnancy and maternity are failing for lack of a remedy for dual discrimination.

As you may be aware, Ministers are currently considering how certain provisions of the Act, including the dual discrimination provisions, can be implemented in the best way for business and for others with rights and responsibilities under the Act.

Harassment: section 26

Discrimination because of marriage and civil partnership is prohibited in order to address very narrow circumstances in which some employers still adopt policies which may discriminate against married people or civil partners. We have no evidence of people being harassed at work because they are married or in a civil partnership. With regard to pregnancy and maternity, any harassment that a woman is subjected to will be covered by the protection against harassment related to sex. Specific protection against harassment related to these protected characteristics is therefore unnecessary and would add no value.

Harassment: sections 29(8); 33(6), 34(4), 35(4), 85(10); and 103(2)

The above-mentioned sections of the Act disapply the definition of harassment at section 26. This disapplication however does not mean that a person is left unprotected, but they are protected differently. Where harassment is not prohibited explicitly - as is the case for sexual orientation and religion or belief outside work - protection will be provided through the provisions prohibiting direct discrimination by subjecting a person to a detriment. Detriment can include unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

Harassment: section 85(10)

Section 85 of the Act deals with the treatment of schoolchildren and there would be no practical benefit to extending harassment protection for children in schools. We believe that the real problem in schools is bullying between pupils, so what we need to focus on is putting a stop to bullying by children of other children. Extending protection against harassment related to gender reassignment, religion or belief, or sexual orientation to children in schools will not do this, since the relationship between one child and another is not caught by discrimination law.

In any situation that we can envisage, it would be unlawful for anyone working in a school to bully a pupil because of their sexual orientation, gender reassignment or religion or belief. And if a teacher were to ignore or condone such bullying of pupils, it would be unlawful discrimination.

General Qualifications Bodies: section 95

As mentioned above, protection against marriage and civil partnership discrimination applies to employment only.


I feel it is important to make it clear that we consulted fully and widely on our proposals for what is now the Equality Act 2010. As a result we believe we have identified where harmful discrimination is occurring. The Act aims to tackle such discrimination where there is evidence that it occurs and where legislation is considered to be a proportionate response to that problem.

I hope this is helpful.

As I said earlier, I could understand that if the act was structured in such a way that provides no protection except that which is explicitly stated to apply, that it might be easy through privilege to accidentally miss out some situations, and I now add to that that it might be considered understandable in the interests of brevity and clarity not to cover forms of discrimination where there is little evidence that they occur.

However, this Act in many cases sets out blanket protections and then puts forwards exceptions to them. To create an exception adds to the length of the Act and reduces from its clarity. Conversely, leaving the exception out is harmless. If no-one ever does discriminate in that way on those grounds, then no cases will be brought. Because of the way the Act is written, the argument against cluttering up the statute books with unnecessary laws doesn't really apply.

This is an argument against including eye colour in the list of protected characteristics (a characteristic I am personally very glad does not need protection in practice), not an argument for explicitly excluding protected characteristics from certain forms of protection.

I find their reasoning that harassment is always direct discrimination to be highly implausible - if it was automatically direct discrimination, there would be no need for the harassment clause at all. Furthermore, an explicit exemption could be taken (and elsewhere in the Act obviously is!) to override the general case. For example, the Act allows people casting for a play to discriminate based on gender or race where the script requires it (the Explanatory Notes give the example of Shakespeare's Othello). A white woman would be treated less favourably than a black man by most directors casting Othello, and this is a rare form of reasonable discrimination, and there is therefore wording in the Act to allow this despite it meeting the basic definition for direct discrimination.

Similarly, I'm fairly sure that the exclusion of asexual people owes more to the wording being constructed by people who hadn't considered their existence than any deliberate assessment that asexual people are not subjected to sufficient discrimination that they need legal protection.

So, here's my follow-up letter:

Thank you for your reply, which mostly answers my questions. I have a further questions regarding the harassment exemptions, where I remain unconvinced that the exemptions are as harmless as you claim.

It seems to me that the harassment protections must provide some additional protection in some case over and above that provided by the various other parts of the Act, or there would be both no need to include them in the Act and no need to deliberately place particular exemptions into the Act.

The explanatory notes for section 85, for instance, distinguish between direct discrimination and harassment. The example given for harassment could equally apply to homophobic comments made by teachers (even if not directed at any particular pupil) but the exception suggests that they did not.

For a real example: a GCSE biology teacher when discussing genetics refers to a particular genetic pattern which research suggests has been connected to homosexuality, describing its effects as "makes you a [homophobic slur]" while making an associated hand gesture. The teacher does not otherwise treat gay students less favourably (not least because no-one in the class is "out" and so he has no way to know)

A pupil might reasonably feel that this has the effect described in 26.1.b.ii but would I think find it very difficult to claim direct or indirect discrimination if this was the only form of discriminatory behaviour the teacher carried out. Nevertheless this behaviour could be extremely harmful - especially as a pattern of behaviour at the school - and I can see no reason not to forbid it just as equivalent behaviour based on gender, race or disability is forbidden.

It seems rather implausible to me - given that every other exception in the Act is clearly intended to set out situations in which the general protections of the Act do not apply - that the protections of the harassment clause remain even when that clause is specifically excepted.

It seems clear that the intent of the Act, both in the wording of the Act and as expressed in the Explanatory Notes, is that harassment, provided that it is not accompanied by less favourable treatment of other forms, is legal in these specific cases.

My further questions based on this are:

If it is the case that any behaviour constituting harassment would be unlawful because of another part of the act, in the cases where there are exemptions, then why are the exemptions so inconsistent. Specifically:

1) Why is there a harassment exception for sexuality and religion for every matter except employment, where there is not? If it makes no difference to the level of protection, only the route taken to guarantee it, why is employment different?

2) Similarly, why is there only a harassment exception for gender identity / transphobia in certain cases relating to school pupils but not in other cases?

3) Similarly, why is there (rightly) no harassment exception for gender, race or disability, if it really has no functional effect on the legality or otherwise of discriminatory actions?


4) Does the Equalities Office have legal advice that suggests that the harassment clauses are essentially entirely redundant, and if so, could you provide me with a copy of this advice?

It'll be interesting to see what they reply, especially for the fourth part. My assessment of the Act as a whole as far less useful than it should be remains unchanged.