In April 2018, two black men entered a Starbucks store in Philadelphia and asked to use the bathroom. An employee informed them that this was a customer only service, before promptly alerting police. On 29th May, Starbucks shut 8000 of its stores across the US for one afternoon, with the aim of delivering "unconscious bias" training to around 175,000 employees. This might seem like an extreme response. Nonetheless, it highlights some important issues about discrimination law and the steps employers can take to help combat racism in the workplace.
When can an employer be liable for racism at work?
Racism can take a number of different forms.
- It can occur directly, where a person is treated less favourably because of their race.
- It can also occur indirectly, where an employer applies a provision, criterion or practice which, on its face, applies equally to all employees but in practice is disadvantageous towards those of a particular race. Where discrimination is indirect, the employer may be able to defend their actions by showing that the provision, criterion or practice was applied as a proportionate means of achieving a legitimate aim.
- Discrimination can also arise in the form of harassment. This is where an individual is subjected to unwanted conduct in relation to race, and this conduct has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.
Race includes colour, nationality, and ethnic or national origins.
An employer will be liable for discrimination or harassment by its employees if this occurs 'in the course of employment', even if it is done without knowledge or approval. There is a defence, however, if the employer can show that it took all reasonable steps to prevent the employee from committing the particular act, or from doing such things generally.
What kind of action should employers take to prevent racism in the workplace?
Employers have an important role to play in the prevention of workplace racism. It can be difficult to know, however, how far to go. The Starbucks response certainly seems to go quite far. In fact, it is estimated to have cost the company around $20 million in sales for the afternoon it closed its stores.
Preventative measures will usually centre on having effective workplace policies and training. It is good practice to:
- Have appropriate policies in place including an equal opportunities policy and an anti-harassment and bullying policy;
- Keep these policies up-to-date and review them regularly;
- Ensure all workers are aware of the relevant policies and procedures, and of the consequences of breaching them;
- Deal effectively with complaints, and take appropriate disciplinary action;
- Train managers and supervisors in equal opportunities and harassment issues; and
- Adopt a zero-tolerance approach to objectionable language and behaviour.
How we can help
Please get in touch with your usual Brodies' contact for further information on preventing discrimination at work; or to find out how we can help with delivering equal opportunities training. Workbox subscribers can access guidance on race discrimination and slides on equality and diversity in the workplace.
With thanks to Anna Steen, our summer student, for her help with writing this blog.