‘Positive action’ in recruitment and promotion allows an employer to treat one candidate “more favourably” than another based on race if the employer considers that “participation in an activity by persons who share a protected characteristic [in this case race] is disproportionately low” (Section 159 of the Equality Act 2010).
This legal provision can be used at any point during recruitment or promotion (e.g., in shortlisting or in selection after interview), but only applies when candidates are “as qualified”.
The use of practices under ‘positive action’ might seem a reasonable way to increase ‘representation’ of different races in a workforce or at a particular level within a workforce. But “as qualified” is not well defined and thus such practices could be misused and undermine merit. And there are other legitimate concerns about allowing employers to have regard to a candidate’s race.
An important concern not addressed in the Equality Act is the personal cost such practices entail. The costs to those who lose out because they are subjected to less favourable treatment based on race may seem obvious. But there are also some significant costs for those targeted by such practices. And given that the provision is intended to benefit and not present new costs to individuals from the targeted ‘group’, it seems worthwhile to consider some of these costs here.
First of all, race-based ‘positive action’ in shortlisting and selection removes the right to equal treatment and the right to be in fair competition with all one’s peers. It also disregards a person’s agency and capacity to make an informed choice about whether one wants or thinks one would benefit from ‘positive action’ based on race. This problem could be addressed by amending the Equality Act 2010 to stipulate the right to opt out from race-based ‘positive action’. Interestingly, in the case of disability and sexuality (also “protected characteristics” in the Equality Act), the candidate has the option to disclose this personal information and thus be considered for possible ‘positive action’ based on the given characteristic, or not to disclose it and subsequently not to be considered. Perhaps the same should apply to race.
A second problem is that it undermines the important mechanism whereby through applying for jobs and being successful or unsuccessful on the basis of merit, a person acquires valuable knowledge about how well he or she is suited for a particular role and how his or her qualifications, experience, skills and ability to perform in interview compare to those of other candidates competing for the same role. The ability to benchmark job application performance against that of peers (and to track progress and identify areas of weakness etc.) is a vital part of professional and personal development. If race or ethnicity informs any part of the recruitment or promotion process then this form of knowledge will be subject to a systematic bias. Such knowledge also loses value if the candidate simply does not know whether it is biased by the employer having regard to race or ethnicity.
‘Positive action’ may also (depending on the individual and specific situation) undermine a person’s sense of human dignity and self-respect, by assuming that he or she wants or needs preferential treatment based on race. It may be perceived by the person concerned (who may or may not have been subjected to ‘positive action’ but cannot rule it out) as stigmatising and perpetuating a stereotype about that race having lower intrinsic abilities and thus needing preferential treatment to be successful.
‘Positive action’ may likewise undermine a person’s sense of credibility and self-confidence. For example, a highly ambitious person might apply for a role that she knows will be challenging but believes she can succeed in. What happens when that person faces challenges in that role, as many people do at some time? She must now question whether she was in fact judged the best person for the role by the interview panel, or instead was considered, ‘as qualified’ and ultimately selected (or placed on a shortlist) to meet ‘diversity targets’.
This may also have the effect of undermining a person’s professional credibility and cause tension or discomfort in the workplace, such as if others in the workplace believe, or the person thinks others believe, he or she was recruited or promoted with regard to race and not solely on merit.
This article first appeared on Amber Muhinyi’s Substack. Subscribe here.
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“The use of practices under ‘positive action’ might seem a reasonable way to increase ‘representation’ of different races in a workforce or at a particular level within a workforce.”
It doesn’t seem at all reasonable to me. In fact it seems like a recipe for disaster – IMO borne out by how things are panning out in this area. Why on earth should we think that “representation” should be “equal” or indeed that “equality” is a meaningful, achievable and desirable goal. Events over the past decades suggest to me we should just forget about the whole idea of “equality”.
Because the social engineers want “equality of outcomes” rather “equality of opportunity”. Infact they see it as their role to manufacture equality.
Did that TV presenter / TV commercial “actor” get the gig because they are really really good oooooorrrrrr was it for…………some other reason ?
Being conscious of this MUST make them feel condescended too.
The Animal Equality Act a la Animal Farm: All animals are equal, but some are more equal than others.
The real world equivalent being discussed here is even worse, because it perpetuates the myth that human beings can be divided up into species-like categories known as races – an inherently divisive and conflict promoting Victorian pseudo-science that should have been abandoned a very long time ago.
The incitement to discrimination being discussed here (regardless of the addition of another Orwellian element, the antonymic word ‘positive’) means that we should be referring to the Inequalities Act.
The clause also indirectly perpetuates stereotypical myths about people with darker skin colour having reduced abilities, and all those possessing this completely irrelevant visual feature, plus their colleagues, wondering if they were employed on merit or as a pity gesture.
Also those with lighter skin colour wondering if they failed in an application for that reason alone.
The Act is racist (ie maintaining the tradition of inventing human categories and using them in a harmful manner) to it’s very core.
I am now finally retired at 75 but I spent many years hiring and employing both men and women in my agricultural business which had a number of different outputs.
I hired on merit first, followed by enthusiasm and then a perceived strong work ethic. If the job was for a dairy herdsman, I required the partner if he or she were married tio attend the interview as they were also key in the process as managing dairy cows is a whole work life experience and needs family support.
The ethinicity of the applicant played no part in the process over 40 years although I did once ponder a longer time before employing a Welshman!
I got all the way to the end thinking how reasonable. I am Welsh and burst out laughing in a crowded canteen. I don’t like being looked at, please stop.
You would in those days probably not get that many applications from Muslims or Hindus or black people to look after sheep though. So your choice of who to employ would probably come from within the ranks of white people. But ofcourse I do agree with your criteria for assessing suitability for employment.
Thank goodness I’m retired!
There was a recently published study from a US College (which I have lost unfortunately) that identified that people who made it into college or graduate employment because of a ‘generosity’ towards their protected chararacteristics felt guilty as they felt they hadn’t deserved their place. Common sense isn’t very common!
This basic understanding has been in place since this study was published:
Adams, J.S., (1965) “Inequality in social exchange”, in L. Berkowitz (ed.), “Advances in Experimental Social Psychology”, Volume 2 London and New York: Academic Press
This goes to the heart of the whole nonsense of ‘EDI’ which, despite common sense views to the contrary, is being pushed in the bureaucratic world; especially the NHS.
I used to volunteer with the NIHR, a part of NICE, which is an organisation whose goal is “to improve the health and wealth of the nation through research.
Sadly, I had to stp down recently and an excerpt from my resignation note below shows why:
” …The post from Professor Chappell regarding the new NIHR EDI Strategy for 2022-2027 caught my eye. Reading through all the associated documentation, it is clear that a considerable amount of time and resource has gone into the production of this strategy. However, I do wonder how this is relevant to the NIHR published mission of “To improve the health and wealth of the nation through research”?
I have seen no evidence that NIHR is failing in any of the EDI elements. Have we been told by any researchers that they chose not to apply for support because we were recognised as being non-EDI compliant? Do we really treat different researchers in different ways? Can we actually determine which researchers apply to us for support? Can we tell them who to include as their research subjects? As an extreme (and silly) example: does our EDI strategy mean we cannot support a study into sickle cell anaemia because it tends to only affect one particular ethnic group?
I can see that individuals who have ‘EDI’ in their job title will wish to push for the strategy for all they are worth. However, for a strategy to be relevant it must benefit the organisation concerned. It seems to me that NIHR are just climbing aboard the virtue signalling bandwagon along with the rest of the NHS; and at a time when EDI is being challenged more and more as to its real purpose. And what is behind the 2022 -2027 tagline? Does NIHR plan to drop ‘EDI’ and then introduce ‘white privilege’, ‘critical race theory’ or even ‘toxic masculinity’ strategies?…”
It’s only ever racist or sexist when the winner is a white bloke. Any other outcome and it’s a triumph for DIE. Which is essentially what I wish would happen to all the woke loons out there responsible for spreading this cancer of a doctrine.
‘Positive Action’ is racism by another name.
If ‘Positive Action’ is acceptable in hiring then maybe it will be considered to be acceptable in salaries/wages in the future (some get paid more or less for doing the same job at the same level of competence depending upon ethnicity)?
The problem with any form of “equality” is that is fundamentally unfair. You can either have an equal society or a fair society – an equal and fair society is an oxymoron.
Some people are better at some things than other people. You can make an argument as to why certain strengths should be more highly regarded than others (why are intrinsic male skills generally more valued than intrinsic female skills?) – but that’s an argument about conscious ranking of status rather than that men and women are, in a universal sense, equally good at everything (spoiler: they’re not).
The sense of fairness is hard-wired into us as a species – it’s even been observed in higher primates. It’s intrinsic and powerful. The idea of equality is not. That is why we instinctively know that it is wrong to not let someone eat in a restaurant purely based on their skin colour, and why we also instinctively know that it is wrong to give someone a job instead of a more suitable candidate purely based on their skin-colour/gender/sexual preferences.
Unfairness makes us angry. We evolved to hate those who practice it, and to hate those who benefit from it. None of this will end well.
Positive Discrimination is still Discrimination. It is just that when the social engineers discriminate, they assume it is all for the greater good. But we see this happen everywhere. In TV adverts eg black people are massively overrepresented relative to the percentage of black people in society at large. Why?—— Woke Capitalism, where companies think (or say they think) they should not just be about making money but should show social responsibility as well (Total guff). ————-I remember seeing the makers of the TV series “Bridgerton” claim that their casting was “colour blind” when queried over the amount of black people in their period drama, when there were not really many (if any ) black people around in those days. Yet imagine the spitting fury from the woke and social justice warriors if Nelson Mandella were to be played by George Clooney.