Don’t be that employer

Legal Feminist tweeted a short thread starting like this the other day:  

It seems worth elaborating briefly in a blog, so here goes. 

The first point to make is that the allegation made by @MotherCecily is unverified: I don’t know who she is, or who her husband is, and I haven’t seen the email or the agenda. But it will serve anyway as an example of the kind of thing that an employer might do. 

It’s an extraordinarily bad idea. Any HR director tempted to organise training with this kind of content needs to catch up with the implications of the judgment of the Employment Appeal Tribunal in Forstater. Gender critical beliefs are capable of being protected under the Equality Act: that means that someone with gender critical beliefs is entitled not to suffer discrimination on grounds of those beliefs, or harassment related to them. That protection works in the same way as protection from discrimination on grounds of other protected characteristics: sex, race, disability etc. If you want to make this real – well, run the thought experiment, substituting in groups defined by other protected characteristics for “TERF” in “Be less TERF.”  It looks pretty bad, doesn’t it? 

The memo doesn’t seem to have circulated very far yet. Anecdotally, it seems that large numbers of gender critical employees are suffering various kinds of discrimination and harassment at work because of these beliefs, or even being disciplined by regulators and professional associations for expressing them. A rash of employment tribunal claims following in the wake of Forstater seems inevitable. 

But harassing your gender critical staff through the medium of your diversity training is taking things to another level. It has various snazzy features as compared to common-or-garden workplace harassment. 

First, it’s exceptionally efficient. You don’t have to bother to harass your gender critical staff individually. Instead, with a single document or training event, you can harass all your gender critical employees at once – even including those you don’t know about (yet). Bearing in mind the prevalence of active harassment of those who express gender critical views, there may be quite a few. 

Secondly, it’s likely to be pretty bullet-proof. If you try to discriminate against staff members who express their views, there may turn out to have been something in the manner in which they did so that gives you a defence. But if you harass them at large, irrespective of whether they have said anything at all, there’s no possibility of running a defence of that kind. 

Finally, connoisseurs of such things will admire the irony. If employment tribunals awarded points for style, being found liable for discrimination contained in your diversity training ought to get full marks. But if you’re an HR manager who’d rather not be awarded points for style (which an employment tribunal might possibly call “aggravated damages”), you should be careful not to expose staff to training of this nature. 

The example given above is an extreme case, but employers should think seriously even about what may seem to them to be innocuous exhortations to “allyship,” like encouraging staff to wear a rainbow lanyard, or give their pronouns at the start of meetings or in their email sign-off, etc. The problem, in a nutshell, with pronouns and similar observances is that they are a public profession of belief. If you “encourage” your staff to profess a belief, you are in effect forcing them either to say a creed they may not believe (and which some may find profoundly menacing; for more on that, read this powerful blog),  or else to decline to say it, and thus to confess their unbelief in an environment where unbelievers may be unpopular. 

15 thoughts on “Don’t be that employer”

  1. This is a very interesting post, but, respectfully, I do not quite see how harassment is made out by being presented with diversity training that is in direct contradiction to a protected belief.

    For example, the beliefs that marriage is between a man and a woman and that gay/lesbian sex is immoral are both clearly protected (they form an essential part of most, though not all, of the popular religions in the UK). Yet, would a diversity training that included the message “Gay is good” or promoted the company’s involvement in a Pride event really be harassment?

    This is obviously sensitive to the factual matrix, and there’s certainly imaginable scenarios where there is targeted harassment against an employee with Forstaterian (if I may) beliefs on gender, or an employee with a belief that gay sex, or pork consumption are immoral acts. I think I’d have to see the whole of the “Be Less TERF” presentation to decide where it fell, but promoting a [trans-inclusive] (insert whichever term you prefer for non-gender critical—I’m not sure what the antonym is) workplace does not seem to inherently be harassment, any more than advertising free beer for one’s employees (as many startups do) is harassing the Muslim employees. Once more, we can all imagine various scenarios, and it may be very well true (it probably is given the number of UK employers) that there are diversity trainers who take actions tantamount to harassment, but I think it would have to rise to a certain threshold higher than just promoting a view in severe contradiction to that of gender-critical employees.

    1. Thank you for commenting, and for raising an important and topical question: “Is being presented with views you disagree with harassment?”

      My answer to that question is a resounding no. Robust but respectful disagreement isn’t harassment. Even quite fiery disagreement isn’t harassment, in the absence of other behaviour having a harassing quality. Anyone who finds being exposed to opinions they disagree with traumatic should take that up with their therapist, not HR.

      But seeking to place a group of employees defined by reference to a protected characteristic in a pariah class among their colleagus is another matter entirely. Let me make the parallels explicit: imagine a training segment starting “Be less gay…” – with the following content making it clear that “gay” here is used as a term of abuse, or at the least strong disapprobation.

      Now try it with some examples drawn from the other protected characteristics: “Be less black… be less Christian… be less Muslim… be less gay… be less disabled… be less white… be less Jew… be less woman.”

      It’s horrifying, isn’t it? But notice this, too. The examples I’ve just given are toned-down, pale imitations of the “Be less TERF” of the original. TERF is a slur, a term of abuse directed at gender-critical women. So to get the full effect of my examples, you need to substitute in a vicious slur in each case.

      1. Thank you for your response. I agree that the question revolves around the interpretation of the term “TERF”. I am not aware that there’s any ET/court interpretation on the semiotics here. Both “Jew” and “TERF” fall into the interesting gray-area of being both accurate descriptions and used pejoratively/as slurs. The problem with the argument that “Be Less TERF” is necessarily harassment, rather than discouraging a viewpoint against the employer’s policy, is that TERF is literally an acronym standing, in part, for “trans exclusionary”—being less trans-exclusionary, and more trans inclusive seems a reasonable viewpoint to be presented to employees. I’m not sure—and I really do mean that I don’t know how a judge would decide this—that a judge would find that telling employees to avoid being trans-exclusionary was really harassment. Most self-described “gender critical” people would presumably (and have from what I’ve read) deny being trans-exclusionary in their defence of sex-based rights , and therefore are not covered by the category described in “Be Less TERF”

        I don’t disagree that the acronym loses its benign descriptiveness when screamed at someone or attached to a threat online, but it’s also used punnily by none other than JK Rowling in her famous “TERF Wars” essay—so clearly not beyond polite discussion by a gender-critical person. It has a place in the common discourse beyond just misogynist abuse, and context is everything here. Once again, I haven’t seen the presentation here, so maybe it did consist of just misogynist content dressed up as pro-trans propaganda, but I don’t think that *ever* instance of “Be Less TERF” is necessarily harassment.

        I think that where we do agree is we can pity the poor judges and legal representatives (perhaps including you and other contributors to this site) who have to now figure out exactly where the line is. I suspect things would be much easier for everyone, regardless of viewpoint, if diversity certification was overseen by a central, qualifications awarding body instead of done mostly by self-proclaimed experts with no evidence behind it, but I don’t run the system.

        1. Ah, but I didn’t say the question revolves around the interpretation of the word “TERF”! I used that example because the term of abuse it makes the problem particularly vivid. But diversity training containing sentiments like “The views of gender critical feminists are misguided, and staff members should not express views of this nature online” would be just as problematic, if more insidious.

          This is because it is – generally speaking – none of HR’s business what staff think or say in their private capacities about matters of legitimate public debate. HR policies should mostly be about how employees behave at work.

          So it’s ok for the diversity training to emphasise that staff mustn’t harass trans colleagues or discriminate against them. It’s very far from ok for the diversity training to assert, for example, that “trans women are women”: that’s a highly contentious claim that many people reject. Similarly, it’s ok for diversity training to emphasise that staff mustn’t harass Christian colleagues or discriminate against them. It’s not ok for training to assert that Jesus is the Risen Lord.

          You say “being less trans-exclusionary, and more trans inclusive seems a reasonable viewpoint to be presented to employees.” That would be fine if “trans inclusive” just meant not discriminating against trans people. But gender critical people are slurred as “trans exclusionary” not because they want to exclude trans people from work or public life, etc. – which obviously would be terrible – but because they don’t accept that trans-identifying males are included within the definition of the word “woman.” So if HR say “be less trans-exclusionary”, they are making a demand that their staff believe something.

          That’s (a) none of HR’s business, and (b) liable to create an “intimidating, hostile, degrading, humiliating or offensive environment” for gender critical staff.

          1. “This is because it is – generally speaking – none of HR’s business what staff think or say in their private capacities about matters of legitimate public debate. HR policies should mostly be about how employees behave at work.”

            I absolutely agree with you here. I’ve worked for major multinationals and that has been the push of D&I training. Training general staff to be polite to one-another. For managers, it extended to how to support staff. For example, how to support staff who have sick or very young children. How to support staff who are being abused outside of the workplace (yes, I’ve dealt with that situation).

            “So it’s ok for the diversity training to emphasise that staff mustn’t harass trans colleagues or discriminate against them. It’s very far from ok for the diversity training to assert, for example, that “trans women are women”: that’s a highly contentious claim that many people reject.”
            Not ever, in hours of training, has this ever been stated. That’s training in two different companies.
            I’d suggest that training stating such is being too direct and is not appropriate.
            I think in condemning D&I training, you are cherry-picking the bad.

            It would be more productive to highlight the good.

          2. You are right to say that I am cherry-picking the bad: I’m warning against a particular error, which I agree not all employers are making. Some are; that’s why it’s worth giving the warning. It wouldn’t have been very useful or interesting – though true enough – to write a blog post saying “lots of employers D&I training is perfectly fine.”

        2. “Both “Jew” and “TERF” fall into the interesting gray-area of being both accurate descriptions and used pejoratively/as slurs.”

          So are you of the opinion that a seminar with the title “Be less Jewish…” or “Be less Jew…” would in certain circumstances – where Jew is used as an “accurate description” in your words – be OK?

    2. “would a diversity training that included the message “Gay is good” or promoted the company’s involvement in a Pride event really be harassment?”

      Surely it could well be if it were introduced with the title “Be less Christian / Muslim” – or “Don’t be a tedious god-botherer” for the full pejorative effect.

    3. Or just imagine it said ‘be less black/muslim/disabled/gay’. Its really so easy. Gay is good is not saying straight is bad, but be less TERF is pretty clear.

  2. Thanks for this it is really helpful. We were recently asked to add our pronouns to our email signature at work, although it was made clear that this was not mandatory. The problem is that most people have done this, and as pointed out in the post above, I have essentially been forced into the position of declaring myself by not doing so. I stand out like a sore thumb as only one other person (so far) has not included their pronouns. I’d love to have the nerve to call out the fact that this is an inappropriate request but honestly I’m too scared of losing my job or being treated negatively. I wish I were braver. Maybe I will be at some point. Still a couple of years ago I would have blindly added my pronouns so you never know.

    1. I’m never going to be in such a position thankfully but I think I might reply to HR:

      I don’t practice this religion. In my faith, it’s considered a cardinal sin to refer to anyone other than by their god-given sex. I do hope you will fully respect my faith and not discriminate against me or harass me because of my beliefs.

      That should put the fear of an employment tribunal in them…

    2. Way back in the 1970s women in my workplace were asked to join a list to declare they’d stand in for the absence of tea trolley when the tea person went on leave.(This was before vending machines). Men didn’t have to as it was considered women’s work by our director. All but 2 women ended up signing the list after we were told we’d lose our privileges for not signing ( the privileges turned out to be going to the shop to buy a sandwich at break time btw 🤣).
      Just to let you know Nothing Happened – well not quite nothing -the director was perplexed but ok about it but several of the women who had signed were mad at us and wanted us added for fairness.
      Stand your ground! Being brave is like exercising a muscle it gets easier each time

  3. My employer asked me three times in the space of a week what my gender identity is (twice on internal surveys, once on an internal application). Drop down menu of choices, no option for non-belief in gender identity. At what point does this become harassment? The corresponding question on religion had an option for atheist.

Leave a Reply to Not an employment lawyer Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.