There is a point I feel particularly important towards the end of this article - exceptions to the rules on discrimination, harassment and victimisation.
3. Discrimination, Harassment and Victimisation
The bill lays out definitions of direct and indirect discrimination, harassment and victimisation and where that conduct is prohibited. These definitions are already fairly well established in discrimination law.
Discrimination is the direct (won't promote women) or indirect (running selection events only on a saturday would indirectly discriminate against Jewish people) less favourable treatment of someone due to a "protected characteristic" (remember them?).
Harassment is the unwanted conduct (which could be sexual) which has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.
Victimisation is mistreating a person due to taking action or supporting action against discrimination, harassment or victimisation.
These prohibited conducts are prohibited across a range of activities:
- the supply of services (including goods and facilities)
- the provision of public functions
- the disposal, management and occupation of premises
- employment (including hiring, promotions, training etc.) and specific types of employment
- occupational pensions
- clubs and associations
There are two things which particularly interest me here - how broadly the "protected characteristics" can be applied and what exceptions there are.
On the first point, the wording used in the bill is "because of a protected characteristic". The explanatory notes explain that this should be interpreted broadly such that it includes association with people with said characteristic and wrongly being thought to have the protected characteristic. This broad reading is a good thing and hopefully offers some work arounds to the issues I mentioned around the "gender reassignment" protected characteristic.
The other interesting area is the exceptions. Sections 27, 32 and 33 define prohibited conduct in relation to "performing public functions or supplying a service", "disposal of property" and "managing property". Each of them notes that harassment is not prohibited conduct for the protected characteristics of sexual orientation or religion or belief (Sections 27(8), 32(4) and 33(4) respectively, Explanatory Notes 115, 128, 130).
Pay attention now, this bit is important - harassing someone whilst carrying out a public duty is not a problem if it's against queers. Harassing someone when renting, selling or managing a property is not a problem if it's against muslims.
The reason? Well, according to the explanatory notes it's because "we don't have that protection at the moment". I think this is a disingenuous argument. This bill is about unifying, harmonising and strengthening our anti-discrimination laws. It is not about copying our existing laws with no thought. This exclusion has had to be explicitly written in - this demands a better reason than "well, you've not got it now".
There are strong arguments that some forms of discrimination can be justifiable. I can see no reason at all that harassment can ever be justified or should ever be accepted. There is no business case to be made for harassing or bullying a person.
This is something I will be asking my MP about in the next couple of days, and I urge others to do likewise.
That's it for now though. Next up could be an overview of employment and/or education provisions. I'll also be looking at enforcement.
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