Discrimination by association

As an employer, you have a responsibility to ensure the fair and equal treatment of every single one of your employees. This means complying with the Equality Act 2010 to ensure that your staff are not discriminated against. But did you know that even employees who do not hold one of the protected characteristics can be discriminated against? This is known as discrimination by association, and it’s vital that you are aware of what this means and how to avoid it.

The best way to ensure that your employees are treated fairly in the workplace is to make sure that you are following best practices when it comes to HR, and that you have an excellent understanding of employment law. By doing this, you can ensure that your policies and procedures protect both your employees and the business from issues related to discrimination in the workplace.

In this article, we’ll explain exactly what is meant by discrimination by association, as well as providing examples of how associative discrimination could occur. We’ll also explore some of the practical steps that businesses can take to avoid discrimination by association in the workplace.

Let’s Talk About Discrimination

Discrimination involves a person being treated unfairly or unreasonably. This becomes unlawful when the discrimination is a result of the person’s personal characteristics. This could include age, race, disability or sex.

Discrimination can occur in any aspect of life – it isn’t just limited to the workplace. However, discrimination is a hot topic in business, with almost every business owner aware of the issues that can arise if discrimination occurs in the workplace.

Whilst the vast majority of employers will be aware of direct discrimination, many are unaware that employees can also be discriminated against based on the protected characteristics of their associates. This is known as discrimination by association or associative discrimination.

But how does discrimination by association occur and how can you avoid it in your workplace? Read on to find out.

Looking for advice on discrimination by association? Our expert team is here to help. Contact us today for advice on HR and employment law

Types Of Discrimination

Before we discuss discrimination by association, we need to fully understand the wider principle of discrimination.

There are four distinct types of discrimination that you need to be aware of. These are direct, indirect, harassment and victimisation. Each of these types of discrimination are covered by the Equality Act 2010.

Let’s explore each of the four types of discrimination in more depth.

Direct Discrimination

Direct discrimination means treating a person differently as a result of a protected characteristic. For example, if an employee is overlooked for promotion due to their age. Although discriminatory acts are usually carried out deliberately, it does not have to be intentional to be direct discrimination. This means that direct discrimination can sometimes happen unintentionally.

This type of discrimination sounds simple at first glance, but there is slightly more to it, as there are three different types of direct discrimination.

The types of direct discrimination are:

  • Ordinary direct discrimination – When a person is treated less favourably as a result of a protected characteristic that they possess.
  • Direct discrimination by association – When a person is treated less favourably as a result of being associated with a person who holds a protected characteristic.
  • Direct discrimination by perception – When a person is treated less favourably as a result of being perceived to hold a protected characteristic, even if they do not.

Indirect Discrimination

Unlike direct discrimination, indirect discrimination is more subtle and is often unintended. This type of discrimination usually occurs when a policy is put in place that disadvantages a certain group of people. This group of people will share a protected characteristic that means that they are particularly disadvantaged by the policy.

For example, if an employer introduced a uniform policy that stated that all female employees must wear a skirt, this could indirectly discriminate against employees who hold certain religious beliefs as they may be unable to comply with the policy.

Harassment

Harassment involves unwanted or offensive behaviour that is related to a person’s protected characteristics. This behaviour violates a person’s dignity, creating a hostile, intimidating, humiliating, offensive or degrading environment for them.

Examples of harassment include gossip, inappropriate or intrusive questions or comments, nicknames and bullying. Perpetrators may claim that the behaviour was “just banter” or was not meant to cause offence, but this is not a defence. In fact, the experience of the victim is far more important than the opinion of the harasser when it comes to harassment.

Victimisation

Victimisation involves treating a person unfairly as a result of the victim:

  • Making an allegation of discrimination
  • Being a witness of discrimination
  • Providing evidence to support a claim of discrimination
  • Raising a grievance involving discrimination or equality

If the person suffers a detriment as a result of being treated unfairly, it may be victimisation. A detriment could include a disadvantage, loss, harm or damage. For example, those affected by victimisation may be left out, ignored, denied promotion or training, or face redundancy.

Looking for advice on discrimination by association? Our expert team is here to help. Contact us today for advice on HR and employment law

Types of discrimination

What Does The Equality Act Say?

The current Equality Act came into force in October 2010. It provides a legal framework that protects the rights of individuals, as well as promoting a fair and equal society that provides equal opportunities for all.  

The Equality Act 2010 sets out nine protected characteristics, against which it is unlawful to discriminate. These include sex, race, age and disability. The act also sets out the different types of discrimination, some of which apply to each of the protected characteristics, whilst others apply to specific protected characteristics.

Individuals with protected characteristics are protected from discrimination in the following situations:

  • Whilst at work
  • In education
  • As a consumer
  • When utilising public services
  • When renting or purchasing property
  • As a member or guest of a private club or association

Protected Characteristics

Protected characteristics are traits that a person might hold, against which it is unlawful to discriminate. The Equality Act 2010 sets out nine protected characteristics. These are protected by law, meaning that it is against the law to discriminate against anyone because of their protected characteristics.

The nine protected characteristics are as follows:

  1. Age
  2. Sex
  3. Gender reassignment
  4. Sexual orientation
  5. Race
  6. Disability
  7. Religion or belief
  8. Pregnancy and maternity
  9. Marriage and civil partnership

What Is Discrimination By Association?

However, discrimination doesn’t always happen against a person with a protected characteristic. It is also possible to be discriminated against as a result of a person’s associations with a person with protected characteristics.

If a person is treated unfairly due to someone else’s protected characteristics, this could be associative discrimination. The person with the protected characteristic could be a friend, child, partner, parent or anyone that they associate themselves with.

For example, if a company decide not to hire a parent who has a disabled child, this would be discrimination by association. The parent could make a claim at a tribunal if they believed that the disability of their child was the only reason that they weren’t selected for employment.

Looking for advice on discrimination by association? Our expert team is here to help. Contact us today for advice on HR and employment law

Associative Discrimination Examples

Discrimination by association can happen in a wide range of circumstances. It’s important to note that whilst seven of the protected characteristics are covered under associative discrimination, the type of discrimination is not applicable for the characteristics of pregnancy and maternity or marriage and civil partnership.

Here are just a few examples of discrimination by association.

Disability Discrimination By Association

A single parent caring for a disabled child needs to take time off work to take his son to medical appointments. The employer begins to treat the employee less favourably, which eventually leads to the employee being dismissed.

This is an example of disability discrimination by association, as a result of the parent’s association with the disabled child.

Sexual Orientation Discrimination By Association

A heterosexual employee mentions to their manager that they attended a gay pride event with their friends at the weekend. The employee is then treated unfavourably because of their association with the LGBTQ+ community.

This is an example of discrimination of sexual orientation by association, as the employee is being treated less favourably as a result of their association with friends from the LGBTQ+ community, despite being heterosexual themselves.

Racial Discrimination By Association

An employee is due to receive a promotion. That weekend, she sees her manager whilst at the zoo. She introduces her manager to her partner, who is a person of colour. After the encounter, the manager begins to treat the employee differently, withdrawing the offer of promotion.

This is an example of racial discrimination by association, as the employee is being treated less favourably as a result of their partner being a person of colour.

Associative discrimination

Harassment By Association

It is also possible for harassment to be by association. Whilst it is commonly passed off as ‘banter’, harassment can have a severe impact on victims, who are left feeling intimidated, humiliated and degraded.

Although this ‘banter’ may not be related directly to protected characteristics held by the worker, they could still be hurt as a result of their association with a friend or family member who does hold the protected characteristics.

For example, the mother of a child with autism could be offended by hurtful remarks made about the condition by colleagues. This could fall under harassment by association, as a result of her association with her child who holds the protected characteristic.

Practical Steps To Avoid Associative Discrimination In The Workplace

Whilst most people have an understanding of discrimination, many are unaware of discrimination by association. Many workers choose to keep their personal life separate from their work life, so a comment that is meant as ‘banter’ could cause offence to an employee who is associated with someone who holds a protected characteristic.

Luckily, there are practical steps that you can take to help to avoid associative discrimination in the workplace.

Firstly, you should hold regular staff training sessions on diversity and equality. This training should be for all employees, rather than just managers, and it should specifically include discrimination by association. The vast majority of people will seek to avoid engaging in associative discrimination once they become aware of the principle, as well as the impact that it can have.

It’s also important to ensure that your anti-discrimination policy is up to date and includes information on discrimination by association. All employees should be aware of this policy and should be asked to refamiliarise themselves after every update.

Looking for advice on discrimination by association? Our expert team is here to help. Contact us today for advice on HR and employment law

Related Questions

What Is Meant By Equality?

Equality means ensuring that each and every individual is provided with an equal opportunity. This could be in education, at work or in everyday life. Whatever the background of a person, wherever they were born, whatever their disabilities and whatever they believe, they should be given the same opportunities in life as others.

What Is Positive Discrimination In The Workplace?

Sometimes businesses may choose to employ positive discrimination tactics in an attempt to reduce inequality. This means favouring a person as a result of their protected characteristics. For example, a business may choose to offer those from a minority background an automatic interview if they apply for a job. The goal of positive discrimination is usually to increase the number of employees with a minority background in the business.  

Should You Be Worried About Associative Discrimination?

Discrimination by association is something that every business owner should be aware of. Unfortunately, many people are unaware that associative discrimination exists, meaning that it has the potential to pose a threat to many businesses.

By being aware of associative discrimination and taking positive steps to avoid it in the workplace, you can protect your business from potential tribunal claims whilst enhancing employee satisfaction within your business.

If you need advice on creating an anti-discrimination policy or dealing with a claim for discrimination by association, we’re here to help. Contact us today for expert advice on HR and employment law.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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