Work EDI policy - help!

[mrsnibblesisahero]

Hi everyone, bit of a slow burn as I'm a bit busy and may not be able to answer straight away to every message, but looking for support. I'm a senior manager, can't really afford to expose myself too much or be too direct, so looking for 'tactful' ways to go back on this.

.....a monitoring system will be introduced to measure the effectiveness of the policy and arrangements. This will involve the routine collection and analysis of information on team members by
gender, marital status, ethnic origin, sexual orientation, and religion/beliefs. Information regarding the number of team members who declare themselves as disabled will also be maintained.

• why gender not sex???

and this:
.... receives less favourable facilities or treatment (either directly or indirectly) in recruitment or employment on grounds of age, disability, gender/gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion or belief, sex, or sexual
orientation. These are the protected characteristics as defined in the Equality Act 2010.

• obviously shouldn't have the 'gender/'

and this:
Gender
Women and men are fully and properly represented and rewarded for their contribution at all
levels of the organisation through:
• challenging gender stereotypes
• supporting employees in balancing their life at work and at home
• supporting employees who become pregnant and taking active steps to facilitate their return to work after maternity leave

• why gender not sex?

Thing is - I did already go back once and got the response that gender/sex is interchangeable in law and HR..... I know the former isn't true of course but not sure what to do now in a positive way without marking my card.

Also - thinking - should I fight or should I just let go? I mean really in my industry no worries re toilets or anything. Confident that I can manage any situation by being respectful etc. But language matters, and this pains me, it feels wrong. Any advice that makes it clear am not out to cause trouble and am not a horrific bigot would be amazing.

The terms considered interchangeable are 'gender' in place of 'sex'.

The correct characteristics are 'gender reassignment' and 'sex'. They cannot legally be lumped together as they are different and separate in law.

They know this because they have not tried to use 'gender orientation' which would be nonsensical.

@Wildgarlicpesto

So come on then, what is the legal claim? You are insisting it's a risk and OP is going to put the risk on the register and yet you have just waffled around the actual impact with words like "full monitoring". Which means what? If a company does not send out an equality monitoring questionnaire asking staff if they are pregnant is that indirect discrimination? Can a pregnant employee make a claim if no equality monitoring surveys are sent?

Your comment about companies full of straight white men is just pathetic.

I explained the risk in my first post, and then again the last time you asked, but sure, I can go one more time. The potential claim is for indirect discrimination on the basis of sex. This means that there is a policy (so in this case, the policy of not collecting sex data as part of an equalities monitoring form - you can drone on all you want about payroll data, but as I've explained that doesn't act as a direct substitute for anonymous data), that puts a person with a protected characteristic (in this scenario, a woman) at a disadvantage when compared to someone who doesn't have that protected characteristic (a man). Equalities monitoring is done for the benefit of marginalised groups, such as women. They are at a disadvantage if it is not done.

Your comment about companies full of straight white men is just pathetic.

For someone posting on a Feminism board, your attitude to equality is just bizarre.

that puts a person with a protected characteristic (in this scenario, a woman) at a disadvantage when compared to someone who doesn't have that protected characteristic (a man).

Eh? Both sexes have a sex(!) and are covered by the protected characteristic.

Explain what the actual disadvantage an individual has experienced by not being asked their sex in a voluntary anonymous survey?

So there are different views on the monitoring, that's fine. I can leave that. But can I ask, do you think any lawyer (assuming not Jolyon) is going to concede on the 'not interchangeable' point if asked? I suspect they haven't asked a lawyer, but HR consultant who has confidently asserted...

Explain what the actual disadvantage an individual has experienced by not being asked their sex in a voluntary anonymous survey?

OK but this time would you mind reading what I am writing instead of just demanding that I say it again? If a company is collecting anonymous employee feedback on, say, a WFH policy, then they will generally include diversity monitoring questions so they can see the impact that the policy has on people with different characteristics, and take action to rectify any part of the policy that is having a disproportionate affect on any protected group. If the company has a policy that they do not do diversity monitoring for one particular characteristic, then any disproportionate effect on that group will not be picked up on and the problem can't be rectified. The group is therefore at a disadvantage.

Eh? Both sexes have a sex(!) and are covered by the protected characteristic.

You clearly have a low level of background knowledge about discrimination law. Afraid I don't have the inclination to be your teacher, but here's something to get you started: www.landmarkchambers.co.uk/wp-content/uploads/2020/07/DL-Indirect-Discrimination-An-introduction-talk.pdf

I'm not going to respond to any more posts.

OP, best of luck with challenging this policy.

Thank you @Bisquette. Moving on from that - do you have any other thoughts on the wider points - I'm interested in your take.

Of course, that makes perfect sense. The company will have absolutely no idea what men think versus what women think if the word gender is used on a WAF questionnaire. They will not have a clue. Despite us using the word for decades we are all baffled. And discriminating against women automatically.

Rubbish.

There is absolutely no mention of monitoring in that attachment you have sent.

It does include actual examples of discrimination, something you have been completely unable to articulate. You seem to be googling anything you can find.

You have only managed to come up with the completely circular claim that the disadvantage of not including the word sex is the exclusion of the word sex itself as if that's an intrinsic disadvantage. You claim this is sex discrimination against women, despite monitoring requests being circulated equally to everyone in an organisation and therefore the words sex or gender being used for every one, equally.

Carry on though, I'm sure OP will be able to explain that the company won't actually know what men's survey responses are if they use the word gender. No one will know. It will remain a total mystery.

I feel as though this has been derailed a bit. I'm just keen to try and articulate the wider points, I am looking for help wording around those. I think the whole thing is hopeless actually to be honest with you. Looking at sexuality, they say people will be treated fairly by 'respecting different lifestyles', which makes me think, different from what??? the norm? that just seems really off to me.

Apologies, I see that outlandish, discrimination claim followed by an HR slagging off by Google experts all the time. No one has yet been able to actually tell me what the actual detriment is.

Here's some useful information on some of the areas you mentioned. Social mobility is getting a lot of focus in HE at the moment.
www.advance-he.ac.uk/guidance/equality-diversity-and-inclusion/using-data-and-evidence/monitoring-questions

No doubt there will be a kick off about the mention of identity!

@mrsnibblesisahero

Thank you *@Bisquette*. Moving on from that - do you have any other thoughts on the wider points - I'm interested in your take.

Sex and gender aren't interchangeable, but gender is (frustratingly) sometimes used a widely accepted synonym for sex. When you decide what battles to fight I think it's sensible to draw a distinction between the situations where people are using "gender" to mean "sex", but it's clear from the context that they actually mean "sex" and other than being a bit annoying it doesn't change much, and situations where they say "gender" but it's not clear if they mean gender or if they actually mean sex, and it makes a substantive difference.

The list of protected characteristics shouldn't include gender, but as long as sex is in there as well I'd let that go (if it was just gender on the list, it wouldn't be clear whether they were referring to sex or not, and that wouldn't be OK). People play fast and loose with this list - I've just been sent a policy that says one protected characteristic is "Pregnancy and Maternity (including Paternity") .

The paragraph that is headed "Gender" - I'd probably let this go as an example of the "annoying but doesn't change too much" category.

I think the bit that is worth challenging is the fact that they are monitoring data on "gender". Do they mean gender, or do they mean sex? If they aren't clear then they are going to get bad results, because half the team might answer as though it means "sex" and the other half might not. And if they do in fact mean "gender" and not "sex", why have they decided that they will not include sex as part of this exercise, when that is one of the most significant axis of oppression? The advice from Wildseas is great - objections should be framed in a positive way - so the aim should not be to get gender removed, but to get gender clarified and sex added too.

Agree that educational background is a really important EDI area that often gets overlooked. I've also seen policies that ask for the level of employment of the highest paid parent when the employee was 14.

Sex and gender are NOT interchangeable. I fought my regulator for a year over this. They finally took legal advice and the questions now are male, female or prefer not to say then separate question about gender identity. If they won't monitor sex how will they defend a sex discrimination claim?

If they won't monitor sex how will they defend a sex discrimination claim?

On the actual facts of the case.

We don't go to court and say here is a chart showing the voluntary anonymous data completed by 70 percent of employees showing half are men and half are women, that's our defence! What use is that?

People can put whatever they want in the sex category, they can put their identity in if they want. Which is exactly what they will have done in the census.

This myth will run and run!

@mrsnibblesisahero

I feel as though this has been derailed a bit. I'm just keen to try and articulate the wider points, I am looking for help wording around those. I think the whole thing is hopeless actually to be honest with you. Looking at sexuality, they say people will be treated fairly by 'respecting different lifestyles', which makes me think, different from what??? the norm? that just seems really off to me.

What if you framed it all a bit differently?

Hi HR Bod,

Thanks ever so much for sharing these proposals. I'm really keen to support this initiative as equality and diversity is really important to me. One thing I noticed was that we reference "different lifestyles" in relation to people's sexuality: I wondered if it would be more inclusive to word it as "people's chosen lifestyles".

I also wondered if we could consider including work on expanding our appeal and ability to employ people with non standard educational qualifications, as a way of ensuring opportunities are available to anyone with the appropriate skillset, where that can be achieved without specific qualifications. If we need to have a think about how assessments for applicants would work with this in mind I'd be happy to help.

Finally, I noted that several of the proposals reference the protected characteristics in the equality act with some variation compared to the text of the act. As various organisations have recently received challenges over this, I think it would minimise any risk to the company if we ensure our wording matches that in the legislation exactly.

This would mean the following sections had minor changes:

Pg X Para 4 becomes "corrected paragraph here" etc etc.

Please do let me know if there's anything else I can do to support this iniative.

All the best,

Mrs Nibbles"

Then you've a) made them feel you're on sides, b) made the other constructive recommendations in a positive way c) made it about the quality of policy not gender Vs sex and d) given them something they can literally copy and paste back in thereby facilitating it being the easy option to change it.

Have been thinking exactly that @Etymology23, so I'm glad you say that. But, is it just me, 'lifestyles'?? Why is any type of sexuality a lifestyle? But this does have a vague 1980s feel about it... I think it may just be me, but I'm slightly raging about this.

@mrsnibblesisahero

So there are different views on the monitoring, that's fine. I can leave that. But can I ask, do you think any lawyer (assuming not Jolyon) is going to concede on the 'not interchangeable' point if asked? I suspect they haven't asked a lawyer, but HR consultant who has confidently asserted...

I don't think many lawyers will concede that currently. They all have the woke awards and have been Stonewalled!

situations where they say "gender" but it's not clear if they mean gender or if they actually mean sex, and it makes a substantive difference.

Substantive difference? So let's consider how substantive this difference is in the OPs company.

A widely circulated guesstimate of the number of trans people is half to one percent. So that means an actual overlap of 99 to 99.5 percent accuracy between sex and gender identity.
The OPs company has 20 people.

So if OPs company is representative of the UK for between 19.8 and 19.9 people the answer to sex or gender or identity will be the same. In what way is that a substantive difference?

In a company of a 1,000 people the overlap between sex, gender and gender identity if representative of the country is between 990 and 995 people.

Is this a substantive difference?

That sexnotgender document is written by Alan Henness!

Who is neither a lawyer nor an HR professional! But he is the go to oracle in this, is he?

He says this about equality monitoring:

But this contingent on the quality of the information an organisation gathers. If the information collected is wrong, misleading or refers to characteristics that are not on the list protected characteristics, the organisation risks losing a case brought to an employment tribunal.

What absolute bollocks. How is voluntary anonymous data "wrong"? It's what people have voluntarily and anonymously provided.

How many sex discrimination employment tribunals have you been to as an employer Alan?

No-one is going to lose a tribunal over completely optional "monitoring"! This is silly.

What he has quoted earlier says that if employers have monitoring data and can point to improvements they CAN use this as evidence.

He has turned this on its head and said that if you don't then you risk losing.

This is very misleading Alan, and a bit pointless frankly.
There's a 99 to 99.5 percent overlap between identity and sex in the UK for monitoring purposes.

Employers have male and female data for everyone, and despite Alan telling you that employers will risk losing a sex discrimination case EVERY EMPLOYER HAS EVERY EMPLOYEES SEX RECORDED!

And you know something else Alan? If their ID has changed that's the sex a tribunal will consider.