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Terms from Worms: “Positive Discrimination”

Over the past two days, I have been visiting at Queen’s University, Belfast, where I was giving a talk.  I had the pleasure of a long conversation over dinner with several members of their faculty.  We were trying to make sense of the British approach to achieving diversity, in employment and in higher education.  Each person at the table had some experience living in a society trying to repair the damage of discrimination, whether between Protestants and Catholics, blacks and whites, Muslims and Christians, or men and women.

The core puzzle for us was the concept of “positive discrimination,” which appears in the British context, but not in America or most of Europe.  The invocation of “positive discrimination” had mystified all of us at one point or another, as it seems to go counter to the goals of diversity.  To be honest, it presents a strange way of thinking to those of us who have experience with more assertive structures aimed at inclusion, especially the American concept of “affirmative action.”

So, on the way home from Belfast, I did a bit of poking around on the internet to try and understand better what this notion of “positive discrimination” really is and does.  What I found chilled my soul.

Essentially, in the United Kingdom, the doctrine of “positive discrimination” made it illegal to hire or give benefit to a minority candidate if an equally qualified white male was presented.  So, let’s say an employer (or a university awarding scholarships or nearly any other institution in the position to offer opportunities or rewards) was faced with three candidates with the same credentials, one woman, one white man, and one black man.  Whoever was making the decision would be compelled by law to hire the white male. Otherwise, they were guilty of positive discrimination, which was illegal.

What this means, then, is that the only way you could legally hire the woman or the black man was if they were more qualified than the white male.  We now understand that a key reason why women persistently lag behind men in pay and rank is that they are hired into positions below their male peers–and they never catch up.  In the UK, the positive discrimination provision must be a main contributing factor:  it basically guaranteed that women (and other minorities) would always be underemployed–that is to say, over-qualified for whatever position they held. That’s because if their qualifications matched the job, a white male would always get the nod.

Mind you, I am not saying the white male would tend to get the job because the prejudices of the employer would tip in his direction.  And I am not saying that the white male would get the job because his qualifications would be subtly valued more than the other two even if equivalent. (Though certainly we know that those two conditions prevail in most circumstances–which is why we needed equality legislation in the first place.)  What I am saying is that, all other things being equal, British law would give the white male the job because he could sue the employer for reverse discrimination if one of the minority candidates was hired.

The counter to positive discrimination was often said to be “positive action,” which is allowed under British law.  Positive action lets the employer reach out to minorities by, for instance, advertising in places they are more likely to see the job listing.  However, these efforts were negated by positive discrimination provisions because if the minority person pitched up in response to the ad, he or she would be automatically rejected if an equally qualified white male also appeared.

Indeed, it seems to me that the positive discrimination provision effectively negated all of Britain’s legislation aimed at achieving equal opportunity, especially because it applied to things like school scholarships as well.  My colleagues and I all have had the experience of suggesting in a scholarship meeting that, given a range of equal candidates, the funds be awarded to the minority–and having all the Brits express shock and disgust at our intention to discriminate against the white male.

I honestly cannot comprehend how one can justify a policy that requires people to give jobs, awards, and promotions to white males whenever there is an even match.  This is supposed to be fair?  It seems to me that this policy only guarantees that discrimination in its most frequent form (the kind that advantages white, wealthy, heterosexual males) will continue.

This is how the White Old Rich Men (“worms,” a colloquialism my Belfast friends introduced to me) stay in power. Hence the title of this blog:  Terms from Worms.

Now the good news is that the UK’s Equality Act of 2010 made it possible for an employer to hire an equally qualified minority candidate without being sued.  The law basically reclassified such a step as a form of positive action, beginning in April 2011.  However, my experience is that most people don’t know the law has changed and, according to press reports, most employers have no intention of changing their practices–because they see hiring an equally qualified women over a man as an instance of discrimination, but see the choice of a male over a female as morally unproblematic.

Further, there were several provisions in the 2010 Equality law that experts said they doubted would ever actually occur.  One of the most important of those is a requirement that companies with more than 250 employees disclose their payscales by gender–that provision is supposed to go into effect in April 2013.  We shall see.

It is interesting to note that United States law has gone in exactly the opposite direction: affirmative action, which is the choice to hire, promote, award, or admit a qualified minority for purposes of diversity, was upheld by the Supreme Court when it was challenged by Allan Bakke in the 1970s.  In the courts, affirmative action has had to be defended increasingly over the years, but public opinion polls show the American public generally continues to support the principle.  That is some mildly encouraging news in the face of the media onslaught around the Presidential election.  Those stories show us just how prejudiced Americans still are when it comes to race and gender.

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