Diversity is fashionable. But a new package of equal opportunity laws will
test how far employers are prepared to go. Stephen Overell explains the new
Working life has come a long way since William Whyte’s 1956 classic The
Organisation Man. Rather than corporations shoehorning people into bland
conformity, it is hard to pick up a newspaper or attend a conference without
someone extolling the value of diversity, how employers must bend over
backwards to accommodate individual difference, and aim to encourage everyone
to fulfil their potential whatever their race, gender, sexuality or creed.
‘Equality’ has a dated, anti-competitive kind of ring to it; ‘diversity’ is
something businesses can outdo each other on. Diversity is the new conformity.
"An open, objective and fair organisation is not one that downplays or
elevates group differences, but one in which difference can thrive," wrote
Rajvinder Kandola and Johanna Fullerton in a paper in 19981.
Language of diversity
The language of diversity is now so thoroughly orthodox that not being in
favour of it is like not being in favour of smiling. Good. And yet governments
show no inclination to take the sentiments on trust – any more than in the days
when employers were disputing the need for the Equal Pay Act of 1970, the Sex
Discrimination Act of 1975, or the Race Relations Act of 1976.
Very soon, three new aspects of difference will be granted the protection of
the law. By the end of 2003, Britain – and the other EU states that don’t
already have it – will have legislation banning discrimination on the grounds
of sexual orientation and religion; and by 2006 on the grounds of age2.
Evidently, business endorsement of diversity does not ensure minimum standards
of social justice in ministers’ mind.
Irritating as this may be for HR departments, it is hard not to have
sympathy for the politicians. Diversity, so often presented as "the next
evolutionary step" for equality policy, can often sound like hot air;
there is an abundance of evidence that exclusion persists as a group phenomenon
in employment – something that the hierophants of diversity sometimes appear to
Sexuality is a good example. Approximately 44 per cent of gay and lesbian
employees have suffered discrimination at work, such as harassment3. Employers
are rather like the patient wrongly diagnosing his own good health. Which is
why more laws on equality are likely to help give substance to many of the more
gassy proclamations on diversity.
If employers mean what they say about valuing difference, most of Towards
Diversity and Equality, the Department of Trade and Industry’s consultation
document on how to implement the European Employment and Race Directives4
(closes 29 March 2002) into UK law, will be non-contentious.
First, the case for an overall equality commission, superseding the three
existing bodies and bearing responsibility for guidance across the whole
equality agenda, now looks overwhelming. In Northern Ireland, one Equality
Commission has existed since 1 October 1999. The US has the Equal Opportunity
Employment Commission, which covers multiple different forms of discrimination.
Second, protection against discrimination on the grounds of sexual orientation
is practical common sense. France, the Netherlands, Ireland and the US have had
equality laws covering homosexuality for some time.
Third, parity for different religions is also sensible in principle,
although some bizarre possibilities could emerge. What, for example,
constitutes a religion? Time off for pagan observance could be on the way.
These are the small issues. The contentious bit for employers is what
happens on age discrimination; hence the longer timetable.
There is general agreement that the skills of elderly workers are often
squandered and that stereotypes about what people can achieve at different
stages of their lives are damaging; general agreement that the government’s
Code of Practice on age has failed. Gerontophobia has never been more alive.
But if the new law is going to serve the interests of diversity, it means more
than deleting "young" and "hungry" from adverts.
The question of mandatory retirement ages is central. The CBI favours retention.
Yet the case for scrapping them is surely far stronger. In an age when people
are healthier and living longer than they once were, retiring people en masse
when they reach a certain age seems wrong; they should have the liberty to work
for as long as they wish to and for employers to use their skills. This would
mean a dramatic increase in flexibility; employers and employees would have to
agree end-dates; succession planning, pensions and careers would have to be
rethought. Yet the notion of a retirement age is incompatible with valuing
difference in the 21st century. Nationwide, B&Q and Marks & Spencer are
in favour of putting it out to grass.
Credit where credit’s due
The age question is also intimately bound up with reward. Employers choose
to reward loyalty. Yet loyalty is not the same as turning up for work year in,
year out. If the two cannot be clearly distinguished, reward strategies – and
redundancy policies – could be indirectly discriminatory against young people.
Those who stay in jobs for a long time are least likely to be loyal and most
likely to be dissatisfied5. The time is ripe for clear thinking on what the
proper relationship between age and commitment should be.
Outlawing age discrimination is unlikely to be a small matter in financial
terms. In the US, which has had an age law for several years, a fifth of all
discrimination claims are based on age. Between 1988 and 1995, people who
successfully sued for age discrimination were awarded an average of $219,000
(£155,150) compared to $147,799 for race and $106,728 for sex discrimination6.
More equality laws will spook some people: discrimination claims went up by
21 per cent in the UK last year7. But like it or not, it will probably be good
for diversity. A greater emphasis on diversity and flexibility is the only
realistic response to the prospect of an expanded equality agenda. If
celebrating difference means more than hot air, a radical shake-up on age
discrimination is the only way forward.
1. Diversity in Action: Managing the Mosaic, R Kandola and J Fullerton, IPD,
2. Implementing the Equality and Race Directives, Equal Opportunities
Review, Issue 101, 2002, IRS; see www.xperthr.co.uk
3. Straight Up! Why the Law Should Protect Lesbian and Gay Workers, TUC,
4. Towards Equality and Diversity, DTI, 2001
5. Loyalty Rules, F Reichheld, Harvard Business Review, 2001
6. Employers Forum on Age: www.efa.org.uk
7. Acas, press release, 9.9.2001
Join the Xperts take a free trial
By calling 01483 257775 or e-mail: [email protected]
Research viewpoint is produced by XpertHR, a web-based information service bringing together leading information
providers: IRS, Butterworths Tolley and Personnel Today. It features a new
Butterworths Tolley employment law reference manual, a research database and
guidance from 13 specialist IRS journals, including IRS Employment Review.