POSITIVE DISCRIMINATION: Meaning, Example & Everything You Need To Know

Generally, in today’s commercial and social context, it’s critical to embrace diversity in your company so as to benefit from a diverse pool of talent from across the world. However, you must be cautious of your actions since you may unintentionally enter the domain of positive discrimination. And this has the potential to be a significant problem. Thus, understanding what positive discrimination and action are and how they relate in the workplace is critical to building a fair and inclusive working environment that does not unlawfully discriminate against anyone. Continue reading to learn everything you need to know about positive discrimination as well as its examples

What Is Positive Discrimination?

Simply put, it refers to the automatic favoring of underrepresented members of minority groups over persons from majority groups, without due assessment of merit. In other words, it refers to treating one group of people differently than another because they share a protected attribute. Meanwhile, positive discrimination is illegal in the United Kingdom under the Equality Act 2010. This is because it does not treat everyone equally.

However, positive discrimination occurs when an employer hires or recruits someone solely on the basis of their protected feature. And not instead of their actual experience or credentials. Applying certain criteria or standards in the recruitment process, or elevating a specified number of employees from a minority group are examples of positive discrimination.

Likewise, positive discrimination occurs when people with a protected feature receive preferential treatment over those who are otherwise qualified.

Positive Discrimination UK Laws

In most cases, because they have a protected feature, one person is treated better than another. However, unless there is an occupational requirement, it is typically forbidden under the Equality Act 2010. Positive discrimination based on a person’s disability is permitted and, in certain cases, obligatory, provided a duty to offer reasonable accommodations exists.

So, is it permissible to discriminate in a positive way? That’s a capital NO.

This is because discrimination, even if it is beneficial, still leads to prejudice This is true for both recruitment and advancement. Likewise, the Equality Act of 2010 prohibits employers from taking into account protected characteristics in any way. It is illegal to discriminate against someone on the basis of:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

However, treating one person better than another solely on the basis of a protected trait is generally illegal, unless there is a specific occupational necessity. This includes such a women’s refuge, where all staff members must be female. At the same time, positive discrimination based on a person’s handicap is also legal. An employer has the obligation to make reasonable adjustments to eliminate any disadvantage that a disabled job applicant or employee may face.

Positive Discrimination Examples

Generally, positive discrimination is the illegal practice of favoring potential or current employees who belong to a protected class group.  However, this comes to play whenever a job candidate or employee is given preferential treatment due to a major protected trait or is hired or elevated explicitly because of that quality, regardless of personal merit.

In the meantime, this could prompt a company to automatically favor applications from women or ethnic minorities.

Also, setting criteria or standards in the recruiting process to hire a certain number of people from a protected characteristic group, or promoting a certain number of persons from a minority group, all while ignoring an individual’s acumen as well as competence, are examples of positive discrimination.

In addition, it would be discriminatory to automatically evaluate all job candidates or employees that share a protected feature more favorably or to ensure their recruitment or promotion based on that characteristic.

Examples of positive discrimination also include:

As previously stated, positive discrimination can occur in a variety of situations, examples include the following:

#1. Let’s say there are two candidates interviewing for the same position. One of the candidates has a physical impairment and is therefore ineligible for the position. Despite this, the corporation has a quota in place to hire more people with disabilities. If the firm decides to hire an applicant with a disability in this situation, it can become a case of positive discrimination.

#2. Also, a corporation is trying to elevate someone to the position of branch manager. All of the other branch managers, on the other hand, are currently women. This promotion has two candidates, one male, and one female. The female employee has worked with the organization for a longer period of time and has achieved greater outcomes. The corporation, on the other hand, chooses to promote the male competitor.

#3. Likewise, it could be that a corporation has to make a few layoffs. Someone from the LGBT+ community who has been underperforming is one of the options. However, in order to keep members of the LGBT+ community in the workforce, the corporation decides to fire a higher-performing employee.

Positive Action vs Positive Discrimination

Generally, people mix up positive action and positive discrimination sometimes, but they differ in crucial ways. However, the main difference is that positive action is permissible, therefore in what ways does authorizing positive action differ from discrimination?

To begin with, taking specific actions to increase equality is what positive action entails. Normally, employers will actively encourage individuals or groups to apply for employment openings.

In addition, you can take meaningful action to support persons from under-represented groups under the Equality Act 2010. This is to help them overcome any disadvantages they may have when competing with other applicants or applying for development as well as training.

However, this is unlike discrimination, which occurs when someone assumes a position of office only because of a protected feature. And rather than because they are the best or equally qualified for the job. Positive action has no negative consequences for other groups.

Positive Action

This is a method of encouraging people to apply for a job. However, the application procedure for the position is the same for all candidates, and the winning candidate is selected based on their capacity for such a job, regardless of race, gender, or other factors.

However, there are a variety of things you can do to increase candidate diversity.

Firstly, you could make absolutely sure the language in the advertisement is inclusive. And, therefore, doesn’t mistakenly contain jargon that could discourage people from applying. Also, you can also advertise utilizing a variety of media, such as local newspapers, websites, Twitter, and Facebook. And at the same time other organizations that support equality for protected groups. 

Furthermore, encourage any family-friendly practices you may have, such as flexible working hours, and the usage of reasonable accommodations for people with disabilities, during the advertisement. 

Meanwhile, positive action can also take the form of specific campaigns that challenge traditional assumptions about roles. Such as the Men Do Care campaign.

Nevertheless, the essential point is that these are meant to attract candidates rather than to circumvent or interfere with the legitimate selection process in any way.

NOTE: You can contact the Equality, Diversity, and Inclusion Office for more information if you believe you need assistance with positive action work.

Positive discrimination

This refers to a type of discrimination in which someone is favored by being treated differently in a positive way. A company might, for instance, decide to appoint someone from a marginalized minority to a position without evaluating whether or not they possess the necessary skills. Meanwhile, applicants with higher qualifications are been neglected. So, positive discrimination is a form of discrimination that is illegal.

However, hiring someone that isn’t the finest applicant might lead to a slew of problems. The first is that you may be putting the successful candidate in jeopardy by demanding them to perform a function for which they are unqualified, putting them in danger of stress or worry. Likewise, you also put their professional reputation in jeopardy among their coworkers, potentially causing workplace discord.

Also, other candidates, understandably, will not be happy and may file a legal challenge to the choice. This, therefore, puts the organization’s reputation and finances in danger. Finally, harm to the organization can result from hiring someone who is unable to produce the needed product. Therefore resulting in a loss of reputation and revenue-generating.

Meanwhile, others with the same protected trait may face repercussions if they enter the workplace regardless of whether their appointment was genuine because they were the best applicant. The earlier positive discrimination may encourage their colleagues to perceive them differently.

Is Positive Discrimination Legal?

Generally, it is against the law to treat someone with a protected characteristic who isn’t as qualified as someone who is more talented and doesn’t have a protected trait more favorably.

However, you might then wonder how to diversify your personnel without breaching the law. But, notably, positive action became legal in 2011 to support the hiring and advancement of minorities in the workplace.

On the other hand, positive discrimination is a term that is sometimes misunderstood. And regardless of an employer’s motivation, it is a type of discrimination that is nonetheless illegal in the United Kingdom. Nevertheless, what constitutes positive discrimination will vary depending on the circumstances of each instance. However, the distinction between positive action that is permissible and what is illegal discrimination is frequently blurry.

Lawful Discrimination

There are a few instances or examples where positive discrimination is legal, but only under extremely narrow situations.

To start with, when a candidate has stated that he or she has a disability. In this case, if such a candidate requires adaptations to tackle the obstacles posed by their impairment during the recruitment process and even in the future. In this case, the employer or prospective employer must evaluate and execute such adaptations. 

For instance, assuming one of the candidates needs a wheelchair due to a mobility limitation, all screenings for a position should take place in a completely accessible office. The crucial aspect to remember about this exclusion would be that the applicant in question must first meet the requirements for the position. 

In most cases, impairment really shouldn’t be a roadblock to their appointment for such a position.  Each situation must be examined on its own merits, and modifications must be made accordingly.

Second Instance

Likewise, the second instance whereby discrimination is lawful is when there has to be a final selection between two applicants who are otherwise identical in ratings all through. At the same time, they’ve all passed the recruitment practices and have been awarded marks the same way all the way through. In this case,  the company or recruiting committee might decide to appoint someone from a marginalized minority in the workplace.  

However,  this is not a requirement, but rather a choice for the employer. The reality is that this is a rare case, therefore it should be a rare occurrence. In most cases, when there is a situation like this, many employers ask candidates for another interview or a second presentation so as to assist them to choose the finest of the two applicants.

Nonetheless, in both of these circumstances, the candidates go through the same selection procedure and must meet the job requirements.

Conclusion

In the meantime, employers who will probably want to diversify their staff more quickly may be upset with legal limits. While there is a low likelihood that it’s going to change anytime soon. However, a few well-intentioned but mistaken companies that strive to discriminate would be becoming lawbreakers and as a result, may face an arbitration hearing. The best and safest approach right now is to avoid discrimination and instead employ the available positive action exemption.

Positive Discrimination FAQs

What is positive and negative discrimination?

For attitudes, positive discrimination involves having higher regard for those with factor X than for those without X; and negative discrimination involves having lower regard for those with factor X than for those without X

Is positive action legal?

Positive action is a range of measures allowed under the Equality Act 2010 which can be lawfully taken to encourage and train people from under-represented groups to help them overcome disadvantages in competing with other applicants.

What are the 7 types of discrimination?

Types of Discrimination

• Age Discrimination.
• Disability Discrimination.
• Sexual Orientation.
• Status as a Parent.
• Religious Discrimination.
• National Origin.
• Pregnancy.
• Sexual Harassment.

What are the 12 protected characteristics?

Protected characteristics

These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.