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date: 01 December 2022

Equality of Treatment, Opportunity, and Outcomes: Mapping the Lawfree

Equality of Treatment, Opportunity, and Outcomes: Mapping the Lawfree

  • Alain KlarsfeldAlain KlarsfeldHuman Resources Management & Business Law, TBS Business School
  •  and Gaëlle Cachat-RossetGaëlle Cachat-RossetÉcole de relations industrielles, Université de Montréal

Summary

Equality is a concept open to many interpretations in the legal domain, with equality as equal treatment dominating the scene in the bureaucratic nation-state. But there are many possibilities offered by legal instruments to go beyond strict equality of treatment, in order to ensure equality of opportunity (a somehow nebulous concept) and equality of outcomes. Legislation can be sorted along a continuum, from the most discriminatory ones (“negative discrimination laws”) such as laws that prescribe prison sentences for people accused of being in same-sex relationships, to the most protective ones, labeled as “mandated outcome laws” (i.e., laws that prescribe quotas for designated groups) through “legal vacuum” (when laws neither discriminate nor protect), “restricted equal treatment” (when data collection by employers to monitor progress is forbidden or restricted), “equal treatment” (treating everyone the same with no consideration for outcomes), “encouraged progress” (when data collection to monitor progress on specific outcomes is mandatory for employers), and mandated progress (when goals have to be fixed and reached within a defined time frame on specified outcomes). Specific countries’ national legislation testify that some countries moved gradually along the continuum by introducing laws of increasing mandate, while (a few) others introduced outcome mandates directly and early on, as part of their core legal foundations. The public sector tends to be more protective than the private sector. A major hurdle in most countries is the enforcement of equality laws, mostly relying on individuals initiating litigation.

Subjects

  • Human Resource Management
  • Social Issues

Introduction

The concept of equality can be interpreted as a reformulation of the principle of non-discrimination in employment matters (Berg, 1964). In a first meaning, non-discrimination means not treating people differently based on one of listed prohibited criteria, such as gender, ethnic origin, age, or disability, and other criteria present in the legislation of most countries that are part of the Organisation for Economic Co-operation and Development (OECD). However, shortly after the notion of equal employment opportunity (EEO) started to gain traction, it became clear that, in order for equality to happen, one had to question strict equality of treatment and introduce some kind of difference of treatment, which may take different shapes. For example, for a company to afford to employ a person with mobility restrictions, it needs to put in place some accessibility equipment designed specifically for the type of restriction, such as a ramp, special elevator, dedicated parking space, and a properly equipped desk. This example shows one of the many ways how compensation for disadvantage involving some specific treatment has to be put in place in order to ensure proper equality of opportunity. Equality of opportunity (in employment or otherwise) is also sometimes differentiated from equality of treatment and equality of outcomes, which are other interpretations of the general principle of non-discrimination. The aim of this article is to provide an overview of what it may take to ensure non-discrimination as equality of treatment, while at the same time providing an overview of the many possibilities offered by legal instruments to go beyond strict equality of treatment, to ensure equality of opportunity and a reduction in outcomes gaps. A continuum of legislation is provided. At every stage, illustrations are drawn from legislation in specific countries.

A Typology of Equality Legislation

Inherited from the Enlightenment, equality is a general and overarching constitutional principle found in most legal systems, while earlier sources can be traced to the scriptures. France and the United States are the first countries that enshrined equality in their foundational legal bases. As mentioned in the Preamble to the U.S. Declaration of Independence: “All men are created equal” (National Archives, 2020). Article 1 of the French Declaration of the Rights of Man and the Citizen similarly posits that “men are born and remain free and equal in rights. Social distinctions may be based only on considerations of the common good” (Conseil Constitutionnel, 2002).

However, even though these sources have inspired modern declarations, such as the 1948 United Nations Declaration of Human Rights, it is evident that such “equality” left out, explicitly or implicitly, vast portions of the population. Explicitly, as only “men” were included in these early American and French proclamations of equality, and women were excluded. Implicitly, as the principle of equality not only excluded women, but also many other groups, as at the time that both of these declarations were issued, slavery was legally organized and flourished in both France and the United States.

Rather than a “right,” equality started out rather as a horizon to achieve, and left ample space for different interpretations. In this section, a typology for framing these interpretations is presented.

The typology originated from a comparative analysis drawing on international and comparative equality, diversity, and inclusion research (Haq et al., 2020; Klarsfeld, 2010; Klarsfeld et al., 2012, 2014, 2016, 2019). It can be presented as a continuum. The continuum represents stages that legislation may follow, from negative discrimination legislation to mandated outcome legislation.

Negative Discrimination

If laws are often thought of as a means to protect the weakest or redress injustices, it is worth bearing in mind that in most parts of the world in the past, and still in many parts of the world, and for many criteria commonly perceived as protected by legislation in developed economies, laws defined and still define norms of privilege, oppression, or subjugation. In this negative discrimination stage, laws indeed create a relative disadvantage for a certain category of the population.

Examples abound of such laws in the past: privileges of access to positions of prestige enjoyed by the French aristocracy prior to the French Revolution; privilege of economic ownership enjoyed by citizens of colonial states over the indigenous inhabitants of their colonies; segregation laws in the workplace in some U.S. states until the adoption of the Civil Rights Act in 1964 organizing the subjugation of African Americans; apartheid laws organizing segregated residence and workplaces in South Africa until 1994. In France, until 1965, a married woman could not seek employment without her husband’s approval (Bender et al., 2010), and until 1982, the age of consent for same-sex relationships was 18 years old (instead of 15 years old for heterosexual relationships).

Examples of such laws in the present include inferior rights of women in Saudi Arabia and other Middle Eastern countries, criminalization of homosexuality in Singapore, and in a large portion of Middle East and Asian countries. As of October 2019, same-sex marriage was legal in only 30 countries in the world, meaning that same-sex partners were not allowed to marry in all or part of about 170 other countries (Pew Research Centre, 2019). This is of consequence for employment rights as many entitlements such as healthcare benefits and parental leaves are predicated on the assumption that couples are married. Therefore, the denial of same-sex marriages carries forward with it the denial of such benefits to partners of same-sex couples in the said countries.

Removing discriminatory laws is therefore a stepping stone towards achieving equal employment opportunity for all. But the absence of negative discrimination laws does not equate protection from unequal treatment. It is just a legal vacuum.

Legal Vacuum

States may gradually remove their discriminatory laws, which is of course a necessary step to ensure equality of opportunity. However, there may be no specific protection until specific protections forbidding discrimination are put in place. Knowing that one does not face prosecution under discriminatory laws is an improvement of one’s condition, but that does not prevent ordinary entities (other than the state) from making one’s life miserable.

For instance, only from 1965 could women in France seek employment without having to request their husband’s approval. They were therefore subjected to a discriminatory law. However, even after 1965, many employers refrained from hiring women either in specific occupations deemed to be “masculine,” or at specific times of their reproductive life, arguing that they belonged with the domestic sphere and therefore they would not be able to exert significant responsibilities at work. There was little legal defense to challenge this. Only in 1983 was a law adopted that specifically addressed gender equality of treatment for access to employment, promotion, training, and working conditions (Bender et al., 2010). The period between 1965 and 1983 can be characterized as a legal vacuum as regards gender equality in employment matters. Discriminatory legal provisions were no longer allowed, but there was no legal provision to specifically uphold gender equality in employment yet. Fighting discrimination requires filling the legal vacuum with provisions explicitly upholding equality.

Equal Treatment as a General Principle and in Anti-Discrimination Laws

Even in the absence of specific anti-discrimination provisions covering a specific criterion, equality of treatment is a general principle that may apply across the board in most advanced democracies. Rather than resting on the law, the principle of equal treatment is laid out in constitutions or similarly fundamental sources and is enforced by courts. The equal treatment principle indeed covers any unjustified difference of treatment, whether or not it is due to discrimination on a prohibited ground. Certainly, the equal treatment principle is an important cornerstone that may be used by members of a discriminated category to obtain some redress for unequal treatment on an individual basis in the absence of legislation explicitly addressing the said category, namely, in case there is a legal vacuum.

But when specific anti-discrimination equal treatment legislation is in place for a given criterion (i.e., gender, origin, or other), legal protection for members of groups targeted by this legislation is improved. Indeed, this means that discrimination, which is an unjustified difference of treatment of members of the protected category (e.g., women for the gender criterion) vis-à-vis non-members, will be treated more harshly by courts than would have been possible under the mere application of the general principle of equal treatment. In particular, depending on the country, this means that the decision that has been found discriminatory can be nulled, thereby opening the door to more compensatory awards to plaintiffs than would be the case in a standard equality of treatment case. It also means that penalties such as heavy fines or (much more rarely) sentences to prison can be imposed on culprits beyond compensatory awards owed to the plaintiff in a standard equal treatment litigation. Having in place such specific anti-discrimination legislation that offers better redress when unequal treatment has been substantiated is a significant improvement step that should not be understated. Landmark equal treatment legislation include the Civil Rights Act adopted in 1964 in the United States, prohibiting discrimination based on race, color, gender, religion, and nation origin (Lillevik et al., 2010) and the Race Relations Act of 1965 in the United Kingdom (Tatli, 2010).

Adverse Impact or Indirect Discrimination: A Major Loophole of Equal Treatment Legislations

If introducing anti-discrimination legislation covering specific criteria (i.e., gender, race, religion) represents a major breakthrough for the respective disadvantaged category (i.e., women, or the oppressed color, religious, or ethnic groups), there is ample historical evidence that such a type of legislation may not be sufficient to eliminate longstanding differences in outcomes for target groups. For instance, the seemingly egalitarian practice consisting of requiring from all employees that they equally attend meetings in the late afternoon or evening without any business necessity hampers the advancement of employees with caring responsibilities, has no justification, and is interpreted in many countries, such as United States and the countries members of the European Union, as a form of discrimination, although on the face of it, it is “neutral” as it satisfies equal treatment mandates.

In some instances, if put in place with malice, equal treatment legislation may even trigger legal practices that, while complying with the equal treatment principle, ensure that a formerly discriminated category continues to be disenfranchised in an enduring but subtler way. The literacy and numeracy tests that were put in place in some U.S. states after African Americans were granted access to vote are examples of such laws that meet the equal treatment mandate, while making sure a category of citizens (namely, African Americans) do not achieve equal outcomes in practice (Filer et al., 1991).

In matters of employment, the Griggs vs. Duke Power (1971) decision involved African American employees who could not be promoted out of the only department they were allowed to work in (the Labor and Coal Department) before the Civil Rights Act, in spite of promotion rules that applied equally to all employees. Indeed, after the Civil Rights Act mandated equal treatment irrespective of race, Duke Power top management decided that instead of using race as a selection criterion, as was the case before the Civil Rights Act, they would only require, among other criteria, a high school diploma. The Supreme Court ruled that even though equal treatment was ensured by this neutral educational attainment requisite, African Americans working in the Labor and Coal Department were adversely impacted by the new selection criteria (as none of them had attended high school), while the employer could not prove that graduating from high school improved performance in the jobs where Black employees wanted to apply (Lillevik et al., 2010).

From these examples, it can easily be understood that states, sometimes helped by courts, have introduced rules that go beyond the mere requisite of equal treatment and take outcome gaps into account in order to find evidence of discrimination and set change agenda. Such types of rules will be examined. Therefore, “encouraged progress,” “mandated progress,” and “mandated outcomes” types of legislation, that explicitly address improving outcomes for specific target groups, are presented.

Encouraged Progress Legislations

The concept of adverse (or disparate) impact (also known today as indirect discrimination in the European Union) was one of the stepping stones towards encouraging employers not to sit content with seemingly neutral processes (i.e., processes that satisfy the principle of equal treatment and that, in and of themselves, met the requirements of anti-discrimination laws) by questioning their justification, or “business necessity” as spelt out in the United States. The concept of equal opportunity echoes this preoccupation of going beyond equality of treatment in order to achieve outcomes.

In theory both concepts of equal opportunity and disparate impact are mentioned in Title VII of the Civil Rights act. Section 705 of Title VII, establishing the Equal Employment Opportunity Commission (EEOC) is fully devoted to the concept of equal employment opportunity, whose mission is to facilitate the enforcement of Title VII. It can be argued therefore that EEOC has to do with “making non-discrimination happen.”

In practice, the Griggs vs. Duke Power decision in 1971 and the Equal Employment Opportunity Act in 1972 gave the real impetus to both concepts, which had been little used since 1964 (Kelly & Dobbin, 1998). Interestingly, the notion of “equal opportunity” is not defined, whereas the concepts of “being treated equally” or “being adversely impacted” are well defined in case law such as Griggs vs. Duke Power in the United States. One major hurdle is how to measure opportunity.

One of the first ways that makes action beyond equal treatment possible is by mandating employers to report on the makeup of their workforce along the criterion for which one wants to ensure equal treatment across its inherent categories. Such a report makes outcomes achieved by the various designated categories visible and provides a basis on which to take action to close gaps. For instance, a criterion can be gender. Gender is often disaggregated along the male/female categories, although other categories, such as “nonbinary” or “other,” are possible. In Europe, countries such as France (in 1983), the United Kingdom (in 2017), have adopted gender-disaggregated data reporting obligations for their employers above certain thresholds. Since 1965, U.S. employers with 100 employees and above have had to produce an EEO–1 report that provides gender and race/ethnicity-disaggregated data on their workforce and its distribution along job categories such as executives, managers, technicians, professionals, sales workers, craft workers, and operatives. In France, the first law to ensure equal employment opportunities between men and women was adopted in 1983 and prescribed that all employers with more than 50 employees produce a gender-disaggregated report every year, providing data on how well women and men achieved in terms of pay increases, promotions, and recruitment. Even without any further mandate, simply having to produce these reports encourages at least some employers to reduce the gaps revealed by these reports to enhance their reputation.

But encouragement can achieve only so much. For example, more than 20 years after the adoption of the law in 1983, only a minority of companies had filed the gender gap report if only once, and even less had taken any real action to close the identified gender gaps (Klarsfeld, 2009). Similarly, the production of the EEO–1 report (reporting gender and ethnic make-up of firms of 100 employees and above) in and of itself did not lead to gap closing in the United States (Kelly & Dobbin, 1998).

Mandated Progress Legislations

As “encouraged progress” legislation via the mandate to report may fail to close the gap, some countries have adopted more stringent regulations and introduced an obligation to put in place action plans with specified targets. Since the early 1970s, the actual enforcement of the adverse impact concept by U.S. courts has provided such an impetus that litigation based on adverse impact used outcomes (e.g., recruitment and promotion figures) to start building plaintiffs’ and defendants’ cases. So, the creation of the notion of adverse impact meant that outcomes mattered as much as treatment. Affirmative action was another such impetus in the United States. Employers who wanted to become (or remain) federal contractors (i.e., suppliers for federal government institutions such as the various departments and federal agencies) had to design and implement an affirmative action program aimed at reducing gender and ethnic gaps (Dobbin, 2009; Lillevik et al., 2010). Using the EEO–1 report as a starting base, they had to identify gender and ethnic gaps and put in place actions to remedy them. Failing to do so simply led to not being considered in federal calls for tenders. Canada adopted a similar system. Confronted with how little progress had been made to close the gender gaps since 1983, in spite of all the encouragement derived from the mandate to report gender gaps, in 2006 the French government introduced similar “action plan” legislation whereby employers were to design action plans to reduce gender gaps (Bender et al., 2010). In 2010, as gaps had hardly been reduced and action plans were not in place in many corporations, the government stepped up legislation by introducing fines amounting to 1% of the total wage bill for employers that failed to produce the mandated action plan (Bender et al., 2014). In Canada, federally regulated employers and federal contractors are subject to employment equity regulations that prescribe gender, ethnic, and disability reporting and action plans aimed at closing gaps among the various gender, ethnicity, and ability groups. This met at least with partial success (Haq & Ng, 2010).

Mandated Outcome Legislations

Mandated progress has met with some success in closing gaps. However, the results are mixed, as some designated groups achieve consistently less (e.g., in terms of wages) than other groups in spite of mandates to reduce gaps (Haq & Ng, 2010; Kalev et al., 2006; Ng et al., 2014). One way of remedying this is to impose not just progress (doing better year n + 1 than year n), but a specific pre-set outcome to be achieved immediately or over a transition period. Such is the case in India whose constitution adopted in 1950 prescribes that Dalits, scheduled (i.e., protected) castes, and scheduled tribes achieve a certain proportion of central government jobs, respectively, 15% and 7.5% (Haq & Ohja, 2010). Overall in India employment quotas at state level may include other target groups called other backward classes (OBCs), such that overall about one-third of public sector jobs in India, whether federal- or state-level, are reserved for Dalits, members of scheduled castes and tribes, and members of OBCs (Haq & Ojha, 2010). Malaysia has also adopted similar “mandated outcome” legislation with quotas in place for native Malays and other indigenous groups (Bumiputras) in the public sector (Jain et al., 2003). Other countries with mandated quotas for ethnic or religious groups include Northern Ireland (Jain et al., 2003), Lebanon (Al-Ariss & Sidani, 2016), Pakistan, and Bosnia-Herzegovina (Ortlieb et al., 2019). In employment, gender mandated outcomes (in the form of quotas) are in place for positions in board of directors in six European countries (Lu, 2019). More rarely, some states have put in place quotas for women in top civil service positions, as is the case in France.

Comparative evidence between countries with a mandated outcome approach (“quota” countries) and countries with a mandated progress approach (“disclosure” countries) as regards female representation in boards suggests that women’s representation increases more strongly in the former (the “quota”) group of countries than in the latter (the “disclosure”) group of countries (Lu, 2019). Table 1 recaps the typology presented.

Table 1. A Typology of Laws

Negative discrimination

A law that restricts the rights of a designated category. For instance, marriage is not accessible to lesbian, gay, bisexual, transgender, queer and intersex (LGBTQI+) couples in many countries.

Legal vacuum

The law is silent—it neither discriminates nor protects. For instance, in many countries, transgender persons are not mentioned by laws.

PASSIVE PROTECTION

EMPLOYERS REACT ONLY IF SUED.

Restricted equal treatment

The law protects people from being discriminated against based on a criterion, but it limits the ability of employers to collect data to monitor progress on it. For instance, many countries prohibit ethnic discrimination but forbid ethnic data collection.

Equal treatment

The law protects people from being discriminated against based on a criterion, and employers can collect data to monitor progress on it.

ACTIVE PROTECTION

EMPLOYERS HAVE TO ACT EVEN IF NO EMPLOYEE SUES.

Encouraged progress

The law protects people from being discriminated against based on a criterion, and employers have to collect data to monitor progress on it.

Mandated progress

The law protects people from being discriminated against based on a criterion, and employers have to set long-term targets and collect data to monitor progress on it.

Mandated outcomes

The law protects people from being discriminated against based on a criterion, and employers must achieve a pre-set outcome. For instance, a percentage of public sector jobs are reserved for specific target groups.

Moving Along the Typology

In many countries, for a given category (i.e., gender, Blacks, ethnic groups, immigrants of certain national or ethnic origins, or their descendants), states often had to repeal discriminatory legislation before they introduced anti-discrimination legislation (Klarsfeld et al., 2012). For instance, after World War II successive U.S. federal administrations abolished segregation regulations that discriminated against Blacks in public organizations such as government departments and agencies, public transportation, educational institutions, or the military (Lillevik et al., 2010). Successive administrations in France abolished discriminatory regulations that affected married women until the 1960s, such as the right to hold a bank account and to work without having to request their husbands’ approval (Bender et al., 2010). In the 1970s successive legislatures in many countries, such as France, the United Kingdom (under the impetus of the European Union), moved to the next stage of the continuum and introduced “equal treatment” laws to prohibit discrimination between men and women in the workplace, as women faced many obstacles in the workplace, such as being barred from certain positions or being subject to lower pay rates for the same job (Tatli, 2010).

Subsequently, to varying degrees, at various speeds, and for different criteria, some governments introduced “encouraged progress,” “mandated progress,” or “mandated outcomes” legislation to encourage or mandate progress towards equality of outcomes for traditionally underprivileged population groups, mostly for women and people with disability, and occasionally for ethnic or religious groups.

For instance, “affirmative action” programs became commonplace in various states and administrations in the United States in the 1970s, mandating the establishment of goals and timetables to ensure progress in reducing the gaps between Blacks and Whites, and between women and men, in public bodies and federal contractors. Similar regulations were adopted in Canada under the label of “employment equity” in the 1980s, and in South Africa in the 1990s. In France, after a first law that “encouraged progress” in closing gender gaps was adopted in 1983, and due to slowness and later stagnation in said gaps reduction, a host of regulations were enacted in the 2000s and the 2010s, to not just encourage, but mandate progress, through the establishment of mandatory goals and timetables to reduce the gaps, somehow paralleling goals and timetables that had become commonplace in the United States under affirmative action, and in Canada under employment equity.

Although this sequencing from repealing negative discrimination laws through legal vacuum, equal treatment, encouraged, or mandated progress, to mandated outcomes seems logical and is indeed commonplace in many developed and emerging countries, it is not generalizable to all countries and to all criteria. For example, India, Lebanon, and Malaysia introduced mandated outcomes (under the form of political representation and/or employment quotas) as part of their respective constitutions or founding regulations (Al Ariss & Sidani, 2016; Haq & Ojha, 2010; Jain et al., 2003) for designated caste, ethnic, or religious groups. There was no transition from one stage of the continuum to the next as it happened in Canada, France, or the United States. Another point worth noticing is that only a limited number of countries have gone as far as establishing mandated outcome legislation in employment matters. And for those that did, this applies only for a limited subset of criteria (mostly gender, disability, and/or ethnicity and religion), and/or for a narrow coverage.

Coverage of Laws in Terms of Criteria and Sectors

In most countries equal treatment laws, when they exist, apply across all sectors (i.e., public and private). They also apply to a generally large and growing number of criteria. At present, there are typically a dozen criteria, such as gender, origin, sexual orientation, age, religion, disability, health status, family status, genetic characteristics, former conviction, AIDS infection, political opinion, union affiliation. In some countries, more than 20 criteria apply such as in Chile, in France, and more in Mexico (Klarsfeld et al., 2012). Table 2 provides a list of criteria covered by equal treatment legislation for a selected number of countries covered in Klarsfeld (2010). Gender, then disability and age, religion and belief, and race and ethnicity are the most covered criteria in the countries listed in Table 2.

Table 2. Criteria Covered by Equal Treatment Legislation According to Country

Austria

Belgium

Canada

France

Germany

India

Italy

The Netherlands

S.Afr

Sweden

United Kingdom

United States

Gender/Sex

X

X

X

X

X

X

X

X

X

X

X

X

Age

X

X

X

X

X

X

X

X

X

X

X

Disability

X

X

X

X

X

X

X

X

X

X

X

Sexual Orientation

X

X

X

X

X

X

X

X

Gender identity

X

X

X

X

Nationality/origin

X

X

X

X

X

X

Ethnicity

X

X

X

X

X

X

X

X

Genetic features

X

X

X

Veteran status

X

Residence/birthplace

X

X

Religion/belief

X

X

X

X

X

X

X

X

X

X

Political opinion

X

X

X

X

Union affiliation

X

X

X

SES/wealth

X

X

X

Social background

X

X

Pregnancy

X

X

X

X

Health

X

X

X

Language

X

X

X

X

Caste

X

Tribe

X

Visible minority

X

Aboriginals

X

Civil/marital status

X

X

X

X

X

Physical features

X

X

Birth

X

X

Culture

X

Color

X

X

X

X

X

Race

X

X

X

X

X

X

X

X

X

Jewish ascendency

X

Personal circumstances

X

Temporary contract

X

Working hours

X

However, laws that encourage or mandate progress and, all the more so, laws that mandate outcomes have a narrower scope in terms of criteria and/or sectors. They are mostly targeting two designated groups: women and people with disabilities (SADC, 2019; Sorsa, 2016).

In some countries, progress or outcomes are mandated for some locally defined target groups, such as caste and scheduled tribes in India, religion in Lebanon and Pakistan, region (Nigeria), or a combination of gender and race/ethnicity in Canada and in the United States (Adeleye et al., 2014; Al Ariss & Sidani, 2016; Haq et al., 2020; Lillevik et al., 2010; Özbilgin & Syed, 2010). The bulk of such progress or outcome mandates are required for the public sector or in public sector-related organizations such as contractors for respective government units.

In Canada employment equity and in the United States affirmative action regulations apply to civil service organizations and federal contractors and mandate progress for women, minorities, or veterans (in the United States), or women, visible minorities, First Nations citizens, and people with disabilities (in Canada). Similar provisions exist for women and Black people in South Africa across both public and private sectors (Booysen & Nkomo, 2010). In the United Kingdom equality duties encourage progress for designated groups (women, ethnic minorities, the disabled) in the public sector only (Tatli, 2010), and since 2017 a gender equality law has mandated reporting on gender disaggregated data in the private sector too (GEO & Acas, 2020). In France mandatory reports on gender gap and disability have been made compulsory in the private sector since 1983 and 1987, respectively (Bender et al., 2010), and since 2019 firms have had a mandate to achieve a composite score reflecting equality of outcomes in pay levels, pay raises, promotions, and other metrics (MTEI, 2020). Unlike in most English-speaking countries, in France and other European countries, mandated progress or outcome legislation have been introduced earlier for the private sector than for the public sector.

Enforcement and Sanctions

Regardless of whether a law is based on equal treatment or a mandate to report, act, progress, or achieve an outcome, it will meet with little success if there are no enforcement mechanisms in place (Lu, 2019). In particular, the degree to which employers have to be “active” in the face of encouraged progress, mandated progress, or mandated outcomes legislation, or even have to react in case an employee sues for unequal treatment, is highly dependent on the existence of enforcement mechanisms, involving a minimum of sanctions. One must distinguish between types of enforcing institutions (trade unions, courts, general labor administration, dedicated agencies, or non-governmental organizations), the level of sanction that can be imposed, and the effective operation of the said institutions.

On the occasion of its 100th conference, the International Labor Organization (ILO, 2011, p. x) recalled that “having laws and institutions to prevent discrimination at work and offer remedies is not enough; keeping them functioning effectively is a challenge, especially in troubled times.” Courts are the traditional enforcement arm of the law. In a state governed by the rule of law, whoever believes they have been wronged can go to a court in order to solicit redress. However, it is important to note some basic prerequisites: to obtain remedies, victims of discrimination at work need (a) to be aware of the laws or norms, (b) to be able to determine if their particular situation is covered by the laws in force, and (c) to know how to address their claim, including procedures and relevant or helping actors (Benedí Lahuerta, 2013). However, courts are often expensive to access, and many potential defendants delay starting litigation, where resources to make use of the laws are strongly unequally distributed, between employer and employee. Significant barriers remain in many countries that impede access to justice for those discriminated against, including physical and linguistic obstacles. All these barriers prevent victims of discrimination from submitting their claims successfully. Still, courts were instrumental in eliciting major decisions to enhance outcomes of target groups such as Griggs vs. Duke Power (Lillevik et al., 2010) in the United States that gave the impetus to the disparate impact notion, or the Ponsolle vs. Delzongle case in France (Cour de Cassation, 1996) that set a precedent by placing the burden of proof on the employer, hence reversing the burden of proof in discrimination. This shift has clearly facilitated a better enforcement of laws as reported by states such as France, Italy, the United Kingdom, or the Czech Republic (Mercat-Bruns et al., 2018).

Instead of initiating court litigation, employees turn to their local worker representative, generally a trade union, or a body made up of trade union affiliates such as a works council (in most European Union countries), or joint representation committee (in the United Kingdom). Trade unions may solve disagreements by ways of discussion, mediation, grievance, negotiation, or labor disputes when all else fails. Thus these must be seen as a complement, rather than in competition, to courts. Courts are commonly used by trade unions that seek to obtain landmark decisions as an alternative strategy to collective bargaining and labor disputes. Examples are Griggs vs. Duke Power in the United States (Lillevik et al., 2010) or Ponsolle vs. Delzongle in France (Cour de Cassation, 1996).

With most modern nation-states being aware of the specific (unbalanced) nature of the employment relationship, they have put in place labor administrations to oversee the enforcement of basic rights such as decent wages and labor conditions, health at work, employee representation, collective bargaining, and supplement labor unions’ effectiveness. Labor administrations play a key role in overseeing organization mechanisms in the workplace such as union certification processes in the United States, union recognition processes in the United Kingdom, and employee representation elections in European countries.

To make equal treatment and other types of equality legislations easier to mobilize by lay citizens, some countries have put in place dedicated administrations specializing in discrimination matters such as the EEOC in the United States, or Human Rights Commissions that can be found across English-speaking countries such as Australia and Canada, the Defender of Rights in France, and the Equality Ombudsman in Sweden.

The level of sanction that can be applied for non-compliance ranges from non-existent—as happened for French firms that did not introduce the “mandatory” anonymization of applicants in their recruitment processes between 2006 and 2015 when the mandate was repealed—to the dissolution for Norwegian firms that do not comply with the 40% minimum female (and male) quota (Sorsa, 2016). Between these extremes, a range of sanctions are applied that stretch from fines, court-ordered awards, to nullification of decisions, loss of government contracts, name and shame, imprisonment, and company dissolution. Globally, the limited amount of compensation awarded in most countries is highlighted by the European Court of Human Rights. Table 3 recapitulates the different types of sanctions, from non-existence to dissolution.

Table 3. Sanction Levels

Level of Sanction

Definition

No sanction

The law fails to define any sanction for a given identified breach

Name and shame

Lists of companies breaching the law are publicized

Awards

The law defines awards for plaintiffs when employer is found guilty

Fines

On top of awards, the law specifies fines that have to be paid to the state

Loss of contracts

Non-compliant firms are barred from working for government

Nullification of decisions

Decisions taken in breach of the law can be nulled

Imprisonment

Persons found guilty of breaching the law are sentenced to prison

Dissolution

Company found guilty of breaching the law loses its license to operate

Unfortunately, the shortage of human and financial resources of many institutions and the fact that labor inspectors, judges, and other equality bodies face a lack of knowledge impede identifying and addressing discrimination cases (ILO, 2011).

The Defender of Rights in France, and its 736 agents for its whole missions, dealt with around 5,500 discrimination claims in 2019 (+20% since 2014), of which 47% were about discrimination in public or private workplaces (Défenseur des droits, 2020). Considering that about 30 million persons are of working age in France, these results appear very low, even if 80% of the proposed mediations end successfully, all missions combined. The Canadian Human Rights Commission (2020) is staffed with 256 employees and reported about 700 employment-related complaints in 2019, with regard to a population of 20 million people of working age. In 2019, 85 cases were referred to a tribunal, 77% were related to employment and 17% involved allegations of harassment (CHRC, 2020). This suggests a low level of recourse to this federal body.

Beyond their effectiveness in terms of case support, it is interesting to note the key role played by anti-discrimination-dedicated administrations in contributing to the evolution of their national legislation. To expand the enforcement of anti-discrimination laws beyond individual cases, some countries (Brazil, Canada, Denmark, France, and the United States) developed mechanisms to deal with collective or systemic discrimination in the workplace, such as class actions (Mercat-Bruns et al., 2018). In France and Canada, the national equality body clearly provides a strong orientation and influences the recognition of systemic discrimination and the possibility of class actions when facing collective discrimination.

Moreover, these dedicated bodies have most often duties of information, communication, and/or training of individuals and employers regarding laws and rights, best practices, and sanctions. Training and advice provided to employers help to prevent discrimination in the workplace before it occurs. At the same time, the dissemination of information campaign may also explain the growth in claim numbers, enhancing potential plaintiffs’ awareness of being discriminated against and their willingness to ask for remedies.

Conversely, trade union involvement and effectiveness against discrimination in the workplace is quite ambivalent. If they traditionally strongly fight against wage discrimination or employees’ sanctions, they mainly focus on discrimination against trade union members and some additional criteria such as gender and age (Bouchareb, 2011), whereas skin color, migrants’ origin, and religion are poorly addressed by them in Europe. In some countries such as the Czech Republic, Finland, Lithuania, Malta, the Netherlands, and Poland, the level of involvement of trade unions in combating racial discrimination is low. The position of the unions regarding discrimination is strongly anchored in national contexts and historical fights; therefore, the anti-discrimination law enforcement unions rely on is variable between countries and discrimination criteria.

Moreover, unions traditionally act in a collective way for employees’ rights whereas discrimination is still mainly raised by individuals in the workplace. Some of them express worries about pursuing legal actions at the individual level that could lead to a weakening of unions’ collective bargaining (Jefferys & McKay, 2011). In this vein, the French Defender of Rights (2020) expresses concerns, noting that since class action has been given legal status in France in 2016, trade unions have initiated such forms of litigation against union discrimination at work, but are reluctant to initiate class actions related to other forms of discrimination based on gender, sexual orientation, origin, or disability. In the European Union, trade unions globally reported that reflecting diversity in their ranks remains a challenge (Jefferys & McKay, 2011).

Finally, it seems that the effectiveness of equality and anti-discrimination laws enforcement is still marred by major obstacles in practice. The availability of penal or civil procedures, either individual or collective, and the allocation of the burden of proof may play a key role for the full enforcement of laws (Mercat-Bruns et al., 2018). The ILO (2019) further encouraged governments to facilitate access to existing mechanisms, amend the national rules on legal standing, enhance the capacity of enforcement authorities, including labor inspectors, tribunals, workers’ and employers’ organizations, job placement entities, and other relevant actors to identify, prevent, and address cases of discrimination, and finally raise public awareness of the relevant legislation and remedies available.

Practical Implications for Organizations

As the workplace becomes more global, an increasing number of employers are employed by multinational corporations. With organizations spanning a variety of countries, they face different work cultures and national discrimination laws. Thus, the companies must deal with significant complexity which increases risks of non-compliance. Multinational employers are coming under growing pressure to comply with international as well as national non-discrimination standards (Nishii & Özbilgin, 2007).

Furthermore, the global workplace results in more international secondment and assignments for a growing proportion of employees. If an employee suffers discrimination abroad, can they sue their company at home? The scope and conditions under which an expatriate is covered by the anti-discrimination laws of their country of employment vary from country to country. For example, if an employee’s job is outside the United Kingdom, the discrimination law from the United Kingdom will apply if the employer has an establishment in the country and the employee can demonstrate an “overwhelmingly stronger connection with and with British employment law than any other system” (Rozman, 2016). But U.S.-based companies are not required to comply with federal discrimination laws if compliance would cause the company to violate the laws of the host country (Posthuma et al., 2006).

Finally, international organizations need access to and must deal with a high level of information about international employment discrimination laws to identify areas of legal and commercial risks and to protect their internal and external reputation. Managers, legal and human resources professionals must develop new skills to manage risks and strong adaptation capabilities in an international and cross-cultural management context (Posthuma et al., 2006). Even reporting must be viewed through national frameworks on discrimination because the type of data allowed to be collected varies from country to country. For example, while it is common to categorize employees on the basis of race in the United States, this is completely prohibited in France. Some employers have had to create dedicated positions to manage the legal frameworks they have to deal with in terms of non-discrimination.

Where to in the Future?

A question of interest is whether the move along the continuum presented from negative discrimination through equal treatment to mandated outcome legislation is a mechanism that works in only one direction (Klarsfeld et al., 2012). In other words, can there be a change of direction, as in any other field covered by political action? Critics of mandated progress and outcome legislation contend that, although they claim to be temporary, once in place, they tend to take on permanency and favor divisiveness (Calvès, 2016). Overall mandated progress policies have often proved enduring, even in the face of turbulence and threats to dismantle them as it happened in the United States (Kelly & Dobbin, 1998). However, the one-way view of a constant progression from one end of the continuum presented in Table 1 to the other is somehow utopian.

For instance, the history of affirmative action policy in the United States has experienced ebbs and flows. On the one hand, resources granted to the agencies in charge of enforcing affirmative action programs were curtailed during the Reagan administration in the 1980s (Kelly & Dobbin, 1998). On the other, leading organizations voluntarily engaged in affirmative action and devoted considerable resources on affirmative action programs implementation and maintenance. As time goes by, the Supreme Court tends to interpret the notion of adverse impact more restrictively than in the past (Kelly & Dobbin, 1998; Lillevik et al., 2010). The Supreme Court has upheld the right for gay and transgender people not to be discriminated based on their sexual orientation in employment matters, but this came at the same time that the Trump administration removed protection for discrimination based on the same ground in health-related organizations (Liptak, 2020).

In 1994 the Netherlands introduced a mandated progress-type of legislation with an obligation placed on employers to report national origin of their employees and to define goals and timetables to achieve specific outcomes for targeted migrant groups (labeled “allochtones” as opposed to “autochtones,” or Netherlands nationals). The Netherlands amended this legislation in 1998 and repealed it in 2004 following employer resistance to its implementation (Bleijenbergh et al., 2010). On another note, India started, from its very foundation, with a strong mandated outcome-based policy of quotas for Dalits and scheduled tribes, skipping to the end of the continuum from early on without “moving along” it (Haq & Ojha, 2010). In some states in India, where OBCs are eligible for reservation, quotas were introduced without evidence of an economic gap similar to the one suffered by members of scheduled tribes and scheduled castes.

Debates have been taking place in India, aimed at mitigating the caste-based mandated outcome legislation with other criteria such as wealth, merit, and place of residence (Haq & Ojha, 2010; Haq et al., 2020). Rather than a regression, such efforts to introduce additional criteria should be seen as a refinement of the existing reservation framework. However, under rule of the Bharatiya Janata Party started in 2014, India has adopted policies that amount to creating legal negative discrimination against Muslims (Haq et al., 2020), in a move that goes against equality legislation’s spirit initiated since India’s independence.

All of these examples suggest that political balance of power, rather than mechanistic progress, may determine decisions to initiate, develop, maintain equality legislation, or sometimes even reintroduce negative discrimination regulations. The line between discrimination and legitimate difference of treatment may be contested at any time by any constituency. This suggests an uncertain future regarding which direction world nations will move along the continuum. Various attempts towards returning to the “negative discrimination” end of the continuum are evident in India (Haq et al., 2020), during the Trump administration in the United States (Liptak, 2020), and in Europe. Maintaining existing equality of treatment and outcomes legislations, or developing new ones, will likely require a fair amount of social activism. Social movements, such as Black Live Matters in the United States or the October 2019 protests in Lebanon, provide reasons for hope, that the age-old fight for equality will live on in the future in spite of the uncertainty and frailty of its outcomes.

Further Reading

  • Combs, G., Haq, R., Klarsfeld, A., Susaeta, L., & Suarez, E. (2018). Comparative perspectives on diversity and equality: The challenges of gender, sexual orientation, race, ethnicity, and religion. In C. Brewster, W. Mayrhofer, & E. Farndale (Eds.), Handbook of research on comparative human resource management (pp. 303–321). Edward Elgar.
  • Klarsfeld, A., Knappert, L., Kornau, A., Ngunjiri, F. W., & Sieben, B. (2019). Diversity in under-researched countries: New empirical fields challenging old theories?. Equality, Diversity and Inclusion, 38(7), 694–704.
  • Klarsfeld, A., Ng, E. S., Booysen, L. A., Christiansen, L. C., & Kuvaas, B. (2016). International and comparative perspectives on diversity management: An overview. In A. Klarsfeld, E. S. Ng, L. A. Booysen, L. C. Christiansen, & B. Kuvaas (Eds.), Research handbook of international and comparative perspectives on diversity management (pp. 1–17). Edward Elgar.
  • Klarsfeld, A., Ng, E. S., Booysen, L. A., Roper, I., & Tatli, A. (Eds.). (2014). International handbook on diversity management at work: Country perspectives on diversity and equal treatment. Edward Elgar.

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