When does cultural awareness become discrimination?
When does cultural awareness become discrimination?
A manager wants to understand an employee better. They research the working culture associated with the employee’s country of origin, identify supposed national characteristics and use them to explain how they manage that individual.
Well-intentioned cultural awareness? Or unlawful stereotyping?
Johnson and Johnson Medical Ltd v Fayokun shows how the first can become the second.
What happened?
Ms Fayokun was born and raised in Nigeria and later moved to the UK. She joined Johnson and Johnson Medical Ltd in 2017. Her relationship with her manager was initially good, but difficulties later developed.
Her manager carried out a cultural profiling exercise using material about Nigerian working styles. She aligned Ms Fayokun with a generic Nigerian profile and used it when discussing their working relationship.
The Employment Tribunal found that the exercise included stereotypes about Nigerian working practices. Her manager told Ms Fayokun that she possessed ‘Nigerian traits’ and linked those traits to how she had managed her and to difficulties with colleagues.
Ms Fayokun brought various Employment Tribunal claims. Most failed, but three connected complaints of direct race discrimination succeeded.
What did the EAT decide?
The Employment Appeal Tribunal upheld the findings of direct race discrimination.
It rejected the employer’s argument that the Tribunal had failed to properly identify or analyse a hypothetical comparator, someone in materially similar circumstances but without the protected characteristic.
The Tribunal was entitled instead to concentrate on the central question. Why had Ms Fayokun been treated as she was?
It had found that the profiling exercise was applied to her because of her Nigerian nationality and origins. That finding supported its conclusion that she had suffered less favourable treatment because of race.
There was, however, an important procedural twist. The EAT overturned the Tribunal’s decision to extend the time limit for bringing these complaints and sent that issue back for reconsideration.
Why did it reach that decision?
The problem was not simply that a manager had tried to understand cultural differences.
The manager attributed a generic national profile to a particular employee and then used it in managing her. The Tribunal found that only Ms Fayokun was treated this way. It also found that her supposed ‘Nigerian traits’ had been used to explain workplace difficulties and the manager’s treatment of her.
Calling an exercise ‘cultural profiling’ rather than ‘racial profiling’ does not determine its legal character. Nor does a benign intention provide a defence to direct discrimination. The Tribunal can ask what caused the treatment.
The decision does not make discussing cultural differences unlawful. Nor does it prevent multinational employers from developing cultural awareness. The risk arises when managers move from understanding cultures in general to assuming that an individual possesses characteristics because of their nationality or national origins and then act on that assumption.
There is also no final determination that Ms Fayokun’s claims were brought in time. The EAT required the Tribunal to reconsider that separate issue.
What should you do now?
Audit cultural training and profiling tools
Check whether they encourage managers to understand differences or invite them to assign national characteristics to individuals.
Train managers to manage evidence, not stereotypes
Address what an employee says and does, rather than what someone from their background supposedly tends to do.
Challenge the language behind decisions
References to ‘traits’, ‘culture’ or ‘working style’ can conceal assumptions about nationality or ethnic origin.
Keep evidence individual
Performance, conduct and relationship decisions should rest on specific behaviour and documented examples.
Treat good intentions cautiously
A manager trying to improve a relationship can still discriminate. The question is why they treated the employee as they did, not whether they meant well.
