Introduction

Some workplace policies may seem fair on the surface but can unintentionally disadvantage certain groups. For instance, requiring all employees to work late may disproportionately affect those with caregiving responsibilities, such as parents or those caring for elderly relatives. This is an example of indirect discrimination, where seemingly neutral rules create unequal impacts.

Definition of Indirect Discrimination
Indirect discrimination in the workplace arises when the application of neutral policies or rules unintentionally results in unequal treatment of particular groups. Often, employers may be unaware that such policies could disadvantage certain segments of their workforce. The discriminatory impact becomes apparent when these policies affect individuals disproportionately, based on shared characteristics.

Direct vs. Indirect Discrimination
The key distinction between direct discrimination and indirect discrimination lies in the evidence required to establish unfair treatment. Direct discrimination requires a clear causal link between the less favourable treatment and a protected characteristic, such as race or gender. Conversely, indirect discrimination exam- ines whether a policy, criterion, or practice (PCP) disadvantages a group and, by extension, an individual, regardless of the original intent. Understanding the nuances of indirect discrimination in the workplace requires a careful examination of legal frameworks and the core characteristics of discrimination.

Legal Framework on Discrimination in Kenya

Article 27 of the Constitution of Kenya, 2010 (the Constitution) guarantees every person equality before the law, including equal protection and equal benefit of the law. It affirms the right to fully enjoy all fundamental freedoms and ensures equal participation for both men and women in all aspects of life.

The provision also mandates the state to take legislative and policy measures, such as affirmative action, to address historical injustices and protect against all forms of discrimination.

The enactment of the Employment Act (Cap. 226) Laws of Kenya (the Act) fulfils the state’s constitutional mandate to protect employees against employment discrimination. Section 5 of the Act places upon the employer the responsibility to foster equal opportunities and eliminate discriminatory practices in their employment policies. In reiterating the constitutional grounds for prohibiting discrimination against employees or prospective employees, the Act covers all aspects of employment, including recruitment, training, promotion, and termination.

To address employment inequality, the Act specifies that certain actions by employers are not considered discriminatory. These include affirmative action measures, job requirements based on inherent needs, employment in accordance with national policies, and restrictions necessary for state security. In legal proceedings, employers must prove that alleged discrimination did not occur and was not based on prohibited grounds.

Case Study

The key characteristics of indirect discrimination were articulated by the Supreme Court in the case of Simon Gitau Gichuru v Package Insurance Brokers Ltd [2021] KESC 12 (KLR) as follows:

“a.  In none of the various definitions of indirect discrimination was there any express requirement for an explanation of the reasons why a particular provision, criterion or practice put one group at a disadvantage when compared with others.

“b. The contrast between the definitions of direct and indirect discrimination. Direct discrimination expressly required a causal link between the less favourable treatment and the protected characteristic. Indirect discrimination did not. Instead, it required a causal link between the provision criterion or practice and the particular disadvantage suffered by the group and the individual.”

Consider, for instance, the earlier example of an organisation implementing a late-shift policy. While such a policy may appear neutral and non-discriminatory at first glance, a closer analysis reveals its potential for indirect discrimination. This is because the organisation may not have adequately considered the differing societal expectations and realities, particularly those affecting women or other individuals who may be uniquely impacted, as previously discussed.

One of the key issues is safety concerns. Women often face heightened safety risks when travelling at night, including an increased risk of harassment, assault, or general insecurity. This disparity creates an additional layer of vulnerability for female employees compared to their male colleagues.

In addition to safety, cultural norms and domestic responsibilities play a significant role. In many societies, particularly in Africa, women are traditionally expected to take on primary caregiving and household duties. A policy that mandates late-night shifts could, therefore potentially create a conflict between professional and domestic obligations.

Moreover, some cultures impose implicit curfews on women, with societal expectations dictating that they should be home by a certain time. A work policy that disregards these deeply ingrained norms could expose female employees to significant societal pressure or even direct familial conflict. This is not to say that these are the only societal expectations that should be considered, nor that they apply universally to all women. However, these factors illustrate how a seemingly neutral policy could potentially create unintended but significant disadvantages for a specific group, warranting deeper scrutiny.

The Supreme Court in Simon Gitau Gichuru v Package Insurance Brokers Ltd (supra) outlined key principles for identifying and addressing indirect discrimination as follows:

• No explanation requirement: It is enough to show that a PCP results in a disadvantage for a particular group without needing to explain the underlying reasons for this disadvantage.
• Type of discrimination: Direct discrimination involves explicit bias, while indirect discrimination arises from neutral PCPs that disproportionately affect certain groups.
• Diverse causes of disadvantage: Factors like culture, socio- economic status, physical abilities, or education can make it harder for some groups to comply with a PCP.
• Group impact: Not all group members need to be affected. It is sufficient if the PCP disadvantages a significant portion of the group.
• Statistical evidence: Discrimination can be shown through data, such as employment or education statistics.
• Justification: Employers can defend a PCP if it serves a legitimate aim and is proportionate.

Safeguards Against Indirect Discrimination

There are various ways of safeguarding against indirect discrimination as detailed below:

The key distinction between direct discrimination and indirect discrimination lies in the evidence required to establish unfair treatment. Direct discrimination requires a clear causal link between the less favourable treatment and a protected characteristic, such as race or gender. Conversely, indirect discrimination examines whether a policy, criterion, or practice (PCP) disadvantages a group and, by extension, an individual, regardless of the original intent.

i.  Neutral and Fair Policies

As established, a policy’s apparent fairness on paper does not guarantee its equitable application to employees. Employers can ad- dress this by conducting impact assessments, or by offering training and gathering feedback from affected employees to ensure policies are applied equitably.

ii.  Reasonable Accommodation

If a policy is found to have discriminatory effects, employers should mitigate the impact by offering reasonable accommodations, such as providing transport for late shifts. However, these accommodations should not cause undue hardship or excessive burden to employers.

In the case of Simon Gitau Gichuru v Package Insurance Brokers (supra), the Court held that an employer must provide reasonable accommodation to a sick or incapacitated employee, or demonstrate that providing such accommodation would cause undue hardship.

Additionally, in Kenya Plantation and Agricultural Workers Union v Rea Vipingo Plantations Limited & Another [2015] eKLR, the court clarified that reasonable accommodation goes beyond the grant and exhaustion of sick leave. It may entail temporarily modifying the job to suit the employee’s medical restrictions, limiting working hours, physical modifications and reassignment of an employee to a different job within the same enterprise. The Court further affirmed that the duty to provide reasonable accommodation to employees is predicated on the right to equal opportunity.

iii.  Anti-Discrimination Training and Awareness

Indirect discrimination can manifest in various forms in the workplace, even among employees, which could spell trouble for the employer. As such, imparting the knowledge of such discriminatory instances in the employees is a great first step to mitigating the frequency of complaints for discrimination purposes.

For instance, the line between casual workplace banter and indirect discrimination can be subtle. Employers must evaluate the context and history of interactions to determine whether a comment is discriminatory or simply a friendly exchange among colleagues.

iv.  Clear Complaint and Redress Mechanisms

Employers should implement a clear anti-discrimination policy that outlines reporting procedures and how complaints will be handled.

Additionally, regular audits are necessary to ensure these policies are effectively applied and positively impact the workplace.

Conclusion

Employers have a critical duty to protect staff from all forms of discrimination. This involves creating comprehensive policies that define and address various forms of discrimination. While the article outlines how indirect discrimination can occur and suggests safeguards, it emphasises the need for broader awareness among both employers and employees to fully understand its impact in everyday workplace interaction.