The Black Lives Matter movement, accelerated by the murder of George Floyd, sparked a global awakening to racial disparities in society. Impassioned protests were promptly followed by donations to non-governmental organisations and corporate statements of allyship. Over nine months on from George Floyd’s death in May 2020, we explore what long-term impact this epiphany could have for employers, the workforce, and employment law.
The impact of the Black Lives Matter movement in 2020 was profound, and it is likely to have a long-lasting impact in many aspects of society. In the employment context, employers will need to be more cognisant of racial issues, seek to address them, and be bold. It is now a societal expectation that major employers take the lead in striving for equality within their workplace, and we anticipate that expectation to remain for many years to come with respect to equality for the black community.
Equal opportunities monitoring
One of the immediate impacts of the increased focus on black equality, and inclusion and diversity in general, is a noticeable rise in employers seeking to collect demographic data from their employees and applicants. Employers want a greater understanding of the demographic make-up of their workforce in order to help them implement tailored measures to achieve equality, as well as to monitor their effectiveness. With respect to black employees and applicants, effective equal opportunities monitoring helps employers to spot if, and where, black people are experiencing disproportionately worse outcomes within the organisation, to explore the possible root causes, and to put in place measures to address them
Employers will need to comply with the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 with respect to its collection of race and ethnicity data. This requires employers to identify a lawful basis for the collection of such data and take various compliance steps. Employers will also need to consider the categories of ethnicity data they collect in order to ensure they obtain an accurate picture of the ethnic make-up of the workforce. Most employers in the UK rely on the ethnic categories used by the UK government in its census. With respect to global data collection exercises, employers should exercise caution given the vast range of local law approaches to this issue. For example, law in France and Spain significantly restricts an employer’s ability to collect ethnicity data.
Collection and analysis of ethnicity data will become increasingly important for employers considering voluntary ethnicity pay gap reporting, and for those anticipating mandatory reporting on the horizon, which we consider further below.
Ethnicity pay gap reporting
The discussion on whether the UK government should introduce mandatory ethnicity pay gap reporting predates the events of 2020. It was one of the primary recommendations from Baroness Ruby McGregor-Smith’s review of race in the workplace in 2017. This report was followed by a public consultation by the government in 2018. A number of organisations have reported their ethnic pay gap voluntarily, but there has been little update from the government with respect to mandatory reporting since the public consultation closed in early 2019.
The renewed focus on ethnic disparities in 2020 has turned public attention firmly back to ethnicity pay gap reporting. In December 2020, news stories alleged that a leaked government report revealed that 73% of those responding to the public consultation supported mandatory ethnicity pay gap reporting for organisations with more than 250 staff, mirroring the gender pay gap reporting requirements.
A tricky issue peculiar to ethnicity pay gap reporting, is the categorisation of ethnic groups and the impact of aggregated data. If categories are too broad, the value of the reporting could be impacted with nuances particular to specific ethnicities being lost. For example, the most recent Office for National Statistics (ONS) pay gap report showed that Pakistani workers earned 31.4% less than Chinese workers on average, when comparing hourly median pay. It is likely that these groups would be placed in the “Asian” category if a broad categorisation approach were taken. On the other hand, too narrow a categorisation could result in confidentiality issues with individuals being more easily identifiable within an organisation. This appears to be the key issue holding up a response from the government. Nevertheless, it seems clear that businesses can expect mandatory ethnicity pay gap reporting in some form on the horizon.
Organisations that wish to take a global approach to categorisation will also face challenges, not only because of the limitations on collecting ethnicity data, but also because of the differences in ethnic make-up in different jurisdictions. This means that the relevance of certain categorisations will differ, for example, in the US it would be important to include Hispanic/Latin. Categorisation, therefore, will need to be considered in a local context, and aggregation of global data may be less meaningful.
Positive/affirmative action vs. positive discrimination
One of the most pronounced effects of the focus on black equality in 2020 has been a call from employees, consumers and the wider society for corporations to back up statements of allyship with bold and tangible action. This has brought about a renewed focus on positive action. Employees want their employers to take targeted steps to address underrepresentation or disadvantage experienced by black employees and applicants. The Equality Act 2010 permits positive action that would otherwise constitute unlawful discrimination, but the scope of the rules is uncertain, meaning employers who do undertake the more radical positive action initiatives tend to be those willing to accept the risk of legal challenge and/or backlash from those who perceive such measures as unfair to non-black employees and applicants.
Despite the risk involved, some employers have sought to take such steps, launching internships and apprenticeships exclusive to black applicants, providing scholarships to black students and internal training opportunities for black employees. The initial response to these initiatives has been broadly positive, and we expect more organisations to participate in positive action in the context of black equality in the coming months and years. Our earlier article in this series takes a detailed look at the positive action provisions of the Equality Act 2010 and how employers can navigate them.
Employers seeking to implement positive action measures globally will find that positive action with respect to black equality is readily understood and accepted in the UK and the US. However, the picture is different in many mainland European countries and although many European countries have legal frameworks permitting positive action, such frameworks have traditionally been relied upon with respect to gender rather than race. Positive action for black employees and applicants may be seen as unusual from a cultural perspective in some European countries, resulting in a higher risk of backlash against an employer. On the other hand, organisations are increasingly seeing such risks as the cost of strong leadership in the equality context, and may be willing to stand out as counter-cultural in this respect if it actually reinforces their brand and/or organisational culture. It remains to be seen whether, despite these risks, employers will be willing to replicate their positive action measures to their workforce practices in mainland Europe and beyond.
Organisations have also sought to increase awareness of unconscious bias through targeted anti-racism training. In addition to unconscious bias, such training is focused on educating leaders and the rest of the workforce on behaviours that hinder inclusion, retention and progression of ethnic minorities in the workplace.
Interestingly, the UK government issued a report in December 2020 stating that “there is currently no evidence that this training changes behaviour in the long term or improves workplace equality in terms of representation of women, ethnic minorities or other minority groups.” In fact, the report suggests that such training can provoke negative reactions and exacerbate biases. As a result, the UK government has committed to phasing out unconscious bias training within the civil service, and has encouraged other public sector organisations (e.g., police and the NHS) to do the same.
It appears that unconscious bias remains prevalent in the private sector, and we are seeing more organisations integrating anti-racism training within their existing unconscious bias training framework. A recent UK Employment Appeal Tribunal case has shown that anti-bullying and harassment training that includes training on racist remarks, “jokes” and stereotyping remains imperative irrespective of varying views of its effectiveness. The case highlighted the importance of regular and comprehensive training if employers wish to rely on the “reasonable steps” defence, which is available under the Equality Act 2010 for employers that take reasonable steps to prevent discrimination in the workplace. The employer in that case was unable to rely on the defence given the last anti-bullying training the perpetrator received was nearly two years before the discriminatory conduct and was lacking in several key respects. The case was also a reminder that attention should be paid to the responsibilities of managers to address issues, and the important role that “bystanders” can play in speaking up when they observe bias or racist remarks.
Another undoubted impact of the Black Lives Matter movement is an increased willingness of employees to speak out on issues of race, including in relation to historical complaints that they may not have had the confidence to raise previously. Attitudes and instances of race discrimination that may have been tolerated by black employees in the past, are increasingly resulting in grievances and race discrimination claims. As a result, these complaints tend to span several years, in some cases involving individuals who have long left the organisation.
The impact is similar to that of the #MeToo movement; employers can take their learnings in dealing with grievances and claims regarding historic sexual harassment allegations and apply them to historic cases regarding alleged race discrimination. Employers should investigate alleged instances of discrimination, and carefully consider the evidence (or absence of it) in context, particularly as actions and omissions are rarely overtly discriminatory. Employers should also be aware that when investigating race discrimination allegations, managers may be reticent to label an employee’s behaviour as “racist” in the absence of conclusive evidence, given the stigma that this entails and that behaviour may be the result of ignorance rather than intent. However, managers should be advised to interpret the facts that are available, and come to a reasoned conclusion, rather than conclude there is “no case to answer”; such a finding is rarely a satisfactory outcome for the complainant or the accused (meaning it can lead to poor employee morale, legal claims and possibly negative publicity, if leaked).
In cases where an employer is unable to uphold an allegation of race discrimination, employers will need to pay particular attention to how that outcome is communicated. The Black Lives Matter movement has reignited discussion regarding “institutional racism,” which stems from the Macpherson report regarding the Metropolitan Police Force’s handling of the Stephen Lawrence murder investigation. The report found that unwitting prejudice, ignorance, thoughtlessness and racial stereotyping could lead to an organisation, on a collective level, failing to provide an appropriate service to people because of their ethnic origin. Employers who unreasonably dismiss complaints of race discrimination and/or require too high a burden of proof, are at risk of being accused of collectively failing to recognise and address instances of discrimination due to such “unwitting prejudice” or “thoughtlessness.” To mitigate this risk, employers may want to avoid communicating in a way that could be seen as delegitimising an employee’s concerns, and seek to address perceptions of bias through concrete recommendations (e.g., training and mediation) even where the allegations are not upheld.
Pro-black employer policies
Employers have also taken to “pro-black” workplace policies to increase inclusivity for black employees, particularly with respect to dress and hair. Afro-textured hair and its styling have long been a key symbol of identity for many within the black community. However, typical Afro hairstyles, such as braids, twists and dreadlocks have traditionally been perceived as “unprofessional” in the Western (predominantly white) corporate environment. For example, there have been high profile cases of women being asked by employers and recruitment agencies to remove their braids or straighten their hair to avoid missing out on a job opportunity.
Any provision, criteria or practice mandating a certain hairstyle could be unlawful, indirect race discrimination under the Equality Act 2010 if it puts an ethnic minority at a particular disadvantage and it is not objectively justified. However, in many organisations expectations regarding dress and hair are unwritten. This means the risk of a claim only materialises upon enforcement of the unwritten practice. To combat this, many organisations, including Unilever and Marks and Spencer, have signed up to the Halo Code. The Halo Code explicitly protects employees who come to work with natural hair and protective hairstyles associated with their racial, ethnic and cultural identities, and it sends an important message to employees about the organisation’s culture of inclusion of the black community within the workplace. As employers seek to achieve greater inclusion and diversity, we anticipate more employers committing to such policies. More broadly, it’s a reminder to employers of the need to be aware of and critically assess the impact of both written policies and unspoken expectations on ethnic minority employees or other protected characteristics.