Characteristics and discrimination

A word that has changed its meaning over time is discrimination. Before it was used in an ‘equality’ context it was a good thing to be a person of discrimination. A person who exercised discrimination was someone who used clearness of judgement and perception to chose between what was of value and what was not.

To that extent it is arguably the moral and political duty of every man, woman and child in the country to discriminate at all times, particularly when making important decisions.

This idea of discrimination has been overtaken by the more recent notion of unfair prejudice. So, if someone says to me, “you have discriminated against me” they do not mean I have used my powers of judgement and reason to conclude they are not up to the job, but the exact opposite. This is an allegation of bigotry, prejudice and unfairness.

The very frontier of the discrimination issue lies where the older meaning becomes the new. If I exercise my discerning judgement properly in taking decisions that affect other people – such as recruitment, I would not normally be exercising my judgement properly if I took into account irrelevant factors (or failed to take into account relevant ones).

The law does not permit me to decide for myself which characteristics I may include. Existing discrimination law requires me to disregard certain facts about an individual in the workplace.

I may not discriminate:

 – on the grounds of age, but I may compulsorily retire someone because of their age
 – against someone who is disabled, but I may refuse to hire able bodied people
 – against someone undergoing gender reassignment, but I may prefer to recruit those who are undergoing it
 – against married/civil partnered individuals but I can refuse to hire single people
 – in relation to pregnancy and maternity but I am not obliged to give men equivalent terms
 – on religious grounds or philosophical belief ……
 – on grounds of sex or sexual orientation

These characteristic are going to be known in the Equality Bill as ‘protected characteristics’. (See below). Despite the publicity about the Equality Bill, it does not seem likely that all individuals are to be equally protected. The Bill itself separates out these groups and deals with them in different ways at various stages.

We are a long way from all ‘characteristics’ being equal. In fact, in moving towards what was once known as positive discrimination, we are moving towards a notion that some characteristics will entitle an individual to more support/training/resources than others.

In reality this has always been so. Once the most advantaged group in the UK was plainly the older, white, male, heterosexual, property owning Anglican. This group historically were entitled to own property, take public office, vote and conduct a sex life without going to jail, decades/centuries before other groups.

Things have moved on and the old no longer command automatic respect because of their years, it is not necessary to hold a particular religion to be an MP or JP as it once was, though it is still necessary in order to inherit the Crown of England. It is also necessary to be male.

New groups vie for preference and advantage – naturally so. Competition for resource is at the very heart of survival. Now these protected characteristics will not only give individuals redress if they are the victims of prejudice but also give them some special legal consideration

When I was a child I was taught to give up my seat to the elderly, disabled, pregnant women on buses – on the grounds they needed the seat more than me. Now I see children with their parents sit sullenly on seats while senior citizens on zimmer frames struggle to hold their balance on a London bus.

Perhaps what was once the instinctive politeness in response to need really does need to be replaced by a legal framework. A law to make us all polite to each other and give up our seats, or place in the queue to those who need it more than us.

Somehow I suspect the sullen children will grow up to sue everyone for unfair discrimination and their ‘rights’ while those who really need us to put them before us in the queue struggle on.

The protected characteristics

The following characteristics are protected characteristics.

gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
religion or belief;
sexual orientation.

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Filed under discrimination, employment law, Equality Bill

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