Positive Discrimination in Hiring: Is It Good or Bad?

Anete Vesere (1)

Anete Vesere

Content Marketer

We live in the 21st century. There should be no room for doubt about the business case for diversity in the workplace anymore. Workplace diversity can be considered an actual competitive advantage rather than just something companies tend to boost about as means of improving their reputation.

Imagine a scenario where you interview two people for the same position. 

  • Candidate A has a protected characteristic which you have a quota to fill (e.g. a person of color) but is less suitable for the job.
  • Candidate B is more suitable for the job role.

You end up hiring Candidate A even though they are less suitable or qualified for the job, simply because they have a protected characteristic. 

This is positive discrimination.

In this blog, together we’ll uncover whether it is a good or bad practice to implement… ????

Positive Discrimination

What is Positive Discrimination

Instead of unconsciously (or sadly, sometimes consciously) discriminating against any candidates that might be considered of a minority group or discriminated against based on protected characteristics (I’ll tell you more about that in a bit) – positive discrimination implies that these groups are prioritized when making hiring-related decisions.

Often also referred to as Affirmative action, it is a term first used in the United States in March 1961, created with the goal of actively encouraging:

Affirmative action to ensure that applicants are employed, and employees are treated fairly during employment, without regard to their race, creed, colour, or national origin.

Positive discrimination at the essence of it works the opposite way as standard recruitment bias which can leave lots of room for discrimination throughout the hiring process. 

What are protected characteristics?

The 9 protected characteristics

Since the creation of the Equality Act 2010, there are 9 protected characteristics when it comes to discrimination:

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

Why are they protected?

To clarify things before we dive any further into discussing positive discrimination, let me first explain why these 9 characteristics are protected. These 9 characteristics were chosen because of the vast majority of evidence indicating that there is still significant discrimination in employment regarding these characteristics. Now you might be wondering – what does it exactly mean that they are protected. Well, it means that it is against the law to discriminate against someone based on either one of these above-listed characteristics. 

Let me give you some obvious and some not so obvious examples of how this can play out when it comes to employment:

Age. For example, fresh graduates being rejected from entry-level jobs as a result of lack of professional experience. Or in contrast, older people being rejected based on, for example, the fact that they are perceived less likely to be capable of keeping up with technological advancements.
Disability. Automatically excluding candidates with a disability from the candidate pool solely because they have a disability. Or for example, workplaces not providing reasonable adjustments to ensure the comfort of anyone with a disability. 
Gender reassignment. In workplaces the main concerns for someone transitioning will be the acceptance of their colleagues and the use of their new identity and security of their personal data.
Marriage and civil partnership. At work place related social events, invitations often can exclude same sex partners, thus giving a very clear message of a culture that is not inclusive.
Pregnancy and maternity. For example, it often happens that single women are more likely to get hired than women who are pregnant.
Race. For example, unemployment amongst minority ethnic communities is higher than in white communities. A study shows that there is a significant discrimination against African-American names: White names receive 50 percent more callbacks for interviews.
Religion or belief. This type of discrimination is often expressed in terms of refusing to recruit, hire, or promote a person because of they are of a certain religion or uphold certain beliefs.
Sex. Teating applicants unfavorably because of that person's sex, for example, not considering women for Software Engineer jobs because of the assumption that men are better at that.
Sexual orientation. This can be, for example, in the form of harassment, such as throughout the interview process making offensive or derogatory remarks about sexual orientation (e.g., being gay or straight).

Protected characteristics apply to everyone. From Angela Merkel to Borat, everyone has a race, sexual orientation, marital status, and so on. No matter who you are in regards to all this, these aspects of a person cannot be considered when hiring.

Examples of positive discrimination

Take a look at these examples of positive discrimination:

  • Setting quotas or benchmarks throughout the recruitment process to take on a proportion of people from a protected characteristic group.
  • Promoting a specific number of people within a minority group.
  • Hiring someone with a disability solely to fulfill a quota.

Can discrimination be positive?

As I mentioned at the beginning of this blog, positive discrimination or more commonly referred to as affirmative action was once created with the aim of ensuring that applicants are employed, and employees are treated fairly during employment, without regard to their race, creed, color, or national origin. However, over time it has developed to become quite the opposite of what it was intended to be.

Now it is often perceived as replacing old wrongs with new wrongs, all while simultaneously:

  • Hindering reconciliation
  • Undermining the achievements of minorities or those of protected characteristics
  • Actively encouraging individuals to identify themselves as disadvantaged (in cases when they are perhaps even not)
  • Increasing racial tensions
  • Resulting in benefits for those individuals who are privileged within minority groups at the expense of those who are not

So, what once was created with the intention of abolishing or at least diminishing discrimination, has become the exact opposite. – discrimination. This brings me to my next point – is positive discrimination even legal?

Time to work on boosting diversity by hiring new team members, right?

For example, what to do if your Engineering team is not as diverse as you'd like it to be?

You advertise a position for a Software Engineer.
Receive 10 CVs - 9 from men, 1 from a woman.
You don't review CVs.
Just offer the job to the woman.

You cannot just give someone a job solely because they are a minority.

Do you see my point? If you do that, it automatically devalues their accomplishments because they are chosen solely because of a protected characteristic, in this case, gender.

Many communities have been wronged in the past and there should be steps taken towards fixing that but that’s exactly it. People perceive this aspect of “fixing it” as treating individuals from minorities or marginalized communities in a special way when, from my understanding, all they’ve ever wanted is to be treated the same as anyone else and get equal opportunities when it also comes to employment.

So, the short answer to the question of whether positive discrimination is legal is no

Of course, there are certain specific situations when race, gender, or sexuality can become a factor within a job application. But that can really only occur in two instances:

  1. If it is relevant to the job, which is most definitely a rare situation.
  2. There are two candidates that are equally qualified, but one of them is from a minority group that is not well represented within the company.

However, there is a legal alternative to this which is called Positive Action. Already has a less negative connotation to it than positive discrimination, right? 

Positive action

What is positive action?

In contrast to positive discrimination, positive action implies changing society in a way that provides and ensures equal opportunities for everyone. For example, companies can do this by actively (and proudly) encouraging people with protected characteristics to apply for open job positions at their company.

This is legal. And has absolutely nothing wrong with it.

The Equality and Human Rights Commission Statutory code of practice on employment defines positive action as the following:

“The Act permits employers to take positive action measures to improve equality for people who share a protected characteristic.”

The difference between positive action and positive discrimination

Positive discrimination implies that groups of protected characteristics are prioritized when making hiring-related decisions.

Positive action is taken to benefit those from one particular protected group that does not involve less favorable treatment of those from another protected group, or to eradicate discriminatory policies or practices, which will normally be lawful.

Positive action is not the same as positive discrimination, which is unlawful.

Positive action doesn’t negatively impact other groups. Meaning that other groups are not being discriminated against.

Positive action is taken to benefit those from one particular protected group that does not involve less favorable treatment of those from another protected group, or to eradicate discriminatory policies or practices, which will normally be lawful.

Positive action is optional, not a requirement. However, if you plan to take positive action, then you need to ensure you comply with the requirements of the Act to avoid unlawful discrimination.

Examples of positive action

  • Your profession has very few women, so you run an open day for women to raise awareness about the industry.
  • Another example of positive action might be, advertising a job in a magazine with a largely LGBT+ readership, while also advertising in the national press.

Benefits of positive action

According to the Equality and Human Rights Commission Statutory code of practice on employment, there are 3 main benefits positive action in employment can bring. Let’s briefly discuss them one by one.

A wider talent pool

Diversity in the workplace is a direct representation of diversity within the talent pool. Having a diverse workforce matters – as diversity is the absolute catalyst for ensuring growth. 

On top of that, a diverse talent pool serves as a safety net for your company – it is the first place to look for qualified candidates when a new job role opens, and if luck is on your side and the talent pool is big – it will allow for finding the best-fit candidates for each open job position you might have.

Dynamic workforce

If your workplace is diverse and inclusive, it will leave a positive impact on your organizational culture. 

When interacting with people from different backgrounds, nationalities, views, beliefs, and different life stages, your employees will be able to form better awareness of each other’s world views. This way raising the awareness surrounding the importance of constant exchange of opinions and thoughts, as well as the crucial role that diversity plays within the workplace.

Workplace diversity can improve your talent attraction

I’m pretty sure (or at least I hope so) that the vast majority of companies out there understand and truly value the importance of workplace diversity and inclusion. Many are implementing hiring practices that are fair and attempting to provide equal opportunities for everyone that applies. While previously this might have been something to do as a formality on a surface level (to look good), now it has become a conscious effort to actively look for people from all walks of life. 

Companies that continuously and actively showcase their commitment to DE&I and can back it up with actual real-time results are the companies that are the most in-demand by candidates.

Begin hiring based on what matters

Discrimination, positive or negative, shouldn’t be hard to combat, but diversity doesn’t happen overnight. But don’t worry, Rome wasn’t built in a day either.

Magically, it all seems to come down to how and who you hire. If you aren’t attracting candidates from a wide range of backgrounds, your office will always look the same. But before you start herding up different groups and setting patronizing quotas, you need to have a hard look at your application process.

  • Is your application process fair – do you suddenly lose more than 30% of your female applicants at one stage? Let me give you an example: if your talent pool consists of 100 candidates, and only 1 of them is a woman – she might as well look for a job elsewhere because her chance of being hired is close to none. It is only an equal representation within a talent pool that can balance out the odds of diverse talent being hired.
  • Do you only evaluate and screen candidates based on their educational level? Selecting candidates based on their educational degree is not only unfair but also a huge risk for your hiring success. On top of that, it means you’re discriminating against candidates who perhaps did not have the opportunity to acquire degrees from top-notch universities.  There’s even scientific proof that selecting candidates on their educational level is nonsense!
  • Is CV screening your main selection method? A resume shows the eligibility rather than suitability of a candidate. Therefore, hiring decisions are often based on wrongfully made assumptions that arise when evaluating someone based on their CV. This also leads to a lack of diversity in teams and discrimination throughout the hiring process.

If you want to prevent any type of potential discrimination through the hiring process – I’ve got a few tips prepared for you. 

Here’s how to prevent discrimination throughout the hiring process

When identifying hiring needs

Set objective hiring criteria

  • Analyze your team, first, to objectively reveal your hiring needs. Understand what are the cultural and traits of each team to find out who will fit in
  • Think twice about your hiring requirements because many skills can also be learned on the job. (example?) technical skills can be taught, who you are can’t be changed.

When writing job descriptions

  • Get that job description right: Write more inclusive job descriptions (here’s a 5 step guide you can follow).
  • Showcase that you truly care about DE&I and practice what you preach. In fact, research has shown that emphasizing your commitment to ensuring diversity and inclusion has a positive effect on overall organizational attractiveness. This not only results in attracting high-quality applicants but also improves and diversifies your talent pool. 

Throughout the candidate screening process

When conducting job interviews

Conduct interviews in such a way that it actually removes bias by:

The most successful way to overcome Discrimination: Gamification

Harness the power of data in your hiring process.

Quote from Dr Marcia Goddard: "To start hiring objectively, collect as much data as possible, at the start of the hiring process.
It should be data that is collected through an objective method, without any interference from human interpretation.

Making use of game-based assessments is a great way to do so.''

Here, at Equalture, we have made it our mission to help companies hire people based on what’s actually predictive of job fit and culture fit: cognitive skills, behavior, and personality. Instead of basing your hiring decision on gut feeling and first impressions.

Our library of scientifically-validated gamified assessments, which candidates are asked to complete right at the start of the hiring process (this takes around 15 minutes). 

This way allowing you to look beyond your bias & hire top talent objectively. 

Curious to play one of our games? 

A visual of one of the games that is non-cheatable and measures a specific skill/personality trait.

Cheers, Anete

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