Discrimination based on Physical Disability

An employee faces so many challenges in the work place. This may include the rigors in the employment process itself, such as the meeting of a particular deadline, or the reaching of a particular quota. However, aside from this production related challenges that a worker is faced, an employee also encounters certain problems referring to his or her relationship with the employer and certain occupational hazards that he or she may experience along the way.

As stated, the employment atmosphere is such a jungle that if you are inattentive and unaware of the dangers that are lurking within it then you could be a victim of a work hazard and suffer the consequences thereof. Such drastic consequences may include physical disability that would preclude the employee from doing what is incumbent upon him or her to perform.

The office of an employee requires him or her to be productive in the work place, and if the employee no longer functions as is expected of him or her, then the employer has the option of eradicating the services of the latter. However, as like any other right this prerogative of the employer to terminate the services of an employee could not be exercised without regard to the basic constructs outlined by our laws and the Constitution.

Discrimination because of physical disability is a prohibited act under our laws, and it is considered as an unfair labor practice that would actually bring about liability to the employer if the same is being practiced.

The fact that an employee has a disability is not a sweeping and roving justification that he or she may be dismissed at the whims and caprices of the employer. In fact, termination of services, or even constructive dismissal of an employee on the sole basis of his or her physical disability alone would be considered as falling within the confines of discrimination on the basis of physical disability and an unfair labor practice.

Disability is considered as an ample ground for the termination of the employee’s services. It must have the following characteristics: the said disability must be grave enough to cause the inefficiency of the employee, meaning that if an employee although having a physical disability can function and produce as like any other employee then there is no justification for his or her termination.

Another is that the disability although grave enough to decrease production must not be brought about by the hazards of employment, meaning that it must not be considered as an occupational disease, if so then the disability cannot be a ground for dismissing the employee’s services.

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Discrimination based on Age

A person’s willingness to continue working in order to provide for the needs of his family is admirable. However, when one reaches a certain age, it comes to a point when a body fails and unable to do the things it can when young. That is the time when a person must forgo of his or her employment. Nevertheless, it must be pointed out that age is not major factor in determining if an employee can no longer comply with the demands of his occupation. The condition of the body that determines whether one is qualified to continue with his job.

As always, the employer has ample authority to terminate an employee and break the employer-employee relationship, especially if the production process is already affected by the incompetent acts of the employee. Yet this power granted to the employer cannot be exercised without due regard to the regulations contained in our Constitution and laws.

This means that if an employee has been terminated on the sole basis of his or her age, then such act amounts to unfair labor practice or labor law violations. It is also tantamount to employment discrimination based on age. If this case occurs, the employer would be liable for any untoward damages that may be experienced by the employee.

To further stress the point, if an employee reaches a certain age wherein he would be considered rather old, and then he were terminated from work or become subject to a constructive dismissal by the employer which primary factor solely depends on his age, then the act would fall under discrimination in employment on the basis of age.

An employer has the prerogative to hire or fire an employee, however, this prerogative cannot be used as basis for discriminating against an employee, whether basing on his age or other notable factors like gender, race and religion.

A termination would be valid if it is based on acceptable reasons like if the employee is considered as a liability, already rather an asset to the company. These reasons and other civil wrongs and criminal acts can be the valid reasons for an employee to be dismissed.

An employee who is a victim of discrimination for his or her age and is unlawfully terminated for this reasons, can file for labor law violation claims and can be actually given a higher settlement amount if it is proven that the employer acted beyond his or her jurisdiction. Usually, the reason for the high claims is when an employee is discriminated for his old age and he finds it difficult to find another job again.

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Racial Discrimination, Race Relations, Ethnic Prejudice

It is not unlawful racial discrimination to subject another to racial discrimination if it is positive racial discrimination. One, without subjecting to racial discrimination, can be liable for racial discrimination in race relations, equal opportunities, employment laws.

Race relations laws are reasonably uniform ~multi-national is the authority of Article 13 EU Directive regarding race equality in respect of, e.g., social security, social protection -any form of social advantage.

Not everywhere are race relations and racial discrimination laws identical, but, broadly speaking, racial discrimination laws are similar, and, where exists effort to better race relations and achieve racial equality, protection against racial discrimination as the basis for good race relations and aspirations to racial equality, the consideration from which stem the race relations legislation as part of equal opportunities law, in seeking to reduce racial discrimination, is the same: harmonious integration of multicultural societies can only be achieved by good race relations based on racial equality -by way of the elimination of racial discrimination.

Lawful racial discrimination and unlawful racial discrimination and colour prejudice are regulated by race relations laws, e.g. the Race Relations Act 1976 under which was set up and exists the Commission for Racial Equality (CRE -the Race Relations Board) to assist ethnic minorities and help end racial discrimination and colour prejudice by promoting racial equality -now within and part of the Equal Opportunities Commission (EOC) which deals with also other equality issues under equal opportunities legislation.

Racial discrimination related equality generally are promoted in race relations by the non-discrimination policy expressing willingness in the interests of good race relations and intention to refrain from such discriminatory practices as would obstruct efforts to better race relations and racial equality, and, therefore, in furtherance of the desired race relations and aspired racial equality, not only is racial discrimination prohibited under the race relations legislation but the Race Relations (Amendment) Act 2003 and Race Relations (Amendment) Regulations 2003 with two Orders in 2004 require public bodies to promote and other bodies to treat as part of the race relations code to practice race equality refraining from less favourable treatment by ethnic or colour prejudice or any other form of race discrimination or racist harassment or racism based abuse.

Race relations laws exist not mainly to promote racial equality by making racial discrimination a criminal offence, but to cater for failure to comply with the requirements of the Race Relations Act by dealing as a civil matter with disregard for good race relations and racial equality by way of entitling parties subjected to racial discrimination to seek through the courts or tribunals dealing with race relations proportionate remedies.

Remedies for racial discrimination are not only for racial discrimination or colour prejudice in employment, nor for ethnic discrimination or race prejudice against racial or ethnic groups of people -remedies for racial discrimination exist equally e.g. for racial discrimination by a shop or a bar that subjects the individual customer (of any race or colour, including white) to less favourable treatment or by a public body or by a service industry that similarly subjects a customer to racial discrimination.

Indeed, also any individual who is not claiming for racial discrimination and is not affected by any colour prejudice or ethnic prejudice or any other kind of racial discrimination or racist harassment -nor even falls within a class under the Race Relations Act who are protected from racial discrimination, has the right in racial discrimination legislation in the interests of racial equality and good race relations to inform of any race prejudice the Commission for Racial Equality or Equal Opportunities Commission -who if given reasonable evidence that a business practices race discrimination has a duty under the Race Relations Act to investigate the alleged discriminatory practice to end any racial prejudice as well as to prevent the repetition of that race prejudice ~which it does by seeking to ensure a non-discrimination policy based race relations code of practice by that business and if not issues a race equality Non-discrimination Notice against re-occurrence of racial prejudice (that that business will be shut down if it refuses to respect racial equality and race relations laws -if racial discrimination does not cease).

Remedies for racial discrimination exist also for such situations in which one is subjected to racial prejudice by another who is not liable in race relations law and cannot be subjected to race equality legislation because is acting for someone else who neither authorised it nor knew of that racial prejudice and did not personally breach the Race Relations Act or the race relations code ~liability can also be vicarious under the Race Relations Act and then the latter bears vicarious race discrimination liability for the former’s disregard for racial equality for any loss or injury suffered as a result of race discrimination.

Racial discrimination in law is not only about the racist who claiming cultural or colour or national or ethnic supremacy with disregard for race relations advocates racism and racial hatred against ethnic refugees or immigrants not of same race inciting prejudice for colour or religion or belief.

Racial Discrimination Definitions when are looked at, basically racial discrimination as prohibited by the Race Relations Act is anyone’s in any situation and in any way treating one less favourably than another on grounds of, e.g., one’s race or colour -because of race prejudice or colour prejudice…

But racial discrimination as covered by the Race Relations Act is not limited to racial discrimination on the ground of one’s race or in the form of colour prejudice ~it is equally unlawful racial discrimination if the racial discrimination is on grounds of nationality or national or ethnic origin (indeed while race equality legislation include in the Race Relations Act mainly racial discrimination related harassment -i.e. colour prejudice based harassment or race prejudice based harassment or harassment in ethnic relations [now also harassment because of nationality or citizenship prejudice], such statutory instruments as the EE (Religion or Belief) Regulations 2003 also extend less favourable treatment detriment to cover e.g. religious prejudice harassment or belief discrimination based harassment -also on such grounds making unlawful bullying or abuse e.g. derogatory remarks affecting respectability).

Racial Harassment can be a criminal offence -also race prejudice which is not harassment can be harassment if persistent; and racial discrimination includes the violation of one’s dignity under the Race Relations Act -including by way of name-calling, as well as the creation of an environment which is hostile or degrading or offensive to one or in which one suffers intimidation ~also after the relationship has ended and also if it humiliates affecting only self-respect (taking into account in race equality lawsuits particularly also one’s own perception of those as evidence of race prejudice).

Additionally, racial discrimination does not have to be direct racial discrimination, and one can be liable as much as for direct racial discrimination also for indirect racial discrimination -although under the Race Relations Act indirect discrimination is more difficult than direct discrimination to prove in racial discrimination lawsuits.

But what is racial discrimination has essentially to do with who can be subjected to racial discrimination –who can complain of racial prejudice, who qualify under the Race Relations Act to claim for racial discrimination.

It became necessary to define who fell into the category that under the Race Relations Act can suffer because of racial discrimination -who the racial discrimination legislation should cover and by what criteria.

Colour, race, nationality, national origin, are pretty easily definable, but not so always ‘ethnicity’ or ‘ethnic origin’ or whether ‘creed’ would qualify) and the courts have given guidelines on what constitutes an ethnic group, and the characteristics which qualify for classification for purpose of legal action for racial discrimination as a member of an ethnic group or of an ethnic origin include (Mandale -v- Dowell Lee, 1983) a historical and long shared consciousness of being distinguished by it which is alive and continues to be in memory, a tradition which is cultural and includes customs and manners socially, consciousness of ancestral descent and/or geographical origin, commonness of language or literature and/or of religion as distinct from those of such other groups that are neighbouring, or being within a larger group a minority group be it dominant or oppressed ~this, except in Northern Ireland, excluded religious prejudice as racial discrimination, and the need to reconsider gave rise to the Religion or Belief Regulations.

The amended Race Relations Act and Race Relations Regulations outlaw prejudice on ground of citizenship too and emphasize equality as neither to whom nor where but the principle of it ~one equally is liable for race prejudice for aiding or abetting a discriminator, being also unlawful inciting to or inducing race prejudice or race harassment).

If one is directly in relation to, solely on the ground of, national or ethnic, racial or colour, differences is subjected to racial discrimination, Direct Racial Discrimination that is called in law ~and since the party alleged to have subjected to the ethnic or race or colour prejudice is not likely to admit to disregard for the Race Relations Act by the alleged unlawful racial discrimination and the burden is on the party who alleges racial discrimination to prove it, the ‘but for’ test is used by the courts in lawsuits for racial discrimination before them in determining on a balance of probabilities whether one has been the subject of racial discrimination in law -this test is: would not the party alleging to have been subjected to racial discrimination under the Race Relations Act not have been treated so but for the racial difference? (If would still have been treated so it is not racial discrimination -if not, it is unlawful racial discrimination.)

But, racial discrimination often takes place in the form of what is called in law Indirect Racial Discrimination -by imposing a requirement which cannot reasonably be justified and which only members of a particular e.g. ethnic or colour or racial group are unable to comply with ~for example, refusal of employment to a Sikh on the ground of a prohibition to wear a beard or long hair, which effectively barred from consideration all job applicants who were Sikhs and whose religious beliefs include the wearing of a beard or long hair was held to be indirect racial discrimination in Britain (Panesaar -v- Nestle & Co. Ltd. 1980), and uniform considerations made lawful forbidding Islamic dress (Denbigh High School -v- Begun 2006).

The difference between indirect discrimination and direct discrimination, therefore, is simply that in direct racial discrimination it suffices under the Race Relations Act to show less favourable treatment on racial grounds of the person alleging race prejudice, whereas in indirect racial discrimination it must be shown as being less favourable treatment on racial grounds of a group of persons who in light of the guidelines the Race Relations Act applies to and that the person complaining of racial discrimination belongs to that group of persons.

While also Racial Discrimination Victimization (e.g. discriminating by way of employer retaliation and firing a worker or e.g. overlooking a worker for a pay increase, or promotion) is unlawful prejudice under the Race Relations Act, including for the reason that one is suspected that one might complain of racial discrimination) in practice one alleging victimization arising from race prejudice may be expected in most legal action, especially in matters of employment, to have and to produce evidence of having in writing to, e.g., one’s employer, complained of racial discrimination -although not necessarily of racial discrimination victimisation itself (an employee’s serving on the employer at least later a Racial Discrimination Questionnaire might also help).

Action for racial discrimination normally lie to County Courts under the Race Relation Act in the normal ways of any civil action; but in matters to do with race prejudice in employment and race equality laws every employer is required to have a formal and well publicised non-discrimination policy about racial discrimination and to do so in the form of a formal written equal opportunities statement -covering also race relations and racial discrimination issues, and action for racial discrimination is in Employment Tribunals ~in either kind of action if the alleged racial discrimination involves the teaching profession or an educational establishment also the Department of Education it is expected to inform of that racial discrimination.

In Britain while in matters of race equality in employment one at no cost may complain of racial discrimination in recruitment or selection or vocational training, or of racial discrimination in the workplace, to such tribunals, one may be barred from pursuing a race prejudice lawsuit, or may face the other party’s (and possibly other) legitimate and probably untaxed costs, if one pursues a racial discrimination case which is considered to be misconceived -i.e. has no prospect of success (although this might revert in the future to frivolity or vexation in the course the legal proceedings).

Lawful Racial Discrimination is possible -racial equality laws do allow for it in, e.g., employment and race relations.

Sometimes lawfully as Positive Racial Discrimination may be practised ethnic or colour or race prejudice in promoting race equality and in the interests good race relations, e.g., by employers, in order to keep a reasonable racial balance, by intentional racial discrimination specifically recruiting from a particular colour or from a particular racial or ethnic background alone -to do so genuinely for that reason is legal racial prejudice and such positive discrimination is not unlawful racial discrimination.

This is because employers are expected by the Race Relations Act as a matter of non-discrimination policy to help promote racial equality by regular racial monitoring at the workplace to ensure that they have a reasonable number of e.g. black or Indian employees -indeed sometimes if sued for racial discrimination they may be asked to show that ~and that is sometimes done by way of positive racial discrimination in the recruitment of their workforce.

One may not claim for unlawful racial discrimination in the case of such employment as may be reasonably classed as personal services -in cases of such employment it is not illegal to exercise racial or religious prejudice and, e.g., if a Jewish family advertise specifically for a Jewish employee as nanny and would not do a non-Jew for employment as such for their children that is not unlawful racial discrimination under the Race Relations Act but perfectly lawful racial discrimination.

Nor is it unlawful racial discrimination where employment involves a requirement that one must be of a specific race and that requirement is a genuine occupational qualification -such as in relation to employing only black actors to play, e.g., in Shakespeare’s play ‘Othello’ the role of the black character called so.

And, of course, Racial Discrimination Segregation it would not be classed as if, e.g., one who often prides himself “I am a African” is separated from a disrupting colleague who needles “He don’t speak proper English.”

(Laws change –always ascertain current law)
The author has a website at: http://www.geocities.com/eoa_uk