This article was originally published by HR Grapevine and is available here.
Positive discrimination refers to treating someone who is 'different' in a positive way, but often refers to appointing someone from an underrepresented group based on their identity more than than their skills or ability.
Even though positive discrimination can have negative effects and be highly controversial, some say it’s necessary in creating significant and meaningful diversity in the workforce. Yet, positive discrimination is unlawful in the UK.
According to the government website ‘recruiting or promoting a person solely because they have a relevant protected characteristic (without regard to the legal criteria)’ is unlawful, while ‘setting quotas (as opposed to targets) to recruit or promote a particular number or proportion of people with protected characteristics irrespective of merit’ is also considered wrong.
For example, RAF recently faced legal action for unfairly penalising white men in their D&I quota which aimed to increase the number of women and ethnic minorities, this included a quota of 40% of the workforce to be women and 20% of the force to be from a minority background. As a result, the pressure to meet these targets resulted in ‘unlawful, positive discrimination.’
Battling unconscious bias
Even though positive discrimination in recruitment is unlawful, most firms still have functions in place to increase the number of candidates from diverse backgrounds applying to their jobs, increasing the talent applying from these groups rather than choosing individuals based primarily on their background alone.
But some believe that the laws around positive discrimination must change. For example, Sara Thornton, the chair of the National Police Chiefs’ Council has said, in an interview with the Guardian, that unconscious bias is still ingrained in the UK police force. “It will take a long time. The turnover of police officers is really quite slow, so it is about 6% a year, it’s always going to take you a long time, and it’s about whether we can wait,” she said.
Thornton says that because discrimination is a part of the fabric of the force, the police force is likely to be too “white for decades to come” unless laws around positive discrimination are implemented to “shock the system”. In this sense, without positive discrimination it’s likely to take a much longer time for diversity to become prevalent in typically non-diverse spaces.
This is particularly poignant considering the fact that there are socio-economic barriers to entry for people from minority ethnic backgrounds and representation from these groups typically has the positive effect of more people from these groups entering the business or industry.
Studies show that people hire and gravitate towards candidates that are similar to them. As part of unconscious bias, recruiters might also unconsciously recruit candidates who are like them, making the argument for positive discrimination stand out more.
Mandy Watson, Managing Director at Ambitions Personnel, says: "On the face of it, the argument that 'the best candidate should get the job' makes sense.
"But those that adopt positive action recognise that individuals in marginalised groups are not starting from the same point and must overcome more barriers and stigmas even to be considered alongside those who don't. Mainstream attraction and recruitment methods can be subject to bias - both conscious and unconscious, which is often why those with protected characteristics are underrepresented in the workplace.
"The emerging thinking is based around equity over equality – as was seen just this year in the theme for International Women's Day, which recognises that different circumstances may require different resources in order to be able to achieve the same outcomes.
"It also comes down to the speed at which change is expected or required. For example, in industries where turnover is low, and people tend to stay for the longer term, natural change is going to be a lot slower unless such initiatives are implemented."
Positive discrimination is controversial and complex. Although candidates should certainly get a job based on merit, inequality and historical discrimination means that not all candidates start on the same foot, with there often being a lack of minority ethnic candidates in a specific sector or rank.
This, and the fact that diversity is seeing slow progress, is often an argument for positive discrimination. But finding a balance between hiring fairly, increasing the number of people from ethnic minority backgrounds, and ensuring a low level of unconscious bias is tricky. As many spectators have indicated, a lack of speed in the journey to diversifying workforces makes the need for new solutions pertinent. With many firms cutting D&I officers in a bid to stay afloat amid economic strain, the future of diversity enforcement becomes even more unclear.