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Dealing with discrimination

Dealing with discrimination

How to address discrimination and be a supportive ally. Lawyers are responsible for upholding the rule of law, an integral component of which is equality before the law. In light of this, it is somewhat ironic that the composition of the legal profession itself does not reflect that of broader society, particularly at senior levels. Even though women now comprise more than 50 per cent of the Australian population and solicitors, they make up only 27.4 per cent of partners at medium and large law firms.1 Similarly, only 3.6 per cent of partners in medium and large law firms, 1.6 per cent of barristers and 0.8 per cent of the judiciary in Australia had Asian backgrounds in 2016,2 compared to approximately 12.4 per cent of the Australian population. More generally, the Australian Human Rights Commission received 2046 complaints in 2017-2018, 92 per cent of which related to discrimination on the basis of ability, gender, sexuality, race or age.3 Both individuals and employers are legally obliged to avoid discrimination, and employers have a positive duty to take reasonable and proportionate measures to eliminate discrimination.4 Pragmatically, discrimination complaints are expensive and time-consuming,5 and can cause permanent reputational harm. On a more positive note, employers are gradually becoming aware of the benefits associated with diversity and inclusion. A more diverse workforce is a more innovative and higher-performing workforce, incorporating a broader range of perspectives, ideas and skills. Further, employees who feel like they belong are happier and, therefore, more productive and loyal. Hence, employers are attempting to recruit, retain and promote a greater diversity of talent. However, structural change will not occur overnight. So what can individuals do when faced with discrimination and how can people be effective allies? Addressing discrimination Discrimination can be both direct, being on the basis of a protected attribute, or indirect, where an unreasonable requirement is imposed that has or is likely to have the effect of disadvantaging persons with a protected attribute.6 An example of indirect discrimination could be where the only way to enter a public building is by a set of stairs, because people with disabilities who use wheelchairs would be unable to enter the building. Both direct and indirect discrimination can occur deliberately or unintentionally. In relation to deliberate discrimination, such as sexist or racist slurs, a line in the sand needs to be drawn to clearly indicate that such conduct will not be tolerated. More often than not, though, discrimination occurs unintentionally due to the existence of unconscious biases; for instance, simply assuming someone’s partner is the opposite gender. It should be emphasised that perpetrators of discrimination are not necessarily monsters. That said, perpetrators ordinarily being "good people" does not mean a blind eye should be turned to their conduct, which still needs to be called out and corrected. Where perpetrators are not discriminating consciously, the objective should generally be to educate, rather than blame and shame them. This is more likely to lead to behavioural change, whereas criticism may antagonise perpetrators and reinforce existing biases. Obviously, this clear-cut delineation between malicious and innocuous discrimination is an oversimplification. A spectrum of conduct exists and responses should be proportionate, ranging from humorously pointing out the inappropriate or insensitive faux pas to lodging a formal complaint. Practically speaking, confronting perpetrators of discrimination may not be feasible where it could strain working relationships with colleagues, particularly for a junior where the perpetrator is in a position of power; this may require recourse to formal complaint mechanisms or support from other senior staff. People from diverse groups may also be reluctant to complain about being discriminated against for fear of being seen as playing the "victim card". Additionally, people from diverse groups cannot always be expected to respond civilly; in fact, it is probably unhealthy to keep negative emotions bottled up indefinitely. Taking the above difficulties into account, the individuals discriminated against must decide what the best course of action to adopt is for themselves. While perpetrators of discrimination may not do so intentionally, it is important to recognise the impact of their actions. Discrimination can be a traumatic experience, since it relates to fundamental aspects of people’s identities and affects their sense of self-worth, often making them feel inferior or ostracised. Available support services should be identified7 and seeking help should not be viewed as a sign of weakness. In dealing with discrimination, people from diverse groups should try not to take it personally and remember that, putting a spin on the classic break-up line, “it’s not you, it’s them”.

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