A Whopper of a blunder
March 8th was International Women’s Day, a global day celebrating the social, economic, cultural and political achievements of women.
The day also marks a call to action for accelerating gender parity.
So, when Burger King tweeted
this was, believe it or not, what they were attempting to support, however it didn’t go quite as planned.
The fast food giant hoped to bring attention to the poor gender ratio in the restaurant industry and the fact that they were launching a brand-new initiative to do their part in trying to help address it.
Explaining its actions, a spokesperson for the fast-food chain said:
The fast food giant followed up this initial tweet soon after (many say not soon enough!) with another one underneath in a thread:
There then ensued a media storm which finally resulted in Burger King apologizing for any misunderstanding.
But looking beyond the actual event itself and the repercussions that followed, are there any circumstances in which an employer can specify, for example, the required race, gender, sexual orientation or age of job applicants?
Yes, there are certain defined exceptions in the Equality Act 2010, known as occupational requirements. These, broadly, apply when a job can be performed effectively only by someone with a particular protected characteristic, e.g. either a man or a woman, a person of a specific racial or religious group, a person of a particular sexual orientation, a disabled person or a person of a particular age group.
To rely on the exception, the employer must show that, having regard to the nature or context of the work, having the particular protected characteristic is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim.
For example, the Equality and Human Rights Commission, in the Employment statutory code of practice, states that “a women’s refuge which lawfully provides services to women only can apply a requirement for all members of its staff to be women”.
The law against sex discrimination also allows what is known as ‘positive action’ in favour of one sex.
Positive action is used, often in training or advertising, to make up for a lack of equal opportunity in the past. It is intended to give special encouragement to one sex, without actually discriminating against the other. An example of positive action is giving extra training to female members of staff to help them be able to apply for a particular role if very few or no women have been employed in that role in the past.
So, in this instance Burger King are entirely within their rights to offer this culinary scholarship to women.
Ultimately Burger King’s intentions were good but unfortunately their chosen method of communicating them were perhaps a little flawed. In our opinion this shouldn’t detract from the positive impact they are trying to have on their industry.
