EMPLOYMENT (PREVENTION OF DISCRIMINATION) ACT, 2020-26 - An Explanation of Section 14

 

  

Section 14 of the Employment (PREVENTION OF DISCRIMINATION) ACT, 2020-26 addresses the question of “Religious appearance or dress” at work. It states verbatim that Sections 4 and 5 of the Act do not render unlawful discrimination in the case of religious appearance or dress where the discrimination arises as a consequence of a person refusing to reveal his face in circumstances in which the person has been requested to do so for the purpose of verifying the identity of the person, and the request was reasonable in the circumstances; by reason of the person's appearance or dress, the person is not, or would not be, able to perform adequately, and without endangering himself or other persons, the work genuinely and reasonably required for the employment or position in question; or respond adequately to situations of emergency that may reasonably be anticipated in connection with the employment or position in question; or the discrimination is for the purposes of enforcing a standard of appearance or dress reasonably required for the employment.

Section 14: An Interpretation 

In simpler terms, Section 14 is saying that there are situations where it is not considered discrimination if someone is treated differently based on their religious appearance or dress. Specifically:

1. If a person refuses to show their face when asked to verify their identity, and the request to reveal their face is reasonable in that situation, it is not discrimination.

2. If someone's appearance or dress prevents them from doing the required tasks for a job without putting themselves or others at risk, or if they cannot respond properly to expected emergencies related to the job, it is not discrimination to consider these factors in employment decisions.

3. If a certain standard of appearance or dress is genuinely necessary for a particular job, then treating someone differently based on that standard is not considered discrimination.

Examples 

Let's break this down further with examples for each of the situations mentioned immediately above:

1. Refusing to Reveal Face for Identity Verification:

• Example: Imagine a person, for religious reasons, wears a face-covering veil. If, during a job interview or at a workplace where identity verification is crucial (e.g., airport security), they are asked to briefly reveal their face for identification purposes, and they refuse without any valid reason, the employer's request to reveal the face can be considered reasonable. In such a case, any resulting different treatment would not be considered discriminatory.

2. Inability to Perform Job Tasks Safely:

• Example: Suppose a job requires the use of safety equipment, such as a helmet with a secure strap. If an individual's religious headgear doesn't allow them to wear the safety helmet securely, and this poses a safety risk in a construction job, the employer may need to make a decision based on safety concerns. In this situation, considering the person's appearance in relation to the job's safety requirements would not be discriminatory. A good example of this in Barbados is the impossibility of a Rastafarian with large dread locks to wear a safety helmet on his head. It just cannot fit. 

3. Enforcing a Standard of Appearance for the Job:

• Example: In certain professions where a specific dress code is crucial for professional reasons, such as a military or law enforcement setting, adherence to a standard uniform is often required. If an individual's religious attire doesn't align with the uniform standards and adjusting the uniform is not feasible without compromising the professional requirements of the job, the employer may enforce the standard without it being considered discriminatory.

It's important to note that each case is unique, and the determination of what is "reasonable" or "genuine and reasonable" may vary based on the specific circumstances and local laws.

Section 4: Prevention of discrimination in relation to job creation and recruitment

Section 4 of the Act under discussion states verbatim that an employer shall not discriminate against a person in the creation of jobs; in the making of arrangements for determining who should be offered employment; in the advertisement of employment; in determining who should be offered employment; or in the terms or conditions on which employment is offered. (b) (c) (4) (a) (b) 4.(1) (a) (b) (c) (d) (e) EMPLOYMENT (PREVENTION OF DISCRIMINATION) ACT, 2020-26 11 An employment agency shall not discriminate against a person by refusing to provide the person with its services; in the terms or conditions on which it offers to provide the person with its services; in the manner in which it provides the person with its services; or in any other manner in which it facilitates the employment of the person. Subsection (2) does not require an employment agency to ensure that an employer complies with this Act.

Section 4: An interpretation with Examples

• Creation of Jobs:

Example: An employer is looking to hire a manager for a new department. They cannot discriminate against a qualified candidate based on factors such as race, gender, religion, or any other protected characteristic when creating this new job position.

• Arrangements for Determining Employment:

Example: When determining who should be offered employment, an employer cannot unfairly favor or disfavor candidates based on protected characteristics. For instance, they cannot exclude someone from consideration solely because of their disability.

• Advertisement of Employment:

Example: In job advertisements, employers must avoid discriminatory language or requirements that may unfairly exclude certain groups. For instance, an ad that explicitly states a preference for young candidates could be considered discriminatory.

• Determining Who Should be Offered Employment:

Example: If two candidates are equally qualified for a position, an employer cannot make the decision based on discriminatory criteria, such as age or marital status. The selection process should be fair and merit-based.

• Terms or Conditions of Employment:

Example: An employer must not discriminate in the terms or conditions offered to employees. For instance, offering different salary packages based on gender would be a form of discrimination and is prohibited.

• Employment Agencies:

Example: Employment agencies, when providing services, must not discriminate. They cannot refuse services, impose discriminatory terms, or facilitate employment in a manner that goes against the principles of the Act. For instance, an agency cannot refuse to provide services to a person based on their religious beliefs.

It's important to note that Subsection (2) clarifies that employment agencies are not required to ensure that an employer complies with the Act. This means the responsibility primarily lies with the employer to adhere to anti-discrimination practices in employment.

Section 5: Prevention of discrimination in employment

Section 5 of the Act states that An employer shall not discriminate against an employee in the terms or conditions of employment that the employer affords the employee; in the provision of facilities or services related to or connected with employment; by the denial or restriction of access to opportunities for promotion, transfer or training or to any other benefits associated with employment; by disciplinary action or dismissal; or by subjection to any other detriment.

Section 5: An interpretation with Examples

let's break down the provisions outlined in Section 5:

• Discrimination in Terms or Conditions of Employment:

Example: If an employer provides different working conditions or terms of employment to employees based on their gender, such as offering certain benefits or work hours only to male employees, it would be considered discriminatory.

• Discrimination in Provision of Facilities or Services:

Example: If certain employees are denied access to workplace facilities or services, like training opportunities, based on their race or religion, it would be considered discriminatory. All employees should have equal access to facilities and services connected with their employment.

• Denial or Restriction of Access to Opportunities:

Example: If an employer denies a promotion or training opportunity to an employee solely because of their disability, it would be discriminatory. Employees should have equal access to opportunities for promotion, transfer, or training based on their qualifications and performance.

• Discrimination by Disciplinary Action or Dismissal:

Example: If an employee is subjected to disciplinary action or dismissal solely due to their religious beliefs, and not based on their job performance or behavior, it would be considered discriminatory. Employment decisions should be based on merit and conduct, not on protected characteristics.

• Subjection to Any Other Detriment:

Example: If an employee faces negative consequences, such as exclusion from team activities, reduced responsibilities, or other detriments, based on their sexual orientation, it would be considered discriminatory. Employees should not face adverse actions due to protected characteristics.

In summary, these provisions emphasize that employers must treat employees fairly and equally, without discrimination, in various aspects of employment, including terms and conditions, access to facilities and services, opportunities for advancement, disciplinary actions, and any other related detriments. Discrimination based on factors such as race, gender, religion, or other protected characteristics is prohibited under these provisions.