How do Positive Action and Positive Discrimination Differ in Practice?

‘Positive action’ continues to be implemented by employers everywhere as a means of levelling the playfield for disadvantaged groups within the workplace. However, what is the difference between ‘positive action’ and ‘positive discrimination, and how do we implement this kind of initiative effectively? 

Key Points:

• Positive action and positive discrimination are two very different methods, with positive discrimination being the illegal act of preferencing a candidate due to a protected characteristic  

• Implementing a successful positive action strategy is possible through the understanding of protected characteristics and widening the candidate pool 

What is the difference between ‘positive discrimination’ and ‘positive action’? 

Positive action is often viewed with criticism, largely due to its confusion with ‘positive discrimination. However, an easy way to differentiate the two is through their intentions.  

Positive discrimination is the illegal hiring of someone purely on the basis of a protected characteristic, such as ‘age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation’ [1] rather than on the basis of ability, in a way that is beneficial or relevant to fulfilling a diversity quota. Positive action, on the other hand, is the lawful act of minimising disadvantage, meeting the needs and encouraging the inclusion of people of a particular protected characteristic. [2] 

As a way of explaining positive action, the Equality and Human Rights Commission detail six examples of the method being instrumented in the workplace [3]:

Placing job adverts to target particular groups, to increase the number of applicants from that group 

• Including statements in job adverts to encourage applications from under-represented groups, such as ‘we welcome female applicants’ 
• Offering training or internships to help certain groups get opportunities or progress at work 
• Offering shadowing or mentoring to groups with particular needs 
• Hosting an open day specifically for under-represented groups to encourage them to get into a particular field 
• Favouring the job candidate from an under-represented group, where two candidates are ‘as qualified as’ each other (commonly referred to as the ‘tie-breaker’)

Where and why is positive action being introduced? 

With the necessity for bringing about change getting the attention it deserves, the implementation of positive action has become more popular. A recent example of this can be seen within Birmingham City Council, who announced in July of 2020 that they would move towards an arrangement that would guarantee ethnic minority representation on job shortlists. 

The change was announced in an attempt to address the councils’ past failures to recruit in a manner that reflects the community. Chief Executive, Chris Naylor, confessed that diverse interview panels and conscious bias training just aren’t proving to be enough in overcoming the under-representation within the organisation.  

Despite his efforts, Naylor noted that the announcement had since been met with both optimism and criticism. Objections voiced via social media have expressed concern. Some have argued that the policy is merely a way of shifting discriminatory practices from one group of people to another. Others have gone on to say that the policy is sure to only benefit those people who would not normally have the skills or experience to get them a job, now progressing purely based on their protected characteristics. 

How can employers implement ‘positive action’? 

While some would argue that positive action has its downfalls, existing inclusion policies don’t work. Solving inequality within the workplace should not be about tokenizing the employment of minority candidates, but rather opening up the opportunity for those candidates to succeed and progress in the first place. 

Implementing a positive action strategy can be largely beneficial and still allows for the seeking of top-level candidates and business success, alongside promoting diversity. 

In this case, there are 4 crucial points to consider: 

1. Recruit based on measurable skill, experience, knowledge and personal qualities: Selection criteria and assessment methods should measure all the things that matter for a role, and nothing that doesn’t. For example, behaviours and values can be a better guide than the academic record, which can be closely linked to socio-economic background. Further, imposing criteria that will evidently exclude a certain group based on their protected characteristics is classed as unlawfully discriminatory. 
2. Understand protected characteristics: Details of protected characteristics can be found within The Equality Act (2010) [1] and should be appropriately explored by all businesses to ensure fairness and avoid discrimination against protected groups. When understanding the experiences and inequalities of different marginalised groups, businesses are in a better position to accommodate and attract diverse talent. 
3. Establish clear accountability for diversity and targets: A employer should have oversight of diversity across all levels and monitor this consistently. In this case, where there is reason to believe that a protected group is under-represented or faces a disadvantage you can set aspirational targets to improve that diversity and inclusion in the company. 
4. Widen your candidate pool: The way you promote roles externally can improve the range of talent attracted to your company. Broadening your advertising channels and communication methods can help to ensure that those groups who are largely under-represented are equally encouraged to apply. 

Sources:

[1] Equality and Human Rights Commission. 2010. Equality Act 2010. [online] [Accessed 20/04/21]

[2] Launchpadrecruits.com. 2019. The Negative Impacts Of Positive Discrimination. [online] [Accessed 20/04/21]

[3] Equalityhumanrights.com. 2019. How To Improve Board Diversity: A Six-Step Guide To Good Practice. [online]  [Accessed 20/04/21]

[4] MGC Interview with Councillor Sharon Thompson, Cabinet Member for Homes and Neighbourhood, Birmingham City Council, 14/10/21