31st March, 2015
By Femi Bamisile
Introduction
The dominant existence of discriminatory practices, whether in the work place or the society at large, traceable from ancient times to modern era, is a highly vexed issue in socio-economic discourse as well as it is a subject in Labour Law. There is obviously the need to examine the concept of discrimination and its relationship with the concept of equality in exploring the subject matter of this write-up.
The term discrimination has been defined as the effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion or handicap (Bryan A. Garner (Ed.) Black’s Law Dictionary (2004) 8th Edition, P.500.). It has been described as differential treatment, especially a failure to treat all persons equally when no reasonable distinction can be found between those favoured and those not favoured.
The foregoing definitions clearly indicate elements of inequality and its attendant disadvantages and social or economic stigma. Discriminatory practices could include a decision to treat a black person or a woman differently from a white person or a man, regardless of the motivation. It would appear that discrimination is a highly prejudicial social practice which inevitably leads to inequality in the society. It has been argued that discrimination is wrong because it leads to inequality. It is wrong to discriminate against people because in so doing, we harm them, especially when people are unfairly or inappropriately rejected for employment. In condemning social and sexual discriminatory practices, an author, Wasserstrom, regarding such practices as malicious, asserts that “they were a grievous wrong and it was and is important that all morally concerned individuals work for their eradication from our social universe.” (Wasserstrom, R: ‘Racism, Sexism and Preferential Treatment: An approach to the Topics’(1977) 24 UCLA L Rev. 581, pp.617-18).
It is significant to stress that the issue of racial and gender discrimination i.e. differential treatment on the basis of race and sex, continues to feature in modern day work-places despite the numerous local and international legal instruments that have been promulgated to redress the pernicious menace. Another crucial aspect of the discourse is the question or issue of discrimination against the disabled and age-based discrimination. The underlying import of this discussion is that workers in the work places do not access equal job opportunities and equal remuneration for equal job. In support of this assertion, it will be reasonable to make reference to a definition of an equal opportunity employer. An author, Bryan A. Garner defines equal opportunity employer as an employer who agrees not to discriminate against any job applicant or employee on the basis of race, colour, religion, sex, natural origin, age or disability”.
An analysis of the discriminatory indices will reveal five classifications: These are discrimination based on:
(1) race, colour and natural origin – racial
(2) sex – gender
(3) religion – faith
(4) age
(5) disability and health status
Among the five classifications, those that are notorious in the work place are race, sex, disability, health status and more recently, age.
Although the issue of racial segregation in the work place dates back to the era before World Wars I & II, the disheartening effect thereof became more prominent in the post World War I & II era. On this argument, it has been posited that the use of the authority of law to restrain racial or religious discrimination in employment is not often recognized as one of the crop of war babies from World War II. As argued by an author, Malcolm Ross, “in 1941, during a period of increasing labour shortage because of the War, there remained an untapped labour reservoir of Negro unemployed who were kept out of expanding defence industries because of long established patterns of racial exclusion”. It has also been vehemently contended that the racial and religious discriminatory “patterns had been strengthened in the hard depression years of the early thirties when Negroes were squeezed out of their customary low grade menial jobs as porters, waiters and unskilled workers. In many instances, Negroes were also barred from unions. The living gates at many defence plants were closed to them”.
From the foregoing, it is obvious that Negroes did not enjoy equal employment opportunities nor equal wages for equal work with their white counter parts.
The American Government responded to that apparent socio-economic challenge when on June 25, 1941, it issued the historic Executive Order 8802 which aimed at forbidding racial or religious discrimination in employment by any company holding defence order in the United States. The Executive Order was to outlaw discrimination in the defence industries. Under the said Order, there was established the Fair Employment Practices Committee (FEPC). This was a federal order. The Ives – Quim Bill proposed by the Temporary Commission Against Discrimination in New York State became the first state law against discrimination in private employment and this was like the Federal Order, a war baby.
It has been recognized that the state of New York became a pioneer in the development of new machinery to ensure equality of employment opportunity for all and to help eliminate the gaps which existed between democratic ideals and actual practices in New York. The law provided that “the opportunity to obtain employment without discrimination because of race, creed, colour or national origin is hereby recognized and declared as a civil right”. The law equally made it an unlawful employment practice for a labour organisation to exclude or to expel from membership any individual because of race, creed, colour or national origin or to discriminate in any way against any member or against any employer or any individual employed by an employer.
…to be continued