Forum: Under-reporting workplace discrimination a far greater concern
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The Opinion commentary, “ Can workplace fairness law deter errant employers and avoid worsening work conflict?
However, the writers’ fears of “frivolous” claims by employees appear overblown. While the protections accorded by the Workplace Fairness Legislation (WFL) should certainly not be misused, I believe under-reporting to be a far greater concern than false reporting in the arena of discrimination.
In 2022, an Aware-Milieu survey found that one in two respondents who experienced workplace discrimination did not report it to any channel. The top reasons for not reporting were believing the discrimination to be not “severe” enough, not trusting the authorities to act on the complaint, and not having enough evidence.
The writers suggest stringent evidentiary requirements for claims and timely dismissal mechanisms for the courts. Aware recommends, rather than raising the evidentiary burden of employees, which can deter reporting, that under the WFL, as in many jurisdictions, employees should be required to provide only a “prima facie” case, that is, sufficient initial evidence that discrimination could have occurred.
After this, the burden should shift to the employer to offer a valid non-discriminatory reason for the adverse action.
It’s also important to note that lack of awareness or malicious intent are not acceptable excuses for discrimination. We recommend that intent need not be established for discrimination claims under the WFL.
The law should provide objective criteria to evaluate employers’ actions, obliging them to cultivate an inclusive workplace. This must be complemented by public education and employer training to counteract ignorance-driven discrimination.
We must ensure the WFL encourages victim-survivors to speak up and protects those who do, instead of inadvertently silencing them for fear of a potential wave of false allegations.
Apoorva Shukla
Executive
Workplace Harassment and Discrimination Advisory
Association of Women for Action and Research (Aware)
