What is Positive Discrimination & Why is it Unlawful?

The perception of positive discrimination in the workplace is multifaceted and often varies among different individuals and groups. While some view it as a necessary tool for addressing systemic inequalities of the past, others view it as a form of reverse discrimination.

Understanding positive discrimination

1. What is positive discrimination?
2. Is positive discrimination legal?
3. How can you identify positive discrimination?
4. Positive discrimination vs positive action

A. What is positive discrimination?

Positive discrimination, often referred to as affirmative action or preferential treatment, is a proactive approach aimed at addressing historical injustices and systemic inequalities by giving preferential treatment or opportunities to individuals or groups who have been historically disadvantaged or underrepresented.

Legality varies vastly depending on the country. Some places in the world embrace it as a necessary tool for rectifying past injustices and promoting diversity, while other nations, like the UK, view it as unlawful.

Despite its source of good intentions, positive discrimination prioritises a protected characteristic over merit and qualifications, potentially disadvantaging others and jeopardising the principle of fair and equal opportunity.

B. Is positive discrimination legal?

Positive discrimination is unlawful in the UK primarily due to the Equality Act 2010, which prohibits discrimination on the basis of various protected characteristics such as race, gender, age, disability, and religion.

While the Act allows for positive action measures to address existing disadvantages or underrepresentation, it strictly prohibits positive discrimination, where individuals are treated more favorably solely based on their protected characteristics.

The rationale behind this lies in the principle of equality of opportunity and meritocracy, ensuring that individuals are judged on their abilities, qualifications, and merits rather than immutable characteristics. Positive discrimination can be seen as perpetuating stereotypes, undermining fairness, and violating the rights of individuals who may be disadvantaged by such preferential treatment.

Instead, the emphasis is placed on fostering diversity, inclusion, and equal opportunities through measures that promote a level playing field without resorting to discriminatory practices.

C. How can you identify positive discrimination?

While positive discrimination is illegal in the UK, understanding its potential signs can help ensure fair and objective treatment in the workplace. Here are some red flags to watch out for.

Favoritism based solely on protected characteristics

• Hiring or promotion decisions biased towards candidates belonging to a specific group, regardless of their individual qualifications or merit.
• Creating job descriptions or selection criteria that implicitly favor individuals from certain groups without a justifiable reason.
• Setting quotas for specific groups without considering the overall pool of qualified candidates.

Lack of transparency and objectivity

• Opaqueness in the selection process, making it difficult to understand how decisions were made.
• Refusal to explain the rationale behind hiring or promotion decisions when questioned.
• Using subjective criteria instead of clear and objective standards for evaluation.

Other qualified candidates disadvantaged

• Qualified candidates from other groups being unfairly excluded from consideration due to preference for individuals from a specific group.
• Candidates experiencing negative comments or assumptions based on their protected characteristics during the selection process.
• Creation of resentment or tension among employees due to perceived unfair treatment.

D. Positive discrimination vs positive action

One of the leading motives behind positive discrimination is justice for underrepresented groups of people. Statistics show that there is still inequality in the workplace.

• Gender: According to the Office for National Statistics (ONS), women make up only 33% of senior management positions in the UK.
• Ethnicity: According to the Equality and Human Rights Commission (EHRC), Black, Asian, and minority ethnic (BAME) individuals make up 14% of the UK workforce but only 9% of senior leadership positions.
• Disability: According to the ONS, 22% of working-age adults in the UK identify as disabled, but only 53% of them are in employment compared to 81% of non-disabled adults.

The solution to underrepresentation might not necessarily be positive discrimination but positive action initiatives such as mentorship programmes and targeted recruitment campaigns.

Differences between positive discrimination & positive action

1. Intent and approach: Positive discrimination involves giving preferential treatment to individuals solely based on their protected characteristics. On the other hand, positive action aims to address existing disadvantages or underrepresentation by implementing targeted measures to promote equality of opportunity without resorting to discriminatory practices.
2. Legality: Positive discrimination is generally unlawful and prohibited by anti-discrimination laws, as it involves treating individuals more favorably solely based on their protected characteristics. Positive action, when implemented within the boundaries of the law, allows for certain proactive measures to address inequality and promote diversity without unlawfully discriminating against others.
3. Scope: Positive discrimination focuses solely on providing preferential treatment to individuals from underrepresented groups, often overlooking merit-based considerations. Positive action, however, encompasses a broader range of measures, such as targeted outreach, training programs, and support services, aimed at addressing barriers to equality and promoting diversity while maintaining fairness and meritocracy.
4. Effectiveness and impact: Positive discrimination may lead to resentment and backlash, as it can be perceived as unfair and undermine merit-based principles. Positive action, when implemented effectively, can lead to a more diverse and inclusive environment by removing systemic barriers and providing equal opportunities for all individuals, regardless of their background or characteristics.

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