Discrimination lawyers on positive discrimination
Diversity at the workplace is a preoccupying issue for discrimination lawyers. The law recognises that certain groups of people are discriminated against because of their gender, disability, sexual orientation, religion or ethnicity.
In 2010 the Equality Act confirmed the legality of positive action for employers, while making positive discrimination unlawful. What is the difference? Positive action aims to erase inequalities in employment and promote diversity. However, those who disapprove of positive discrimination argue that to be equal, employers should be blind to all characteristics that could potentially lead to discrimination, and hire their employees solely based on their ability to do the work. The problem is that, even if all candidates are equally qualified and experience, the ‘blind’ approach will do nothing to redress an imbalance of minorities in the workplace
There is a fine line between positive action and positive discrimination, as discrimination lawyers know. Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
On the other hand, positive action is allowed. Employers are permitted to favour one out of a number of equally adequate candidates on the basis of their protected status. However doing so is not mandatory and there is a perception that doing it, even for laudable reasons, would get employers into trouble if candidates found out. We have never seen, for example, a rejection letter that says ‘We are sorry not to pursue your application as there were women of child-bearing age who were just as qualified and we wish to hire on of them to improve our diversity statistics’. Nor would any sane employer record that reasoning in an internal memo, even though the law would protect them. To do so would just invite litigation on the basis that the disappointed candidate was better suited for the job and discriminated against.
So why are quotas in the workplace unlawful? It can be explained by the fact that our society is meritocratic, therefore the most deserving applicant should be hired. The term ‘as qualified’ can be ambiguous. For example, two candidates could have very different profiles: one could have no work experience but a degree, whereas his competitor could have a lot of work experience but no qualification.
One reason why an employer might want to have a more diverse workforce is that it is a great defence when faced with a discrimination claim. It is harder to complain that your employer is institutionally racist if all races are well-represented in the workforce
Employers should always be objective, set out specific and unambiguous criteria for the selection of their candidates, and finally, understand which groups are under-represented and aim to redress this balance with positive action, albeit that discrimination lawyers advise them not be too transparent about doing it.
By Lily Wilde
Image used under CC courtesy of DryHundredFear