Positive Action vs Positive Discrimination: What’s the difference?

Lisa Jobson is a Diversity & Inclusion consultant and talent management specialist at EW Group. Here Lisa explores the differences between positive discrimination and positive action and why this is so important. 

Many employers are taking steps to improve the diversity of their workforce at all levels, particularly the middle and senior levels, but may be unsure of what they can do within the legal framework of the Equality Act 2010. In this article we look at the legal actions you can take to ensure a more diverse workplace, and the importance of understanding what amounts to positive discrimination as well as how it differs from positive action.

Find out about the interventions you can make to address under representation of minoritized groups in the workforce.

So what is the difference between Positive Discrimination and Positive Action

In the UK Positive Action is, in general, lawful and Positive Discrimination is, in general, not lawful.

Positive action is widely used in Europe, America, Africa and India to help the underrepresented groups found in those areas. Positive action is a well-established element of European anti-discrimination legislation and there are provisions that authorise member states to adopt it. In the United States positive action is known as ‘affirmative action’. As in the UK, there may be circumstances internationally where Positive Discrimination may be possible, for example, for disabled people.

International human rights law permits and may even require the use of positive action in certain circumstances.

Positive Discrimination

Positive discrimination is when an organization gives preferential treatment to people because they have a protected characteristic rather than based on their suitability.

Many employers want to do as much as they can to create more representative workplaces by recruiting or promoting more diverse staff and, of course, they want to do it within the legislative framework.

Check that your recruitment processes, both internal and external, are rigorous and lawful. An example of unlawful positive discrimination would be if an employer recruited someone not because they are the best candidate, but just because they have a relevant protected characteristic.

Similarly, it is also unlawful to set quotas to recruit or promote people based only on the fact that they have a particular protected characteristic.

When is Positive Discrimination Legal?

In relation to disability, it is not unlawful discrimination to treat a disabled person more favourably than a non-disabled person. For example, the following statement is legal:

“We guarantee to interview any disabled applicants who meet any qualification or experience criteria that we have set and are assessed as providing acceptable evidence of the skills and qualities asked for.”

Positive discrimination is also lawful under certain circumstances where it is a genuine occupational requirement. For example, a television company advertises for an actor who’s Black and male to play a specific role, or an organization supporting Deaf British Sign Language (BSL) users advertises for a counsellor who is a Deaf BSL user.

Positive Action

Positive Action allows an employer to address the fact that some groups are not well represented in their organization by, for example, offering training or encouraging applications from particular groups.

Positive action can take the form of simple things like updating job adverts to include a statement welcoming application from certain ethnic minority groups who are currently under-represented in your company.

Examples of Positive Action

• Positive action in recruitment: What if two prospective employees are found to be equally qualified for a post? In that case, employers may choose the individual who represents a protected characteristic provided that the protected characteristic is under-represented in their organization.
• Positive action in the workplace: An employer might be able to help an employee because of a protected characteristic, if they are under-represented in the organization, at a disadvantage or have specific needs.
  For example, if nearly all of the managers in the organization are men, an employer could encourage women employees to take up management training to equip them with the skills they need to demonstrate when applying for management roles.
• Positive Action – Political Parties: Registered political parties can address the under-representation of people with particular protected characteristics in elected bodies. The arrangements can, for example, include women-only shortlists for candidates, but not shortlists restricted to people with other protected characteristics. For the other protected characteristics, places can be reserved on shortlists.

Recently the Labour Party have been advised that they may have to drop all women shortlists for the next election because Labour’s women MPs now outnumber men – out of 202 MPs 104 are women.  How that will play out when selecting candidates for the next election remains to be seen.

Introducing Positive Action initiatives

Before you can introduce a Positive Action initiative you will need to demonstrate why it is needed. To do that the organization ideally should have at least twelve months’ worth of data showing that there is under-representation in particular areas. It’s not always necessary to have statistical evidence but there is a need to demonstrate information or evidence to back up the decision to use positive action when recruiting.

It is critical to prepare the workforce when a new Positive Action initiative is going to be introduced. Clear and regular communication is key. Make sure employees understand the reasons for any initiatives and the benefits it will bring both to the organization and to them.

Zara Sloane, Diversity and Performance Enablement Specialist at EW Group, says:

“It is fantastic that so many of our clients take positive action to address under representation. It is important that organizations communicate the positive actions that they are taking so that people understand it is about recruiting the best people rather than choosing people because of x, y, or z. We work with clients to get the communications right to avoid any sense of box ticking or positive discrimination. Virtually every organization benefits from taking positive action and communicating effectively about why they are doing it.”

Developing your Positive Action Strategy

When developing a Positive Action strategy, it is important to first identify the key objectives that will underpin your Positive Action strategy and its aims. For example, you might choose:

• Identifying and removing barriers which stop some people from applying
• Enhancing the organization’s brand as an inclusive ‘Employer of Choice’.
• Facilitating career and personal development
• The provision of robust workforce monitoring data
• Successful communication of strategy to the current workforce

Make sure that there is a regular review of the Positive Action plan to ensure that it remains current and relevant. This requires a regular check of equality monitoring data.

At EW Group we help organizations create inclusive cultures and recruitment processes that recruit and nurture diverse talent.