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26 November 2011

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Anon
1.

Interestingly, 1(b) would appear to apply completely neutrally to any large statistical imbalance relating to one of the protected characteristics, not just to people historically or currently discriminated against, which is how I would read 1(a).

So in theory at least, this also means that the flip side is also now legal: positive discrimination in favor of men when recruiting for "an activity" where men hold much fewer than half the positions is permissible, even if there's no evidence that the imbalance is due to a current or historical pattern of discrimination against men.

I'm not sure how the debate goes in the UK, but that's increasingly becoming a hot topic in the US, because fields have very noticeably started pulling apart into fields that are >80% male and >80% female, with very few balanced, and some employers and schools have started tentatively expressing a preference to positively discriminate in antisymmetric fashion, preferring men for the female-dominated jobs and women for the male-dominated jobs. For example, nursing programs frequently wish to positively discriminate in favor of male nursing-school applicants, but the legal situation is unclear.

Am I reading it correctly that any positive discrimination counterbalancing a large statistical discrepancy is now blanket permitted in the UK?

Berit Brogaard
2.

That's an excellent question. I wonder if David Bain, or some other reader in the UK, has any insight into this? There appears to be some tension between 1(a) and 1(b).

David Bain
3.

It is an excellent question and I don't know the answer!

Apologies: I am not only not a lawyer, but a philosopher of mind who has thought insufficiently about such matters.

But I think you're right.

Note that clause 6 raises the possibility that something elsewhere in the Act might bear on this.

Also, for a moment I thought that 4c would make it easier for women to argue for affirmative action in coin-toss cases than men, given its talk of the action being a proportionate means to "enabling" the person to minimise the "disadvantage" or participate in the activity. But it also talks of "encouraging" the person to do either of those things, so it might be argued in female-dominated areas that men are deterred from participation by their current under-representation, hence that they need to be encouraged to participate by increasing their representation, and that this should be done by preferentially hiring them in coin-toss cases. So, again, I think you're right.

My only other thought is that if the legislators had linked clause 1's (a) and (b) by "and" and not "or" in order prevent men invoking the law in areas where they're merely under-represented, but not discriminated against, then, in order to preferentially hire women in coin-toss cases in philosophy, we would have to prove to the satisfaction of the law that women are not only under-represented, but disadvantaged, discriminated against. I've no idea, but *perhaps* current under-representation would be considered sufficient evidence for that; but if so, men could use the same evidence elsewhere (for good or ill). Better evidence would be studies of CV bias and historical-and-continuing under-representation in the area in question. It's in this sort of context that it would be not only interesting but useful to know the ratio of men and women in applicant pools, as discussed in the thread Berit links to, not that that would settle the matter.

Anyway, as is doubtless evident, I am way out of my depth. Suffice it to say that, in UK philosophy, the bar now looks quite low for having sufficient grounds to prefer a woman qua woman in a hiring decision that (and this is rare of course) would otherwise be decided by a coin toss, as it were. And that was quite recent news to me (although, to be fair, the law is quite recent too).

These are the half-baked and ill-informed thoughts of a philosopher of mind. If you want it from the horse's mouth, then I think the horse's mouth can be found here: http://www.equalityhumanrights.com/advice-and-guidance/

David Bain
4.

There is a further, useful, and short guide to the "positive action" provisions of the 2010 Equality Act here:

http://bit.ly/sEznQD

Anon
5.

Thanks for the link. That does seem to confirm that under-representation of any group is ipso facto justification for countervailing positive action, since it only emphasizes inquiring into alternative justifications in the case where the employer can't show a compelling current numerical imbalance.

Not sure what should be done as a policy matter by each employer, and I can certainly see an argument for focusing on cases of current or historic discrimination (as opposed to merely current numerical imbalance). But it at least simplifies the legal landscape if organizations now have a fairly general right to counteract demographic imbalances, when they decide the situation warrants doing so.

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