workplace discrimination

Discrimination in the workplace is a growing concern in today’s business community. Everyone deserves to feel safe and comfortable in the workplace in order to do their jobs well. Unfortunately, differences between people have a tendency to lead to misunderstandings, and sometimes result in conflict and discrimination. Employers have a responsibility to their workers to protect them from discrimination and unfair treatment in the workplace.

Article 27 of the Constitution grants women and men the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres. The article further states that a person shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth. A person under the Constitution is defined to include a company, association or other body of persons whether incorporated or unincorporated.

The Employment Act, which is the main legislation that guides the employer-employee relationship in Kenya further states that an employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice. The Employment Act goes on to state that no employer shall discriminate directly or indirectly, against an employee or prospective employee or harass an employee or prospective employee, on grounds of race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, disability, pregnancy, mental status or HIV status. Contravention of the provisions of the Employment Act by the employer shall result in the commission of an offence.

There are various forms of discrimination that may occur in the workplace. The four main forms are listed below.

  1. DIRECT DISCRIMINATION

This is the legal term applied when a person discriminates against another due to a protected characteristic that they may have e.g. race, religion, gender, disability etc.

  1. ASSOCIATIVE DISCRIMINATION

This form of discrimination occurs when a person is treated less favourably because of their association with a person who has a protected characteristic.

  1. PERCEPTIVE DISCRIMINATION

This is where a person treats another less favourably because they believe that the other person has protected characteristic.

  1. DETERRED DISCRIMINATION

This is where an employer gives an indication that persons who have a particular protected characteristic will not be considered for a job post or opportunity.

It is important to understand that treatment must be ‘less favourable’ not ‘unfavourable’. Unfavourable treatment does not require a comparable.

If you think that you have been treated less favourably than your workmates by your employer and you believe that the reason for the less favourable treatment was in any way related to one or more of the protected characteristics, you may be able to pursue a claim for discrimination.

Tackling inappropriate behaviour at work isn’t just about having the right policies in place. It’s about everyone taking effective action to challenge bullying, harassment and other unacceptable conduct and create a diverse and respectful working environment.

Here’s what you can do if you feel you’re being discriminated at work:

  1. DOCUMENT EVERYTHING

Document notable events where you believe you’ve been discriminated against. This documentation is crucial to identifying any trends you believe you’re experiencing. You’ll need to gather a combination of direct and circumstantial evidence to have a strong claim. Evidence will constitute discriminatory texts, emails, memos, conversations while noting when, where and with whom they took place. Don’t forget to keep them secure and don’t share them with anyone else until you’re ready to present the evidence.

  1. EDUCATE YOURSELF ON YOUR LEGAL RIGHTS

Before you approach your employer with a discrimination claim, you need to seek legal counsel and learn about your rights. Get the legal definition of what constitutes discrimination. Present your recorded evidence of the observable trend of discrimination you’ve encountered to see if you can file a claim.

  1. SPEAK TO A SUPERVISOR

When you know your rights and have gathered your evidence make a supervisor in your company aware that you feel discriminated against. This can be a conversation with your boss or Human Resources representative. Your company will not take action until you directly ask them to. You must communicate that you believe you’re experiencing discrimination and not just uncomfortable or a dispute with a co-worker. Make sure your company understands that your rights are being violated and ask for a follow up and for the company to address your claims. Don’t forget to document this conversation.

  1. SEEK LEGAL COUNSEL

If your workplace hasn’t addressed your claims to a satisfactory degree – it’s time to seek legal action. Compile your evidence of discrimination including any steps you’ve taken to try and solve it and your lawyer will help you file a case.

Discrimination shouldn’t be tolerated at any degree in a work place. You should not be complicit or a victim of discrimination. You’re well within your rights to question if any less favourable treatment you receive is tied to a protected right. Don’t let your superiors of fear intimidate you – chances are if it has happened to you, it has also affected someone else.

At The Manpower Company, our Human Resource Consultancy services are designed to assist your organisation with matters of personnel. By designing and advising you about workplace conduct, we can help both you and your employees navigate concerns – or avoid them all together. Get in touch here to find out how we can help.

Mshimba Michelle

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