Redheads in the Workplace: The Cost of “Gingerism” at Work

This posting is one in a series of our Expert Answers, where a thorny problem is posed in the form of a question, for one of our Glass Hammer resident experts to answer and explain the issue to our readers. Caroline Doran, an employment law specialist with Rooks Rider Solicitors in London, has been providing legal advice to people working in banks and financial institutions since 2000.

Dear Caroline,

I am Head of a Cash Trading Equity Desk and have four people in my team. We are a friendly team. I overhead one team member, Michael, say “Good morning Ginger” to Gail (which I assume was a reference to the color of her hair rather than her dancing skills per Fred and Ginger) and then making an aside to her later on about her being a “carrot top”.

Gail describes herself as being strawberry blonde, but her hair is really quite red or as we would say colloquially in Britain “ginger.” Gail is a very profitable member of the team and is no shrinking violet.

The only thing that concerns me is that I read in an English paper recently that “Gingerism” is now discrimination. I don’t want either to lose Gail or Michael. I especially do not want to end up giving Gail a huge stack of cash as I know that people can get six or seven figure sums in compensation for discrimination.

What should I do?

Nazaretta

Dear Nazaretta,

What is Gingerism? The term ‘Gingerism’ was splashed across the papers in the UK recently after a red-headed waitress was awarded almost £18,000 for being teased about in particular the colour of her hair by her manager. However, a lot of the press reports were quite misleading and have lead many people to think that mocking someone about their hair color is now in itself discrimination.

The legal position in the UK is that there is not a separate law that protects ginger haired people per se any more than there are laws to protect people with big noses, short legs or glasses.

The waitress in question was instead able to successfully sue her employer for unfair dismissal and sexual discrimination (harassment); the latter because the comments about her hair color from her manager were lewd and of a sexual nature, including licentious questions about whether her “collars and cuffs” matched. These comments can easily be classified as offensive and sexually intimidating.

However, Gail could potentially bring the following claims under existing law:

• In London, staff are not “employees at will” as in New York and if Gail believes she is being forced to resign or her position is untenable she can claim up to £60,600 in a compensatory unfair dismissal award as well as potential contractual damages (for notice, bonus and benefits etc.)
• If Gail was teased about being a “dumb blonde,” she may be able to bring a sex discrimination claim.
• If Gail was teased about being gray or bald, then she could formulate a claim under age discrimination legislation.

All employers know that employees have significant employment rights.

It is good news for your employer that as a manager you appreciate what could be a potential issue before anything happens; that way you can do any damage limitation necessary. Although you are the Head of the Desk and day to day manager in my experience banks will have strict policies about what should be done if anyone witnesses potential bullying or harassment.

All employees (regardless of the color of their tresses) have the following legal protection:

1. Protection against being bullied. Bullying can include name calling (as per above), cold shouldering and belittling someone. In layman’s terms anything that violates someone’s dignity at work.
2. Protection under Health & Safety legislation such as an employer’s duty of care at common law to look after an individual’s physical and mental wellbeing.
3. Protection under implied contractual terms of good faith or trust and confidence. If an employer fundamentally breaches this implied contractual term then Gail could resign and claim constructive unfair dismissal.
4. Protection from Harassment Act 1997
5. If there is any discriminatory aspect (such as sex, race, religion, disability, sexual orientation, etc.) to the bullying, then there can be unlimited discrimination compensation. In 2006 the highest race discrimination award was for over £984,000. So if Gail’s hair was being commented upon as part of a campaign to racially harass her. If he was calling her a “dumb ginger paddy” then it could be race discrimination against and Irish person and not just ordinary bullying.

So how should you deal with this situation? Although I’m sure you have heard horror stories, I believe that this can be dealt with simply.

You have not given any indication to suggest that Gail is upset about the teasing. I recommend that you subtly ask her if she finds Michael’s comments in any way offensive, intimidating, malicious or insulting. Even if she says she is not upset you need to consider covering your back. You should check the staff handbook as there may be a “Dignity at Work Policy”, for example, which says if you do not report any potential bullying or inappropriate behaviour to HR then you could be disciplined or sacked for not reporting it.

As such, if you want to cover your back and your job, you may want to play it safe and report the comment to someone higher up the food chain or to HR. (In either case you will want to make sure you have an e-mail or other written evidence showing you notified someone in authority for them to deal with it and therefore that you had fulfilled your legal duties.) You may, however, feel that you can weigh up the pros and cons of protecting your position versus escalating something which may not be an issue. It may well be that others have similar queries and you will merely be flagging it up and HR will welcome an opportunity to educate or refresh staff on this point.

Convivial teasing and genial banter is quite normal and acceptable as long its benevolent. In fact without it, in my experience, working life can be sterile. It is usually only when the good-humored friendly teasing crosses the invisible line that employers, managers and employees need to take prompt proportionate steps to protect themselves and their colleagues.

Contributed by Caroline Doran. For more information on this subject, please contact her at cdoran@rooksrider.co.uk or by phone at +44 0207 689 7000.

Caroline is also a Committee member of With Women in Mind. With Women In Mind is a networking group for professional and entrepreneurial woman which was established in 1993 by Rooks Rider Solicitors. It is an exclusive networking group primarily for professional and entrepreneurial women and offers its members a unique opportunity to socialise, interact and exchange ideas with like minded women to enhance their business, career and life in general. For more information on how to join or to attend the next networking event, on 29 November 2007, in London please contact Nicola Blackledge on nblackledge@rooksrider.co.uk

The content of this article is provided for information purposes only and does not constitute legal advice. It is not a substitute for obtaining legal advice on a specific query and is not intended as such. Whilst every reasonable effort is taken to ensure it is up-to-date no responsibility by the author or firm is accepted for any consequence of relying on it.