Philosophy Discussion Forums | A Humans-Only Club for Open-Minded Discussion & Debate

[Pattern-chaser]

I'm not disputing that women have faced historic discrimination in the workplace in the past, but I think it has all but disappeared today (and certainly in such large organisations as these).

This seems odd, when the gender pay gap continues to exist. There are all sorts of statistics available, depending on exactly what you choose to measure. But women are still paid less than men, many of them for doing the same job. Empirical evidence seems to contradict your opinion here.

But you see you are doing the very thing that I am attacking as wrong here; reasoning from statistical disparities to concluding discrimination.

...

Do they really identify cases of actual discrimination going on?

I understand your concerns. The use of statistics should be carefully confined to those who know what they're talking about. And have no ulterior motive or (political) aim(s). As with most science, we have to be very careful when we draw conclusions, that those conclusions are accurate and useful, not just wishful thinking.

And yet it is also the case that quite a few things can only be recognised by using statistics over *very* large samples. For example, the male menopause, so much less than the female version, can only be detected by using statistics. It's too subtle to spot by other means. Wage discrimination is just another example — there are just too many variables to take account of.

Statistics is a vital and useful tool, but it must be used with, er, discrimination and careful consideration. With that, I totally agree.

I'm attacking the very principlee that these three cases all rest on (and there are others I haven't mentioned). The very notion that one can judge the comparative values of two different employee roles (outside of free forming market prices).

Yes, as we've said, this is a significant extension to opposing wage discrimination. I still think it justified, in some cases. But not in others, of course. That's why a judge (and preferably a well-informed jury or panel too) is necessary. This is very much less defensible than the core topic of wage inequality, I think.

[Pattern-chaser]

Oh, and I object to such cases as these that remove the presumption of innocence.

They do? How? Where? Why?

That is supposed to be a cornerstone of our justice system.

[Fried Egg]

Oh, and I object to such cases as these that remove the presumption of innocence.

They do? How? Where? Why?

Because the statistical disparities in pay are observed, and then employers must prove that such disparities are justified. i.e. the employers must prove that they did not discriminate unlawfully (as opposed to the prosecutors proving that they did discriminate unlawfully). In other words, employers must prove their innocence rather than the prosecutors prove their guilt.

For example, I found this interpretation of the outcome of the Next sex discrimination case (mentioned above) on Thompsons Solicotors website offering guidance to the employees they represent:

Employers must demonstrate that any pay differences between areas of a business, where roles are predominantly carried out by one sex, are tied to legitimate business needs beyond simply cutting costs. If you are paid less than another such area doing equal work, your employer must provide clear, non-discriminatory reasons for the difference.

I mean, as if simple cost cutting is not a legitimate business need (tell that to all the businesses going bankrupt all the time). But the key point I'm trying to highlight above is that it is up to the employer to prove their innocence (once statistical disparities have been noted).

I thought this analysis (from Rollits) was interesting:

In the Next case, the Employment Tribunal held that the material factor defence was not made out by Next in respect of a number of contractual terms alleged to be unequal, including basic pay, Sunday pay premium, paid rest breaks and long service awards. Next had unsuccessfully tried to point to market forces and market prices – stating that warehouse roles command a higher rate of pay in the labour market. This was not accepted by the Tribunal and it was held that by paying retail workers less, there was a disproportionate impact on women (given the retail workers were predominantly female) and this treatment had not been objectively justified by Next – i.e. it could not show that the difference in treatment was a proportionate means of achieving a legitimate aim. The difference in pay was therefore also indirectly discriminatory.

In other words, the courts are saying that businesses are not allowed to react to market forces when those outcomes lead to statistical disparities of average pay between men and women. Expecting companies to buck the market will impose significant costs of doing business that will no doubt eventually be reflected in higher prices for customers further exacerbating the "cost of living crisis" (a crisis that is largely self imposed as a result of well meaning but misguided regulations such as this one being discussed here).

[Sy Borg]

In short, I support equality but not equity, as these terms are defined in the media today. Equality of process, not outcome. Some people are simply better than others at certain things. Ideally, people are rewarded for their output, not their skin colour, genitalia, or preferred usage of said genitals.

Ideally, but, alas uncommonly.

Today, there is a school of thought that goes directly against MLK/standard liberalism, that sees race, gender and sexuality as the most important parts of a person. It breaks humans into demographics and considers individuality as meaningless.

It's basically an algorithmic mindset that has been adopted by leaders of large populations throughout history. The larger the population, the less that individuals matter, and the more people are broken into "tribes" aka demographics.

It's a useful way of thinking if one is, say, designing infrastructure. However, in most situations, reducing individuals to membership of a demographic is dehumanising and brutalist (ignores nuance).

[Pattern-chaser]

Oh, and I object to such cases as these that remove the presumption of innocence.

They do? How? Where? Why?

Because the statistical disparities in pay are observed, and then employers must prove that such disparities are justified. i.e. the employers must prove that they did not discriminate unlawfully (as opposed to the prosecutors proving that they did discriminate unlawfully). In other words, employers must prove their innocence rather than the prosecutors prove their guilt.

Burden of proof

The burden rests on the claimant for some parts of an equal pay claim and on the employer for others. Whoever, the burden rests on must prove their case on a balance of probabilities, which means they must prove that it is more likely than not.

The claimant first has to show the employment tribunal that they are receiving less pay than a valid comparator doing equal work.

As an employer, you must then either accept the claim or prove to the employment tribunal that the difference in pay was due to a material factor which is not tainted by direct sex discrimination. If you do not prove this, the employee wins their claim.

If you do prove that the factor you relied on is not tainted by direct sex discrimination, the employee may still be able to show that it is indirectly discriminatory if it puts women at a particular disadvantage compared to men.

If the employee can do this, you will lose the claim, unless you can prove that you had a legitimate aim in doing so, and that your actions were appropriate and reasonably necessary to achieve the aim.

It looks like the burden of proof is shared, which is not in line with precedent, as you suggest. I'm not convinced this is ideal. But my own point still stands, I think? That the employer often has access to Very Expensive Lawyers, whose eye-watering cost more or less guarantees you'll win your case if you can afford them. The employee often does not have access to such 'guarantees'. Perhaps a shared burden of proof is the fairest way, in practice, to approach this difficulty?

[Pattern-chaser]

Today, there is a school of thought that goes directly against MLK/standard liberalism, that sees race, gender, and sexuality as the most important parts of a person. It breaks humans into demographics and considers individuality as meaningless.

Today, there is a school of thought that sees race, gender, and sexuality as parts of a person.

This perspective also looks at larger numbers of people, using statistics and other similar tools, to confirm or deny the existence of (in this case) inequality. As already commented by several of us, this use of statistics has to be carefully considered and checked, to avoid misidentification of causes.

Taking such an overview is not an assault against the individual. Instead, it seeks to protect and nurture the individual, but does it for many individuals at one go. It is nothing to do with groups and individuals as such. It's about equality for all people, whether those people are seen as individuals, or as members of some group, or both. But never neither.

[Fried Egg]

It looks like the burden of proof is shared, which is not in line with precedent, as you suggest. I'm not convinced this is ideal. But my own point still stands, I think?

I think not.

What is it that is being alleged in these cases exactly? That an employer discriminated by paying someone less only because they were a woman. What does the employee have to prove? Only that they were in fact paid less (or that there is a statistical disparity on average in these cases above). That is trivial compared to the employer who must then prove that they did not discriminate *. This is why I say the burden of proof is on them. They've got to do the difficult bit (proving the intent behind their decisions). It is too difficult to prove people discriminate unfairly so you make a lot easier to prosecute people by putting the burden on the accused.

I don't think this constitutes a shared burden of proof as the thing that is difficult to prove is entirely on the defendant. But even if we accept that point, it is still wrong. The burden of proof in most other aspects of law falls entirely on the accuser (as well it should).

* It's not quite as simple to say that the employer must prove they did not discriminate. It is assumed they did discriminate unless the employer can provide a sufficiently good enough reason why they were offering the rates of pay that they did. And apparently trying to reduce costs by reflecting the market rates for such labour does not constitute a good enough reason! This is precisely what any good business should be doing!

That the employer often has access to Very Expensive Lawyers, whose eye-watering cost more or less guarantees you'll win your case if you can afford them. The employee often does not have access to such 'guarantees'. Perhaps a shared burden of proof is the fairest way, in practice, to approach this difficulty?

Well, these "very expensive lawyers" didn't help Birmingham City Council, Next, ASDA, or other such large organisations that have, one after another, lost as these cases are brought against them. Probably because the employee has the backing of large unions which effectively eliminate the kind of advantage you suggest the employers would otherwise have.

[Pattern-chaser]

It looks like the burden of proof is shared, which is not in line with precedent, as you suggest. I'm not convinced this is ideal. But my own point still stands, I think? That the employer often has access to Very Expensive Lawyers, whose eye-watering cost more or less guarantees you'll win your case if you can afford them. The employee often does not have access to such 'guarantees'.

I think not.

What is it that is being alleged in these cases exactly? That an employer discriminated by paying someone less only because they were a woman. What does the employee have to prove? Only that they were in fact paid less (or that there is a statistical disparity on average in these cases above). That is trivial compared to the employer who must then prove that they did not discriminate *. This is why I say the burden of proof is on them. They've got to do the difficult bit (proving the intent behind their decisions). It is too difficult to prove people discriminate unfairly so you make a lot easier to prosecute people by putting the burden on the accused.

I don't think this constitutes a shared burden of proof as the thing that is difficult to prove is entirely on the defendant. But even if we accept that point, it is still wrong. The burden of proof in most other aspects of law falls entirely on the accuser (as well it should).

* It's not quite as simple to say that the employer must prove they did not discriminate. It is assumed they did discriminate unless the employer can provide a sufficiently good enough reason why they were offering the rates of pay that they did. And apparently trying to reduce costs by reflecting the market rates for such labour does not constitute a good enough reason! This is precisely what any good business should be doing!

That the employer often has access to Very Expensive Lawyers, whose eye-watering cost more or less guarantees you'll win your case if you can afford them. The employee often does not have access to such 'guarantees'. Perhaps a shared burden of proof is the fairest way, in practice, to approach this difficulty?

Well, these "very expensive lawyers" didn't help Birmingham City Council, Next, ASDA, or other such large organisations that have, one after another, lost as these cases are brought against them. Probably because the employee has the backing of large unions which effectively eliminate the kind of advantage you suggest the employers would otherwise have.

Perhaps we need not get so involved? Perhaps we could say that the only significant question here is whether or not the job in question is the same job for which male employees receive higher pay? Neither the employee nor the employer can answer this. That would need to be down to the tribunal, I think? To judge "That an employer discriminated by paying someone less only because they were a woman."



And if, in some recent cases, the advantage of money and expensive lawyers didn't deliver the hoped-for result, well I can only celebrate that. Unless you are suggesting that justice was/is not being delivered in these cases?

[Fried Egg]

Perhaps we need not get so involved? Perhaps we could say that the only significant question here is whether or not the job in question is the same job for which male employees receive higher pay? Neither the employee nor the employer can answer this. That would need to be down to the tribunal, I think? To judge "That an employer discriminated by paying someone less only because they were a woman."

To be clear, in these cases, it has not suggested that they are doing the same job, but rather that the jobs were of "equal value".

And no, I do not think it is right or proper that a tribunal should attempt to judge the comparative value of these two roles. It is the market that should do that. Indeed it is only the market that can make such an evaluation. And yet the tribunals have apparently divined the "true" values of these roles and declared the market valuation as wrong. If the employers aren't paying wages that reflect the "true" values, they must be discriminating (and yielding to the market prices is no excuse).

It is absurd that tribunals are even attempting to judge the objective value of employment roles (just as it would be absurd to attempt to divine the objective value of any other commodity). The sole purpose of the tribunal should be judge whether the employer actually discriminated illegally or not.

And if, in some recent cases, the advantage of money and expensive lawyers didn't deliver the hoped-for result, well I can only celebrate that. Unless you are suggesting that justice was/is not being delivered in these cases?

Yes, that is what I am saying. Justice was clearly not delivered.

[Pattern-chaser]

To be clear, in these cases, it has not suggested that they are doing the same job, but rather that the jobs were of "equal value".

Yes, and to be clear (), we have already agreed that the "equal value" scenario is very different from the simple "equal job" situation. It's far more subtle, and (IMO) needs judging on a case-by-case basis, if anything approaching fairness or justice is to emerge.

[Fried Egg]

To be clear, in these cases, it has not suggested that they are doing the same job, but rather that the jobs were of "equal value".

Yes, and to be clear (), we have already agreed that the "equal value" scenario is very different from the simple "equal job" situation. It's far more subtle, and (IMO) needs judging on a case-by-case basis, if anything approaching fairness or justice is to emerge.

It is not even meaningful to compare the value of two different employment roles (in any kind of objective sense). It is apples and oranges. There is no objectively fair exchange rate between apples and oranges. It is only supply and demand (i.e. the market) that can determine an exchange rate and it has nothing to do with fairness.

Indeed, I don't think it should be the tribunal's job to adjudicate fairness. It should be adjudicating whether arbitrary discrimination took place or not and not whether unfair outcomes (i.e. statistical disparities) resulted.

[Sy Borg]

Today, there is a school of thought that goes directly against MLK/standard liberalism, that sees race, gender, and sexuality as the most important parts of a person. It breaks humans into demographics and considers individuality as meaningless.

Today, there is a school of thought that sees race, gender, and sexuality as parts of a person.

There has never been a time in human history where people did not appreciate that there were different genders. Awareness of race started when the first person from one race met someone of a different race. Awareness of sexuality is also extremely ancient.

Problems come when these factors are rated as the most important ones, over competence, intelligence, decency, talent, etc. Appointments purely on merit results in the best possible outcomes for an organisation. There is no need for affirmative action. The job's been done to get a percentage of target groups up to speed. Continued development can now happen organically, without favouritism.

[Pattern-chaser]

To be clear, in these cases, it has not suggested that they are doing the same job, but rather that the jobs were of "equal value".

Yes, and to be clear (), we have already agreed that the "equal value" scenario is very different from the simple "equal job" situation. It's far more subtle, and (IMO) needs judging on a case-by-case basis, if anything approaching fairness or justice is to emerge.

It is not even meaningful to compare the value of two different employment roles (in any kind of objective sense). It is apples and oranges.

Indeed so. And yet, how often do we find ourselves in the ridiculous situation where we *need* to compare apples and oranges, for our own incomprehensibly-human reasons? All the time, I suggest.



And still you seem to be chasing the chimera of objectivity? These are human, moral (or morally-related) questions. Do you really think objectivity is a useful tool to address them? If so, is it the mild sort that you recommend, which is little more than 'even-handed', or the other extreme, referring to that which actually, and mind-independently, is?

[Pattern-chaser]

Today, there is a school of thought that goes directly against MLK/standard liberalism, that sees race, gender, and sexuality as the most important parts of a person.

Today, there is a school of thought that sees race, gender, and sexuality as parts of a person.

There has never been a time in human history where people did not appreciate that there were different genders.

That's very absolute-sounding, but it seems perfectly reasonable.

Awareness of race started when the first person from one race met someone of a different race.

Why are you perpetrating this myth? There is no such thing as "race", in the sense you use it here. Ask a biologist.

It shouldn't require a philosopher to ask, in a pantomime-patronising tone, "was it skin-colour you meant, dear?"

Problems come when these factors are rated as the most important ones, over competence, intelligence, decency, talent, etc.

Problems come, I think, when we attempt to compare human beings. To actually attempt a comparison of a whole person with another person. These people possess many thousands of attributes, many or most of which may be considered relevant, according to the purpose of the comparison. It looks to me like a recipe for disaster.

Such comparisons do not often result in fair, or even useful, outcomes. There are always reason why the 'wrong' choice was made. Translation: you settled on candidate A, but my preferred candidate, B, has far superior gerandliness. Time-wasting silliness, IMO.

[Yes, "gerandliness" is a made-up nonsense word.]

[Fried Egg]

My Pattern Chaser, I do not know what your last reply refers to so I cannot respond to it.

I am not searching for any sort of objectivity here. It is the tribunals, in their arrogance, that believe they can arrive at an objective judgement as to whether two different employee roles are to be considered "equal" in value.

Whatever it is the courts think are doing in these cases, identifying and penalising sexual discrimination is not it. This is what they have done:

1) Identified a disparity in the rates of pay between two different employment roles (one role that is predominantly men and the other women).
2) Determined (by so called "objective" measures) that the two roles are of equal value.
3) Determined that responding to market forces and minimising costs is not a "legitimate business need".
4) Concluded that the employers in question therefore discriminated against women.

The courts were wrong at every stage.

a) Since we know that even in the hypothetical and imagined scenario that we are completely free of all discrimination there is no reason to expect proportionate outcomes, the employers should not be forced to justify such situations.

b) The courts are wrong to even attempt to quantify the value of an employment role by any other measure besides it's market price.

c) It is absurd that responding to market forces and minimising costs should not be considered "legitimate business need". Companies that don't do that will soon go out of business.

So the conclusions they arrive at in each case above are baseless and are therefore miscarriages of justice.