Equality mainstreaming: turning theory into practice
More and more organisations are adopting a mainstreaming approach to equal opportunities, yet there is still much confusion about what the term means and the best way to deliver a mainstreaming strategy. Carol Foster takes a detailed look at the evolution of mainstreaming, and highlights some of the best-practice tools available to help organisations implement a mainstreaming policy.
"Mainstreaming" is a relatively new approach to delivering equality within an organisation. It is primarily a long-term strategy aimed at ensuring that equal opportunity principles and practices are integrated into every aspect of an institution from the outset. This is in contrast to the historical view of equality considerations being seen as an "add-on" to the "everyday" functions and business of an organisation.
The focus should not only be internal (mainstreaming equality principles into employment policies and practices), but also external (mainstreaming equality principles into customer service delivery). Applied properly, mainstreaming not only ensures compliance with national and international equal opportunities legislation, but will also improve an institution's overall effectiveness and performance (See below).
In box 1, we discuss international mainstreaming expert Teresa Rees's assessment of the evolution of mainstreaming - from gender equality initiatives based on equal treatment in the 1970s, through positive action in the 1980s, to the mainstreaming approach that emerged in the 1990s.
Specialist knowledge
It is essential to recognise that mainstreaming is not a replacement for equality legislation or for specialist equal opportunities teams. Research into mainstreaming for the Equal Opportunities Commission concluded:
"Specialist support teams have the detailed knowledge and expertise of different sources of discrimination which will enable them to provide the necessary back-up for the mainstreaming process and to respond to other equality issues. They will also be able to ensure that the arguments for mainstreaming can be updated on the basis of firm evidence."1
Mainstreaming provides a framework that facilitates and complements equal opportunities legislation and other equality measures, such as positive action. As such, the role of equal opportunities policies and diversity experts remains vital. Recent research confirms that the diversity function is key to the successful implementation of a mainstreaming strategy and that, consequently, these roles are actually increasing in status and seniority within organisations (See Why diversity is good for business ).
Origins
The mainstreaming approach to equal opportunities stems from the Fourth World Conference on Women in Beijing in 1995, where it emerged as a strategy for tackling gender inequality. To enhance the work for the advancement of women at the national, subregional/regional and international levels, the Action Plan adopted at the conference called on governments, the United Nations system and all other relevant organisations: "to promote an active and visible policy of mainstreaming a gender perspective . . . in the monitoring and evaluation of all policies and programmes."2
The generation and dissemination of gender-disaggregated statistics for planning and evaluation was seen as essential to this process.
Governments were required to report on progress at the Beijing Plus 5 conference held in New York in 2000. This prompted many governments, non-governmental bodies and international organisations to start implementing a mainstreaming approach to gender equality.
As a result, mainstreaming has become an internationally recognised concept and many multinational organisations, including the European Union (EU) and government agencies have produced guidelines for mainstreaming gender equality principles into public policies and procedures.
The Nordic countries, in particular, have been at the forefront of developing gender mainstreaming approaches. Sweden, along with Canada and New Zealand, has well-developed national gender mainstreaming policies and action programmes (See box 2).
A fairer society
Although focused on gender equality, the ultimate goal of mainstreaming is to create a fairer society by putting people, and their diverse needs and experiences, at the heart of public policy-making. The EU, for example, when discussing gender mainstreaming, asserts that:
"The promotion of [gender] equality must not be confused with the simple objective of balancing the statistics: it is a question of promoting long-lasting changes in parental roles, family structures, institutional practices, the organisation of work and time, [women's] personal development and independence, but also concerns men and the whole of society, in which it can encourage progress and be a token of democracy and pluralism."3
Gender to diversity
While the initial focus of mainstreaming theory and practice was very much on gender equality and gender-based analysis, the strategy has been applied increasingly to other equality dimensions, such as race and disability. In the UK, mainstreaming tends to take the inclusive approach and is used to address a range of inequalities, which can also include, for example, sexual orientation, age and religion.
Equality mainstreaming has been endorsed at both central and local government levels, and fully incorporated within the devolved administrations. This all-embracing approach is being reinforced with the introduction of European equality legislation extending the areas of discrimination outlawed, and which will apply to both the public and private sectors, regardless of the size of the organisation.
Although the original emphasis of mainstreaming work was in the public sector and focused on public policy, it has become an increasingly important strategy for companies wanting to ensure that they not only fully meet their legal obligations in relation to equal opportunities, but also function more effectively and productively.
The mainstreaming approach to equal opportunities has been incorporated increasingly into employers' "managing diversity" strategies. This has stemmed from the growing evidence that mainstreaming equal opportunities principles into an organisation's policies and practices delivers significant business benefits, such as better recruitment, increased retention, improved understanding of markets and communities, and an enhanced public reputation.
In a recent survey4 of 140 leading organisations across the private and public sectors, four out of five respondents saw a direct link between their diversity strategy and improved performance - whether in commercial productivity or the delivery of better public services (See Why diversity is good for business ).
Integrating mainstreaming principles into employment practices delivers cost savings by encouraging a more productive use of human resources. Introducing equality mainstreaming on the "business" side also brings rewards. For the public sector, this translates into the more efficient delivery of higher quality services to the community. In the private sector, this means greater profitability through an enhanced responsiveness to customer requirements.
Many companies now realise the commercial importance of mainstreaming customer service as a device to better understand, and thereby meet, the needs of their customers. A company that can anticipate the preferences of its present and potential customers gives itself a significant competitive advantage in the marketplace.
Public and private reform
However, Rees warns that while managing diversity strategies will benefit individual companies and their employees, on their own they will not remove the subconscious bias and discriminatory systems that lie at the root of inequality within society, and which cause the disadvantage in the first place. To do this, she stresses the importance of mainstreaming equality priorities into all aspects and all levels of public policy and decision-making processes (for more detailed discussion see box 1).
Implementation
Mainstreaming equality into employment practices and customer service entails considering the equal opportunities dimension of a policy or project systematically - from inception to design, implementation and review. It involves integrating equality concerns into all policies and areas of decision-making and at all levels. Most importantly, mainstreaming should be seen as a more effective way of working rather than as an additional "cost" or "luxury".
Equality mainstreaming is a fairly new concept and there are, as yet, no hard and fast rules about the best method of implementation. Swedish mainstreaming experts Ulrika Lorentzi and Helén Lundkvist argue that the components required for mainstreaming differ little from any other kind of organisational change work. They also emphasise that the ways in which the mainstreaming agenda are pursued will differ depending on the size and nature of the organisation involved.
Best-practice tools
Below is a selection of some of the best-practice guidelines available to help institutions adopt a mainstreaming approach in employment. Most of the work on implementing mainstreaming has been in the public sphere in relation to gender. However, public sector guidelines can often be adapted for other areas of discrimination and transferred to private enterprises.
Rees's analysis of the tools and the accompanying prerequisites necessary for successful gender mainstreaming in the public sector provides an authoritative and comprehensive list of the elements required to develop a mainstreaming strategy in any organisation. Adapted sensitively, these can also be used to encompass other equality dimensions (See box 4).
Diversity mainstreaming guidelines
The extensive mainstreaming activity being undertaken in the public sector has resulted in the publication of several good-practice guidelines to support different aspects of a mainstreaming strategy.
For example, the Employers' Organisation for local government has issued guidelines to help local authorities identify and remove barriers to fair and equal treatment in services and employment. They provide a common approach for dealing with equality for race, gender and disability, and the same framework can be used for addressing all disadvantaged groups (See box 5).
The Scottish Assembly has also devised a helpful, concise list of key questions that an organisation should ask when implementing an equality mainstreaming strategy (See box 6).
Monitoring guidelines
Monitoring is an especially important and delicate component of the mainstreaming process, and the Equality Commission for Northern Ireland has published an extremely useful consultation guide to equality monitoring5. Although set within the context of Northern Ireland equality legislation (See box 3), it provides an excellent basis for any organisation designing a multi-equality monitoring framework to support its mainstreaming strategy.
Giving background information and practical guidance on systems and procedures to help organisations and companies meet fair employment monitoring obligations, the booklet includes detailed instructions on how to quantitatively and qualitatively monitor the nine defined equality groups in an efficient and consistent manner. It is divided into four key sections: who should be monitored; when monitoring should take place; how monitoring should be adopted, including the potential problems in relation to sexual orientation monitoring raised by Rees (See box 2); and a step-by-step guide detailing how to monitor the workforce, covering employees, applicants, appointees, promotees and leavers.
The guide also contains useful additional information, including definitions, as well as simple pro forma documentation to be used or adapted to make monitoring as easy as possible.
CRE monitoring guidelines
The Commission for Racial Equality has issued comprehensive guidelines relating to ethnic monitoring6 (See box 7). Designed to help public authorities fulfil their new duties under the Race Relations (Amendment) Act 2000 (See box 3), the guidelines provide essential information for any organisation wanting to implement ethnic monitoring to support an equality mainstreaming strategy.
Successful practice
Finally, recent research from the Schneider-Ross consultancy gives an insight into what measures are actually working in practice. Investigating the important factors that are emerging as contributing to the successful incorporation of a mainstreaming approach into an organisation, the research identifies a four-stage process to systematically integrate equality and diversity values into an institution's business culture and processes.
Covering both the private and public sectors, the research reveals several common success factors contributing to the mainstreaming of diversity and equality, despite the very different structures and business aims of the two sectors. The research vindicates fully the mainstreaming approach. It concludes that two years of a comprehensive approach to mainstreaming - leaving no area of the business uncovered - has as much effect (or more) than 20 years of piecemeal change. (The findings are discussed fully in Why diversity is good for business )
The way forward
Equality mainstreaming appears to be finally moving from being a worthy, but woolly, theoretical concept to a practical strategy that is starting to deliver real results in both the public and private sectors. It is a serious tool not only for promoting social inclusion and justice in society, but also for increasing productivity in the workplace.
The incorporation of equality mainstreaming into policy-making at international and national levels is particularly important, given that it is only here that the root causes of disadvantage can be tackled. In the UK, the embedding of equality and diversity mainstreaming into the devolved institutions is especially exciting. Much can be learnt from the administrations in Wales, Northern Ireland and Scotland, who are, in many respects, leading the way in taking a truly holistic approach to implementing a mainstreaming strategy.
At the same time, a mainstreaming approach to equal opportunities is increasingly being adopted by employers, who not only want to ensure that their working practices are just and equitable, but recognise that extending equality and diversity mainstreaming into customer service processes will raise profits.
However, Rees warns that there is still considerable variability in organisations' efforts to introduce a mainstreaming strategy. "Attempts to mainstream tend to be under-resourced, are not for the most part backed up with appropriate training and expertise, and there is often more talk than action," she explains.
"Worst of all, some organisations expressing an apparent commitment to mainstreaming are in the process of dismantling equality units, firing equality experts, and getting rid of their special budgets for equality, because, 'after all, we are all mainstreaming now'. That is going backwards."
Rees particularly cautions against the "tick and bash" approach: "That is where a piece of paper is attached to all policy documents and the question posed: 'has this proposed policy any implications for [say] men or women? If not, tick here'. In that kind of institutional culture, mainstreaming is reduced to a paper exercise. Unfortunately, the existence of the exercise invokes complacency and actually reduces the attention being paid to equality," she says.
On the positive side, equality and diversity mainstreaming is now on the agenda of a wide range of organisations. This increased awareness has led to the development of expertise and supporting tools, as well as a growth in experience and examples of good practice. More importantly, there is a mounting body of evidence to show that implementing a diversity and equality mainstreaming strategy does significantly improve an organisation's performance and effectiveness.
As can be seen, if implemented comprehensively, equality mainstreaming has the potential to dramatically advance the life chances and opportunities of groups that have historically suffered discrimination and disadvantage.
The December issue of EOR will feature a case study of the Co-operative Bank, who have adopted a mainstreaming approach to diversity and equal opportunities. The Bank sees the promotion of equal opportunities as key to its underlying principle of partnership and as benefiting not only the company, but also its employees, customers and the communities in which it operates.
1 Mainstreaming gender equality in local government: a framework (Equal Opportunities Commission 1997), available from www.eoc.org.uk.
2 The United Nations fourth world conference on women: platform for action (United Nations 1995), available from www.un.org/womenwatch/daw/beijing/platform/.
3 Incorporating equal opportunities for women and men into all Community policies and activities, Commission communication on mainstreaming (Council of Ministers 1996), available from www.europa.eu.int/comm/.
4 The business of diversity (Schneider-Ross 2002)
5 Equality monitoring: consultation document (Equality Commission for Northern Ireland 2002), available from www.equalityni.org.
6 Ethnic monitoring: a guide for public authorities (Commission for Racial Equality 2002), available from www.cre.gov.uk.
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Teresa Rees, in her presentation to the Equal Opportunities Commission's gender mainstreaming seminar, defines three stages in the evolution of strategies to deliver equal opportunities: "tinkering" — equal treatment in the 1970s; "tailoring" — positive action in the 1980s; and "transforming" — the mainstreaming approach arising in the 1990s1. While focusing on gender equality, her assessment is pertinent to other areas of inequality. Tinkering "Equal treatment" characterised the legal measures adopted in the 1970s to promote equality and is rooted in the idea that women and men should be treated the same as each other. However, in effect, it often meant that women were treated the same as men — as men are seen as the norm. Rees argues that sometimes people have to be treated differently in order for them to be treated equally. For example, women may be treated the same as men in that, if they have many years of continuous service, they too become eligible for promotion. Yet, in practice, far more men are likely to have uninterrupted service than women. This effect becomes even more obvious in relation to disability. The Disability Discrimination Act 1995 requires that employers make "reasonable adjustments" for disabled people to ensure that their opportunities are equal to those of non-disabled people. Tailoring "Positive action" characterised the 1980s. This model recognises the "difference" as well as the "sameness" between women and men. It involves addressing past disadvantages or discrimination experienced by women and "making good". Women-only training courses were designed, for example, to encourage more women into male-dominated areas by creating a "level playing field", so that women were on the same "starting line" as men. Such positive action measures have been the source of many examples of good practice in training and employing women, and have also been effective in helping to tackle the barriers faced by ethnic minorities in the workplace. However, some positive action measures were, again, designed to assist women to become more like men. Rees points out that positive action projects also tend to be piecemeal, temporary and precariously funded. They also leave the "mainstream" unaffected so that the sources of disadvantage remain intact. Transforming "Mainstreaming", which started to receive significant attention in the 1990s, turns the attention away from the individual and their rights and from their deficiencies and disadvantages. It focuses instead on the systems and structures that produce those disadvantages in the first place, and seeks to integrate equality into those systems and structures. Rees notes the parallel with policies that seek to address institutional racism, as highlighted in the Stephen Lawrence inquiry. A long-term strategic approach to gender mainstreaming complements, rather than substitutes, the legal right to equal treatment or the need to address women's "disadvantages" or remove obstinate blockages through positive action. At the root of gender mainstreaming is the idea of the "politics of difference". It recognises that existing systems are geared for a dominant minority that in effect discriminate against some men as well as most women. Rees argues that existing systems are far from being gender-neutral — although it is often assumed that they are. Mainstreaming principles Rees identifies three principles that underlie gender mainstreaming and can be applied to any equality dimension: 1 Regarding the individual as a whole person This approach means challenging stereotypical assumptions and accommodating difference — as an employer and as a deliverer of services. It entails treating people as individuals, rather than as being necessarily typical of their sex or equality group. For example, all individuals should be treated as people who might be parents or have elderly relatives to look after — without making stereotypical assumptions about them. So, while more importance must be given to family-friendly arrangements, it should not be assumed that everyone is heterosexual or necessarily lives in the conventional idea of a nuclear family with gender-stereotypical roles. It also means looking at employees as people who may have a role that they wish to develop outside their working life, such as in a trade union, the local community or education. Hence, "work—life balance" becomes an issue for all employees — not just for those with caring responsibilities. 2 Democracy The second principle highlights the importance of democracy to mainstreaming. There is a concern to create cultures and organisations where people, both employees and customers, are able to express their views and needs. This is so that policies can be designed on the basis of real need, rather than on the basis of historical patterns or incorrect assumptions. It also means considering the implications of new measures from the perspective of as many groups as possible, including those whose views are rarely heard, and specifically taking steps to hear those views. This places an emphasis on communicating with all groups, remembering, for example, the importance of using a large font size for the visually impaired and providing translation of important documents into minority languages. This process will be helped by, where possible, ensuring these groups are represented in the organisation's decision-making processes. 3 Social justice The third principle revolves around the concepts of fairness and equity and is the "social justice" driver of mainstreaming. Rees believes that this is what distinguishes mainstreaming from the human resource management approach known as "managing diversity", although she accepts that many of the tools invoked to mainstream equality and to manage diversity are the same or similar (see box 2). Driven by the desire to achieve business benefits for the organisation, Rees contends that managing diversity denies the politics of difference by focusing on individuals. Such strategies cannot address the group characteristics that produce the disadvantage in the first place. She argues that managing diversity alone will not tackle the unequal systems that perpetuate inequality. Mainstreaming, however, entails adhering to ideas of social justice in the allocation of opportunities and requires the development of public policies and practices that focus attention on those who have been historically disadvantaged (see box 2). 1 What is gender mainstreaming, paper presented
to the Equal Opportunities Commission seminar on gender mainstreaming
(Rees 2002). |
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Rees identifies seven tools for gender mainstreaming1 . With care, these can be applied to other equality dimensions. For example, Rees suggests that statistical monitoring may not be appropriate for mainstreaming in relation to sexual orientation, as it could involve "outing" people. 1 Gender-disaggregated statistics Rees points out that few organisations use gender-disaggregated statistics as a management tool. However, she argues that these are essential for reviewing the effectiveness of policies, establishing patterns in resource allocation and monitoring performance. Public sector authorities, in particular, have a duty to know who benefits from their services. Swedish regional authorities, who all employ gender mainstreaming experts, have developed software packages to assess who benefits from services on a regular basis. Rees says it may be perfectly acceptable that one sex rather than another should benefit more from specific services or budgets, as long as this reflects evidence-based need, rather than being simply demand-led or the result of chance or indirect discrimination. 2 Equality indicators Raw data, even when disaggregated by gender, is limited in what it shows. Baseline statistics, therefore, are needed against which performance targets can be measured. Equality indicators, asserts Rees, are crucial for benchmarking purposes, as raw data can be meaningless for the purposes of making comparisons. 3 Gender impact assessments Gender impact assessments are designed to assess in advance the impact of any proposed policy or legislation on men and women respectively, and to address any undesirable differences that may occur. Rees warns that some organisations using gender impact assessments are of the view that this alone constitutes a gender mainstreaming approach, whereas it is merely one tool that needs to be used alongside others. Gender impact assessments are routinely used in some Nordic countries. The 3R method developed by Gertrud Astrom and the Swedish Association of Local Authorities recommends focusing on answering three questions in relation to any proposed policy: Representation — what is the gender distribution of the relevant decision-making bodies?
Resources — what is the distribution of, and access to, resources for men and women?
Reality — do both men and women profit from the measure — who gets what, why and on what conditions?
4 Monitoring, evaluating, auditing It is impossible to tell if mainstreaming is delivering without monitoring, evaluating and auditing policies, contends Rees. Gender equality needs to be regarded as a performance indicator and treated the same way for evaluation purposes as, say, balancing the books. 5 Gender balance in decision-making Rees argues that a gender balance in decision-making is needed to fully achieve gender mainstreaming, particularly in the public sphere. For example, three EU member states have legislation to ensure a gender balance on public bodies. Committees in Sweden and Italy must have a lower limit of both sexes of 30%, and of 40% in Finland. Generally, Rees believes targets are helpful, provided that sanctions are imposed for failure to reach them. 6 Engendering budgets Budgets should also be "engendered". Rees asserts that it is legitimate to assess what proportion of public budgets are spent on men and women respectively. Such data is essential to ensure resources are directed strategically and equitably. This tool has been developed in Canada, Sweden and Norway. 7 Visioning "Visioning" is the most difficult element of mainstreaming, according to Rees. It is used to help understand and address how existing practice and institutional arrangements, however inadvertently and subconsciously, disadvantage more women than men (or vice versa). Rees gives the example of women on a six-week, mixed recruitment course for the UK armed services. While outperforming men on many of the tests, they experienced difficulties with the daily marching drills, with many developing inflamed or dislocated pelvises. This was because the regulation stride length was the average stride length of the average male. Having to march to the male stride symbolises what gender mainstreaming is seeking to combat. Prerequisites for mainstreaming Rees says that a set of additional prerequisites are also required to successfully implement gender mainstreaming. These include: a legal duty to promote equality;
appropriate institutional arrangements;
awareness-raising;
training;
expertise;
reporting mechanisms;
commitment from the top;
incentives to "build ownership";
sanctions; and
resources.
Rees explains the importance of the prerequisites. For example, a legal imperative to promote equality is essential to ensure that gender mainstreaming is taken seriously. In addition, institutional arrangements to support mainstreaming are vital. This involves the clear allocation of responsibility, such as a committee backed by an equality unit, with reporting mechanisms and sanctions. It should also include a reference to gender mainstreaming in the corporate plan, with aims and objectives, and specification of how they will be met. Many people, Rees believes, have been given responsibility for gender mainstreaming without any awareness-raising, training, tool-kits or guidelines. As Swedish mainstreaming expert Agneta Stark says, if a manager were suddenly given responsibility for budgeting, they would not be expected to exercise that function without having training and expertise. Awareness-raising and training are crucial, as well as commitment from the organisation's leaders. Ownership by staff throughout the organisation is also essential. This can be encouraged by providing financial incentives to achieve targets, integrating equality into performance review systems and by cultural change. Finnish mainstreaming expert Liisa Horelli argues that to introduce gender mainstreaming successfully a team is needed comprising a departmental function expert, a gender mainstreaming expert and a cultural change expert. Finally, Rees believes that appropriate
resources are rarely allocated for mainstreaming, because facilitating
equal opportunities is seen primarily as a cost. Until the same
consideration is given to the financial penalty and missed opportunities
of not mainstreaming equality and diversity properly, she argues that lack
of funding will remain a major problem to the successful implementation of
a mainstreaming strategy. |
1 What is gender mainstreaming? (Rees 2002).
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Equality mainstreaming has been endorsed by the UK government and incorporated into the devolved institutions of Northern Ireland, Scotland and Wales. UK government Mainstreaming is regarded as a crucial element of the government's Modernising Government agenda and all government departments have been issued with guidelines on Policy appraisal for equal treatment1 and Gender mainstreaming for policy-makers1. Produced to help policy-makers consider the impact of their policies on women, people from different ethnic minorities and disabled people, the guidelines are designed to ensure that policy outcomes are fair, lawful and practical, and promote equal opportunities in the widest sense. This includes considering the policy impact "on those who have found that the actions and attitudes of others [place] obstacles in the way of equality of opportunity". A mainstreaming approach has also been adopted to valuing diversity in employment practice, with the government setting specific employment targets for women, ethnic minorities and disabled staff at all levels in the civil service (EOR 85 and 91). To support its mainstreaming strategy, the civil service has adopted a wide range of innovative positive action initiatives designed to bring in and develop talent from groups under-represented at the senior levels of the service. These are detailed in the cabinet secretary's annual report to the prime minister on diversity in the civil service2. The Race Relations (Amendment) Act 2000 In addition, the amended Race Relations Act gives some 40,000 public authorities a new, enforceable statutory duty to eliminate race discrimination and promote race equality and good race relations (See New era for race equality). This means that they must take account of racial equality in the day-to-day work of policy-making, service delivery and employment practice. To help them achieve this, certain public authorities have to implement a race equality scheme that covers specific employment duties. While the new Act applies only to issues of race equality, there has been strong lobbying for a similar public sector duty to be introduced to promote equal opportunities in relation to gender and disability, and to the other equality groups that will be protected under new legislation (See box 4). Northern Ireland The Good Friday Agreement emphasised equality of opportunity as a cornerstone of the devolved administration in Northern Ireland, and the Northern Ireland Act 1998 places a statutory obligation on public authorities in the province to carry out their functions "with due regard to the need to promote equality of opportunity: between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation;
between men and women generally;
between persons with a disability and persons without; and
between persons with dependants and persons without."
In addition: "public authorities must have regard to the desirability of promoting good relations between persons of different religious belief, political opinion, or racial group." The new duties of public authorities include the production and review of equality schemes, including Equality Impact Assessments (EQIAs), designed to determine the extent of differential impact upon the nine equality categories. The overall aim is to ensure a culture for public administration in Northern Ireland based on transparency, consultation, inclusiveness and policies that promote equality of opportunity. The Equality Commission for Northern Ireland, an independent public body also established under the 1998 Act, warns that the processes involved in conducting an EQIA should not be looked on as an end in themselves. Instead, it should be borne in mind that the aim of the assessment is the promotion of equality of opportunity and thus the outcomes of the EQIA are of primary concern. Scotland The Scotland Act 1998 gives the Scottish Parliament power to encourage equal opportunities and to place duties on Scottish and cross-border public authorities to observe the equal opportunities requirements in their work in devolved areas. The Act's definition of equal opportunities is very broad: "the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs or opinion, such as religious beliefs or political opinions." The Scottish Executive's equality strategy, Working together for equality, was published in November 2000. It focuses on three strategic objectives: making better policy and providing better services;
promoting equal opportunities and tackling discrimination; and
being a good employer.
Wales The Government of Wales Act (1998), the statute that established the National Assembly for Wales, requires the Assembly Government to: "make appropriate arrangements with a view to securing that its functions are exercised with due regard to the principle that there should be equality of opportunity for all people." The Welsh equality duty represents a significant divergence from the equality law applying elsewhere in the UK. While equal opportunities legislation across the UK has put the focus on individuals seeking remedy for any discrimination that they believe they may have faced, the Welsh duty requires the Assembly to proactively pursue equal opportunities. Moreover, under the duty, the Assembly can be subject to judicial review in the courts (and, potentially, investigation by the Welsh Administration Ombudsman) if groups or individuals feel that the Assembly has failed to comply with its terms. The Welsh Assembly Government has
adopted a raft of equality reforms, which have broadened the scope beyond
an initial focus on disability, race and gender to consider equality of
opportunity for groups defined by language, sexuality, age and faith, as
well as in relation to gypsy-travellers. Key features of this new
mainstreaming approach to equality matters are discussed in Welsh equality duty prompts unprecedented
reform. |
1 Available from www.cabinet-office.gov.uk.
2 The cabinet secretary's annual diversity report to the prime minister is available from www.diversity-whatworks.gov.uk.
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The Treaty of Amsterdam 1997, which amended the Treaty of Rome by explicitly referring to the obligations to aim at the "elimination of inequalities and the promotion of equality between men and women" (Articles 2 and 3), gives a legal basis for the European Union's (EU) commitment to mainstreaming (see main article). Article 13 of the Treaty of Amsterdam also extends the scope of discrimination law to prohibit discrimination on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. The revised 1976 Equal Treatment Directive will bring in new legislation to strengthen the rights of women, including the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds of sex. These latest developments are summarised below. The Treaty of Amsterdam Current UK anti-discrimination law covers sex, marital status, race and disability. However, Article 13 of the Treaty of Amsterdam provides the EU with a legal basis to take action to combat discrimination on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. As the general principles of Article 13 are not themselves legally binding, in 2000 the Council of Ministers approved two new Directives providing a common legal framework of minimum protection against discrimination throughout the EU. Anyone working, or simply travelling, within the EU will be entitled to the same minimum level of protection from discrimination in all the member states. The Employment Directive (See EU Employment Framework Directive: an EOR guide) requires member states to make discrimination unlawful on grounds of religion or belief, disability, age or sexual orientation in employment and training. It affords protection in the following areas: employment; self-employment; working conditions; access to vocational training and work experience; and membership of workers', employers' or professional organisations.
The Race Directive provides much wider protection in relation to race discrimination and includes the following: employment; self-employment; working conditions; access to vocational training and work experience; membership of workers', employers' or professional organisations; education; social protection, including social security and health care; "social advantages" such as concessionary fares and subsidised meals; and access to goods and services that are available to the public, including housing.
Positive action In addition, both Directives recognise that equal treatment may not be sufficient to overcome the weight of accumulated disadvantage experienced by discriminated groups. They, therefore permit member states to take positive action measures to "prevent or compensate for" situations of inequality. Compliance and implementation Compliance with the Race Directive is required by 19 July 2003. Compliance with the Employment Directive in relation to religion and sexual orientation is required by 2 December 2003, and in relation to disability and age by December 2006. Member states will be expected to ensure that their laws, regulations and administrative provisions, as well as employment contracts and collective agreements, are non-discriminatory. Government action The government has responded to these developments by publishing the consultative document, Towards equality and diversity, which sets out how it intends to implement the Directives (See Implementing the Equality and Race Directives: an EOR guide). Legislation on race, sexual orientation and religion will be implemented first, in the second half of 2003. The changes to the Disability Discrimination Act 1995 (DDA) required by the Employment Directive, including the removal of the small employers' exemption from the DDA, will take place in October 2004. The government intends to prepare legislation and publish guidance on the Directive's age provisions well before December 2006 to ensure that employers have good time to prepare. Scope of the Directives The government document also highlights a number of important points that employers should note about the scope of the Directives: they apply to both the public and private sectors, regardless of the size of the organisation (there is no small firm exemption);
"pay" is likely to include all types of remuneration and fringe benefits, such as performance-related pay, group insurance (such as private healthcare insurance) and occupational pensions;
"access to employment" covers employment agencies — and bodies that award licences or qualifications needed to carry out a particular job (eg the Public Carriage Office, which licenses taxi drivers in London); and
"vocational training" has a wide meaning. It covers not only in-house training provided by an employer, but also courses or studies that provide training for jobs or professions — including most university degrees and many other further and higher education courses (for example, teacher training courses).
Revised Equal Treatment Directive Other significant legislation to promote equality in the workplace was approved by the European Parliament in June 2002. Revising the 1976 Equal Treatment Directive, the new legislation provides Europe-wide definitions for both "harassment" and "sexual harassment" and states that both are discrimination on the grounds of sex and therefore prohibited. The new rules will also strengthen the rights of women on maternity leave by providing them with the right to return to the same job or an equivalent post. In addition, member states will be required to provide effective compensation for victims of sex discrimination and to take steps to monitor and promote equality. These include creating a body for the promotion, analysis, monitoring and support of equal treatment of all persons without discrimination on the grounds of sex. Monitoring information may include statistics on proportions of men and women at different levels of an organisation and possible measures to improve the situation in cooperation with employees' representatives. Member states have three years to
implement the new rules. They will also be required to submit regular
reports on any measures adopted to comply with the Treaty to the
Commission, who will publish a four-yearly report establishing a
comparative assessment of any measures
undertaken. |
1 Available from the Employers' Organisation for local government at www.lg-employers.gov.uk.
1 Social Justice Action Note 3 (2001) is available from www.scotland.gov.uk.
1 Available from the CRE at www.cre.gov.uk.
