Discrimination at work: What every employer should know

Most people associate discrimination with race and ethnicity, and usually on the broader socio-economic, political, and gender space.

Invariably, the word assumes a social–economic and political perspective commonly associated with political and rights activists.

Discrimination is the treatment of a person or group of persons differently, that is prejudicial to them, in a manner that also excludes them from, or denies them equal opportunities or fair treatment.

The discrimination could be based on race, ethnicity, gender, age, pregnancy, marital status, disability, religion, or political association.

In the workplace, discrimination may manifest itself when an employee feels they have been treated differently from the rest for reasons that have no relevance to their abilities to perform the work for which they were hired to do, but for reasons touching on their gender, race, religion, physical disability or beliefs, and political affiliation.

Workplace discrimination may occur during recruitment, where a person may be denied employment for reasons unrelated to the qualifications or requirements of the job, or after employment.

The most notable types of discrimination relate to gender, maternity and paternity, promotions, job grades, pay, assignments of unpopular, difficult tasks, a job an employee was not qualified or hired to perform, or puts them at a disadvantage from others or denial of job, training and development, retirement benefits and many others. Discrimination may also occur during disciplinary and termination of the employment process.

Recently there has been an upsurge of court cases touching on discrimination in the workplace, probably due to better awareness among employees through readily available information in the digital space.

It is therefore important for employers to know which workplace actions constitute discrimination and the laws that cover discrimination to avoid costly legal cases.

Article 27 (4) of the Constitution of Kenya states that no person shall be discriminated against based on gender, sex, colour, religion, conscience, marital status, pregnancy, health status, ethnic or social origin, colour, age, disability, culture, dress language or birth.

These rights are anchored on the bill of Rights, and women's rights are also anchored on the Convention Against All Forms of Discrimination Against Women which extends rights to social political, cultural, and civil rights.

The Employment Act 2007 also prohibits discrimination, echoes the Constitution of Kenya's provisions against discrimination, and places the burden on employers to ensure there are no discriminatory policies, practices, and actions in the way they interact with their employees.

An employer must therefore formulate policies that eliminate discrimination, eg it’s an equal opportunity employer, and entrench provisions in its human resources policies and procedures as well as operating procedures – because stakeholders are also protected by the Constitution.

Gender discrimination may be witnessed in preference for male employees during recruitment, promotions, salary discrepancy, job assignments, and denial of opportunities to train or advance careers.

Rejecting to hire a qualified best candidate after an interview, or terminate a contract because of health, for example, HIV/Aids which is forbidden by HIV and Aids Prevention and Control Act.

The Persons with Disability Act, forbids discrimination against disabled persons, by failing to design workspaces and access to, stigmatisation, use of demeaning language, and exclusion from enjoying benefits, equitable pay, and career opportunities.

Employers should respect the principle of non-discrimination by making skill, qualifications, and experience the foundation of their recruitment, placement and training.

Mr Muya is an HR Strategist, a certified coach and career strategist:[email protected]