New guidelines on how to avoid discriminatory advertising

The Equality and Human Rights Commission has published new guidelines to help companies steer clear of discrimination laws when recruiting new staff or advertising their services.

The guidelines point out that placing a discriminatory advert is unlawful under the Equality Act 2010 (‘the Act’).

The Act protects individuals from discrimination because of sex, race, disability, gender reassignment, pregnancy and maternity, marriage and civil partnership, religion and belief, sexual orientation and age – these are described as protected characteristics.

The Commission guidelines cover both direct and indirect discrimination. It defines direct discrimination as treating someone worse than another person because of a protected characteristic – for example, not appointing someone because they are black or gay.

Indirect discrimination may occur where an organisation applies a practice or rule which on the face of it treats everyone the same but in fact puts people with a particular protected characteristic at a disadvantage compared with others.

For example, an advert for a bank account that states applicants must have a permanent address could indirectly discriminate against a Syrian asylum seeker. This eligibility requirement would be unlawful unless it could be objectively justified. In order to be objectively justified there must be a legitimate aim for the practice or rule, which in turn must be a proportionate way of achieving that aim.

The guidelines focus a great deal on employment issues, giving examples of adverts that are discriminatory and those that could be objectively justified.

Where the advert is justifiable:

“An advert for firefighters states that applicants will have to take physical tests. While this requirement could rule out some disabled people this is not unlawful if the fire service can show it is objectively justifiable.

“The fire service’s justification for the test is to make sure candidates are fit enough to do the job. This is a legitimate aim and making candidates take physical tests is likely to be a proportionate way of achieving this aim.”

Where an advert is discriminatory:

“A building company advertises for Polish builders to work on their construction site on the basis that they believe that they will stay on the job longer. This belief, based on a racial stereotype, will not qualify as a justifiable occupational requirement and would be unlawful race discrimination.”

The guidelines, entitled Advertising: What equality law means for advertisers and publishers give several more examples and can be accessed here: http://www.equalityhumanrights.com/sites/default/files/publication_pdf/EHRC%20Advertising%20-%20Equality%20Law%2012.pdf

Please contact Jackie Cuneen if you would like advice about the issues raised in this article or any matter relating to discrimination law.