Positive action
Saturday, 30 October 2021 20:26
'Positive discrimination' - trying to increase representation for women or ethnic
minorities
Women in politics
- Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116
○ Labour introduced all women shortlists in an attempt to get more women
into Parliament
○ Each constituency had a shortlist of potential candidates - in the 'safe seats'
these lists were solely made up of women
○ Two male potential candidates - J and DE - challenged this and won
Definitions
- Eradicating discrimination
○ This involves employers taking steps (e.g. monitoring, regular reviews) to
ensure that they are not discriminating
- Facially neutral but purposefully inclusionary policies
○ E.g. recruitment from the unemployed, or from particular geographical
areas, where say, ethnic minorities may be overrepresented - the danger
here is that the majority groups could bring an action of indirect
discrimination
- Outreach programmes
○ Designed to attract qualified candidates from under-represented groups by
bringing job opportunities to the attention of these groups and providing
training to help them compete with other applicants
○ This is to combat what is known as the 'pool problem' or 'school tie' network,
formed of persons from a close cultural and social background
- Preferential treatment in employment
○ Reverse discrimination in hiring, promotion or redundancy
○ Membership of the targeted group may be a partial or the sole factor in the
decision
- Redefining 'merit'
○ Alters the qualifications which are necessary to do the job, by including race,
gender, sexual orientation or religion as a relevant factor for doing the job
properly
The problem with the symmetrical model
- Jepson and Dyas-Elliott v The Labour Party
- R v Governing Body of JFS
ECtHR
- Stec v United Kingdom (2006) 43 EHRR 47
○ Article 14 [discrimination] does not prohibit a Member State from treating
groups differently in order to correct 'factual inequalities' between them;
indeed in certain circumstances a failure to attempt to correct inequality
through different treatment may in itself give rise to a breach of the Article.
EU law
- TFEU Article 157(4) provides:
○ With a view to ensuring full equality in practice between men and women in
working life, the principle of equal treatment shall not prevent any Member
State from maintaining or adopting measures providing for specific
advantages in order to make it easier for the underrepresented sex to pursue
Equality Law Page 1
Saturday, 30 October 2021 20:26
'Positive discrimination' - trying to increase representation for women or ethnic
minorities
Women in politics
- Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116
○ Labour introduced all women shortlists in an attempt to get more women
into Parliament
○ Each constituency had a shortlist of potential candidates - in the 'safe seats'
these lists were solely made up of women
○ Two male potential candidates - J and DE - challenged this and won
Definitions
- Eradicating discrimination
○ This involves employers taking steps (e.g. monitoring, regular reviews) to
ensure that they are not discriminating
- Facially neutral but purposefully inclusionary policies
○ E.g. recruitment from the unemployed, or from particular geographical
areas, where say, ethnic minorities may be overrepresented - the danger
here is that the majority groups could bring an action of indirect
discrimination
- Outreach programmes
○ Designed to attract qualified candidates from under-represented groups by
bringing job opportunities to the attention of these groups and providing
training to help them compete with other applicants
○ This is to combat what is known as the 'pool problem' or 'school tie' network,
formed of persons from a close cultural and social background
- Preferential treatment in employment
○ Reverse discrimination in hiring, promotion or redundancy
○ Membership of the targeted group may be a partial or the sole factor in the
decision
- Redefining 'merit'
○ Alters the qualifications which are necessary to do the job, by including race,
gender, sexual orientation or religion as a relevant factor for doing the job
properly
The problem with the symmetrical model
- Jepson and Dyas-Elliott v The Labour Party
- R v Governing Body of JFS
ECtHR
- Stec v United Kingdom (2006) 43 EHRR 47
○ Article 14 [discrimination] does not prohibit a Member State from treating
groups differently in order to correct 'factual inequalities' between them;
indeed in certain circumstances a failure to attempt to correct inequality
through different treatment may in itself give rise to a breach of the Article.
EU law
- TFEU Article 157(4) provides:
○ With a view to ensuring full equality in practice between men and women in
working life, the principle of equal treatment shall not prevent any Member
State from maintaining or adopting measures providing for specific
advantages in order to make it easier for the underrepresented sex to pursue
Equality Law Page 1
