One of the less obvious consequences of Barack Obama being elected as the US’s first black president later this month – as all the polls currently seem to indicate will happen – is what it may mean for the concept of ‘affirmative action’.
It could be argued that the acceptance of Obama by the American public is precisely down to the success of positive or affirmative action in raising the profile of women and people from ethnic minorities within the workplace and government. And it is this type of progress that equalities secretary Harriet Harman hopes to promote as part of the forthcoming Equality Bill by allowing positive discrimination.
What Harman outlined this summer, and will be in the Bill when it is unveiled in the Queen’s Speech in December, is that employers will be allowed (though not required) to positively discriminate. This, essentially, means that if everything else (qualifications, experience etc) is equal between two candidates, the fact one is under-represented in that workplace could be used to decide between them. It could of course be applicable to a white male in some circumstances, though clearly it’s more likely to mean a woman or someone from a minority.
As the law stands it is illegal for an employer to discriminate at the selection point in this way, emphasises Sikin Andela, partner and employment lawyer at Glovers solicitors.
“You are allowed to discriminate positively when you are talking about access to training, so for example if women are not up to scratch on, say, IT skills in your organisation you could offer them a greater range of training opportunities, such as access to Excel courses. You can also discriminate by giving women who are pregnant special treatment,” she explains.
But is this legislation actually needed? Will it change how employers recruit and HR’s role and responsibility within the recruitment process?
On the ‘is it needed?’ question, the statistics alone indicate that there is a case for saying ‘yes’. Women and ethnic minorities, particularly at senior levels, are still under-represented in this country. Research by the Equality and Human Rights Commission (EHRC) found that women held only 11% of FTSE-100 directorships and not even a fifth of seats in Parliament, with the situation actually having deteriorated in the latest poll.
According to the EHRC, at the current rate of progress, it would take women 55 years to achieve parity in the government and 73 years in the boardroom.
The Chartered Management Institute also estimates that, at the current rate, it will take women 187 years before their take-home pay outpaces that of men.
Yet the consensus among HR professionals and diversity experts is such a blunt instrument as positive discrimination is not the answer and may, in fact, end up having a detrimental effect on diversity in the workplace.
In terms of its ambition, the government’s proposal is welcome, but the reality is that allowing positive discrimination won’t actually result in any huge change in how employers recruit people, argues Charles Hipps, author of the government’s Guide to Best Practice in E-recruitment and managing director of online recruitment firm WCN.
He says that many employers already practise positive discrimination by targeting a specific ethnic or gender demographic by advertising in a particular publication or website or even just through keeping issues such as quotas and diversity in the back of the mind during the recruitment process.
“An employer will, for example, be allowed to run a recruitment event at a Gay Pride march, but will not be allowed to run events specifically targeting gay people,” Hipps explains.
While the banking and finance sector may not exactly be flavour of the month at the moment, many of its big employers have made great strides to open themselves up when it comes to diversity and will probably resent anything that smacks of positive discrimination, says Sasha Scott, managing director of consultancy Inclusive Diversity.
“Most people think that diversity is about discrimination, so it is nice to be able to tell them it’s not because it is not legitimate to discriminate in this way. Therefore, making positive discrimination legitimate will simply increase levels of scepticism towards diversity and the idea of tokenism,” she points out.
In a way, the legislation is slamming the stable door after the horse has bolted, argues Simon Wilde, director of Capita Resourcing People Development.
“The government is trying to catch up with some of the practice that already goes on in organisations and is trying to pigeonhole what we mean by diversity,” he says.
Many of the arguments around diversity, such as: reflecting the society you operate in, that it can bring competitive advantage, that it makes good business sense, that it can make you a better employer of choice and so on, have all largely been won already, Wilde points out.
“The debate has moved beyond that and on to how does a diverse workforce drive an organisation? If anything, there is some inherent risk in this legislation of it just dragging the argument back to discrimination,” he says.
The all-things-otherwise-being-equal element also means it is unlikely to change how recruiters and HR operate, says Pam Parkes, HR director at Croydon Council.
“I have never been in a situation where I cannot make a distinction between one candidate or another. There has to be some merit in the selection of one person over another. You have competencies, qualifications, experience, strengths, individual team fit – by which I do not mean their face, but what strengths they will bring to a particular team. You are always able to find something distinct between two people,” she says.
Employers may find themselves having to advertise more widely and keep closing dates open for longer, argues Hipps. They will probably have to ensure their screening process is as open and transparent as it is possible to be and make sure copious notes are taken.
Yet, much as when an employer does not want to recruit someone over a certain age, but knows it can’t now admit it, what you are likely to find is employers simply citing another reason for not taking someone on.
Andela says: “The burden of proof on the employer will be very high, so I suspect employers will be too scared to do it. Unless there is a watertight defence for employers, they are just not going to do it. Who would take the risk of being faced with a discrimination claim? They’ll just find another reason why they cannot employ them.”
So, where will, or should, HR sit in all this? HR’s role, as ever, will be to translate the policy into practice at a day-to-day level, says Wilde, although worryingly, much of the detail about how the legislation will be implemented on the ground remains pretty scarce.
There will also be a clear educational element for HR, argues Parkes.
“HR’s role is going to be more around communicating with the rest of the workforce,” she says. “Managers and workers will need to understand why it is there and what it mean.”
With an issue that is potentially so emotive, HR will have a key role in ensuring that fear or cynicism around how people have been recruited does not lead to a deterioration in working relationships between different groups, adds Janice Joannou, head of organisational development at Croydon Council and newly appointed lead officer on diversity for the Public Sector People Managers Association.
HR may also find itself dealing with more claims – some justified, others not – from employees who feel disgruntled or suspect they may have been discriminated against purely on the grounds of gender or ethnicity.
The key, therefore, will be for HR to ensure it already has its house in order when it comes to recruitment and the promotion of a diverse, representative workforce, which most employers are already doing, Joannou says.
“If we are already doing excellent practice we should be ticking that agenda anyway. The point you do not want to be starting from is one of compliance. If we can mainstream the concept, we will rise above it anyway,” she says.
The Equality Bill
The Equality Bill proposes that, where two candidates are equally qualified, under-representation could (but does not have to) be used to decide between them
It is likely to result in more work for HR, particularly in ensuring hiring decisions and processes are watertight and around communication and education of hiring principles and policies
There are real fears the proposal, far from boosting representation of minorities in the workforce, will lead to a backlash from employers, with HR caught in the middle.