In the US, Senator Harry Reid’s recent remark about President Obama being electable partly because he had a light skin colour and “no Negro dialect” (unless he wanted one) caused a furore. There are no anti-discrimination laws when it comes to voting for a prospective president. However, in most jurisdictions, there is now a vast array of legislation aimed at promoting social justice in and around the workplace.
This article looks at how effective such legislation is in a financial services context, taking the UK as an example. UK anti-discrimination legislation is based on European Union (EU) principles, and so much of what follows is also applicable to other EU jurisdictions.
The UK legislation seeks to afford protection from discrimination on grounds of sex, marital status, pregnancy/childbirth, race, colour, nationality, ethnicity, disability, age (whether young, old, or somewhere in between), religion and belief, and sexual orientation. In addition, there are laws protecting those employed on a part-time or fixed-term basis, those who raise issues of malpractice in the workplace (so-called whistleblowers) and those who act as employee or union representatives.
Much of this legislation has been in place in one form or another for decades. However, financial services companies in the UK do not typically display a diverse workforce profile, particularly at the more senior and higher-paid end of the spectrum. Some have blamed the testosterone-fuelled male domination of the industry for contributing to the global banking crisis. The predominantly white ethnicity of the workforces in the financial districts of the City of London and Canary Wharf are often contrasted with the large proportion of black and Asian residents in the surrounding areas. Indeed, the City is often said to ‘change colour’ at night, when the financial services workers go home and are replaced by office cleaners.
It is clear that merely introducing legislation does not bring about change in the real world. A multiplicity of factors is at work, including built-in social advantages, educational opportunities and achievements, and hard-to-shift attitudes of employers and their clients.
Legislation can only be effective if people are prepared to use it and if the playing field is reasonably level. A number of women in the UK financial services industry have launched high-profile sex discrimination claims, some of which have resulted in multi-million pound awards or pay-offs. Increasingly, age discrimination claims are being used to the same effect, although age discrimination legislation in the UK is relatively recent. The use of statutory questionnaires (which employers must answer or face adverse inferences being drawn against them in court) and a shift in the burden of proof in favour of claimants have helped to tilt the balance slightly.
Full and persistent use of the disclosure rules in litigation can also be a potent weapon in the hands of the claimant. For example, the eventual discovery of injudicious e-mails between senior managers referring to the need to bring in ‘young blood’ to replace the middle-aged claimant has, in my experience, led to a substantial improvement in the settlement package on the table.
However, such claims tend to be brought by individuals as their last throw of the dice – when they no longer expect to have a full-blown career in the financial services industry and therefore have relatively little to lose. It also helps if they have sufficient access to information in the first place to know that the dice are loaded in their favour. For many of those trying to establish themselves in the industry or still building their careers, the risk of being stigmatised as a troublemaker is too great.
Although there are still examples of obviously offensive and discriminatory practices, such as conducting marketing largely in lap-dancing clubs, much discrimination is subtle and hard to prove. Discrimination on the basis of accent or dialect is a case in point. If, like President Obama, candidates for well-paid financial services jobs have ‘acceptable’ accents or are able to adapt their natural accents sufficiently to suit the culture of the organisation, the reality is that they are far more likely to succeed.
Where an accent or dialect interferes with communication necessary for the job, discrimination on that basis will be justifiable. However, where it is merely a matter of ‘fitting in’ with the existing culture of the organisation, it may well amount to discrimination on grounds of racial or ethnic origin.
In England, regional accents will not usually form the basis of a race discrimination claim, assuming that the comparison is with the way in which a ‘well-spoken’ English person would speak. However, Scots, Irish and Welsh accents (as well as foreign accents) could form the basis for such a claim. In view of the risk of discrimination on grounds of accent or dialect, in practice candidates may well wish to moderate their use of language as best they can to the circumstances of the job. And we may yet see age discrimination claims based on the use of language that is youth-based.
The reality is that many UK financial services employers look upon anti-discrimination legislation as an inconvenience, at best. Partly as a result of that attitude, the legislation has had limited impact from a social justice perspective. Given the potentially high rewards available in the industry, there will always be a high degree of focus on how effectively it is dealing with these issues. Failure to address them more effectively will inevitably lead to more stringent and (some would argue) intrusive legislation and regulation. For example, there are already moves in the UK (although not yet passed into law) to ban confidentiality restrictions in relation to remuneration, including bonuses. This is on the presumption that openness will lead to fairness.
Whether openness will lead to fairness remains to be seen. However, if it does not, it will almost certainly lead to more litigation – which, of course, can only be in the interests of the lawyers.
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