The spotlight shone on women and ethnic minorities being underrepresented in senior management positions over the last few years has led to a raft of measures focused on ‘righting’ the perceived disparities. Among these measures has been the advent of positive action, which is sometimes mistaken for the unlawful positive discrimination. In this article, we will go over the differences between the two practices and highlight the distinctions between them.
Research from various global institutions has shown that there is very little knowledge about the positive action provisions allowed by the law, particularly in using the “tie-breaker” provision. Before we dive into what the law does and does not allow, we should first understand what positive action and positive discrimination are.
Positive action measures are ones that aim to encourage individuals from underrepresented groups to apply for roles or to help them gain skills that will enable them to compete on merit on an equal footing with others.
Positive discrimination measures, on the other hand, are practices that offer preferential treatment to benefit members of a disadvantaged or under-represented group who share a protected characteristic, in order to address inequality. For example, a company that has very few women on staff might decide to interview and hire only women, regardless of expertise and suitability for the position. This is actually unlawful and valid grounds for prosecution.
What is Allowed under Positive Action
Most legislation agrees that general positive action, as well as the tie-breaker provision that we will come to later, can be used to increase the talent pool of a company, as well as decide on recruitment and promotions. It is important to remember that positive action cannot be mandated, and is therefore always voluntary.
Positive action is allowed only when a company can reasonably demonstrate that a protected group is underrepresented or faces a disadvantage. This doesn’t need to entail complicated statistical analysis – it can be enough to simply look at how other companies in your field operate and compare to the way you do things.
Positive Actions for Increasing the Talent Pool
If an employer feels and can show that people of a particular group are at a disadvantage due to a shared characteristic, have different needs or are simply disproportionately under-represented, he or she can take proportionate positive action to either encourage people who share the protected characteristic to overcome or minimize that disadvantage or meet those specific needs.
The proportionate part of the above statement is essential since a measure goes from being positive action to positive discrimination if a different group is negatively impacted by the decision. For instance, let’s say that a pharmaceutical company sees that they have very few female researchers on staff, and wants to take positive action about it. What do you think they should do?
If you think that the answer would be to attend a job fair aimed at women and explain the benefits of working in pharmaceutical research, provide guidance on relevant classes and courses and highlight the contribution of female pioneers like Françoise Barré-Sinoussi and Averil Mansfield, then you’re absolutely correct!
Legislation allows in cases of recruitment and promotion, provided all statutory conditions apply, that an employer can look more favourably on a candidate from a protected group over one from a non-protected group. However, this is not meant to be used to discriminate against a particular group.
For the tie-breaker to be lawful, both candidates must be equally qualified for the open position. Let’s take the very real example of a support group for troubled teenagers, that focuses on a predominately Muslim neighbourhood, but mostly staffed by non-Muslims. A councillor position has opened up and two people have applied – an African-American woman and a Muslim man. Both have equal merit when considering overall ability, competence and professional experience together with any relevant formal or academic qualifications. Which should the employer choose? If you said the Muslim man, then you’re right. The fact that the Muslim man would be in a better position to assist the community would tip the scales in his favour, and the African-American woman would not be able to claim she was discriminated against.
Do you feel you understand the differences between positive action and positive discrimination better now? Please let us know in the comments below!