An illustration depicting two separate paths leading to a goal, one path represents ‘Positive Action’ while the other represents ‘Positive Discrimination’.

Grasping the nuances of positive action vs. positive discrimination and their impact on your workplace is crucial for establishing a just and inclusive working environment.

In this article, we highlight the key distinctions between these two concepts and how they relate to diversity, equity and inclusion. And how one of them is, in fact, mostly unlawful in the UK.

What is Positive Action?

Positive action is a set of measures aimed at levelling the playing field for individuals who may face disadvantages or underrepresentation due to their race, gender, age, or other attributes. It seeks to address imbalances by focusing on merit and skills while also considering the needs of a diverse workforce.

For example, a company aiming to improve LGBTQ+ inclusivity might offer specialised corporate training for LGBTQ+ employees, providing them the opportunity to acquire the skills needed for career advancement.

Positive action aims to open doors but doesn't guarantee a particular outcome.

What is Positive Discrimination?

Now that we've covered positive action, let's dive into the question, "What is positive discrimination?"

Positive discrimination, though rooted in the desire to promote equality, takes a more direct approach by favouring individuals from disadvantaged groups, even if this means bypassing potentially more qualified candidates.

In simpler terms, positive discrimination would involve hiring a candidate solely because they are from an underrepresented group.

While the intention behind positive discrimination may be noble, it's often a contentious approach and is actually unlawful in the UK.

Examples of Illegal Positive Discrimination in the UK

Here are some scenarios that would likely be considered illegal discrimination under the Equality Act 2010:

Hiring or advancing an individual solely based on a specific protected characteristic, without considering legal qualifications.
Establishing quotas rather than goals to hire or promote a certain number or percentage of people with protected characteristics (age, disability, gender, etc), regardless of their qualifications or experience.
Mandating that interview panels reserve spots for individuals with certain protected characteristics, even if there are more qualified candidates who do not possess those characteristics.
Implementing programmes that exclusively benefit individuals with a certain protected characteristic, without any substantiated proof that this group is disadvantaged or has unique needs.

Examples of Legal Positive Discrimination in the UK

While not as common, there are times when positive discrimination is legal in the UK.

One example is that it’s not illegal for an employer to give preferential treatment to a disabled individual over a non-disabled person.

Picture this: Alice and Bob both apply for a job that requires a lot of computer work. Alice is disabled and has limited use of her hands. Bob is not disabled. Both candidates are equally qualified for the job.

The employer might decide to offer Alice an adaptive keyboard and voice-recognition software to enable her to perform her duties efficiently. Even though this could be seen as treating Alice more favourably than Bob, it is generally permissible under the Equality Act 2010.

An infographic presenting information on the difference between positive action and positive discrimination

The Critical Difference Between Positive Action and Positive Discrimination

So, what is the difference between positive action and positive discrimination? The distinction lies in the approach to fairness and equality.

Positive action aims to remove barriers and provide equal opportunities, whereas positive discrimination involves selecting individuals based on their belonging to an underrepresented group, sometimes at the expense of merit.

What About the Difference Between Affirmative Action and Positive Action?

The terms "affirmative action" and "positive action" are often used interchangeably, but they have distinct legal and cultural contexts depending on the jurisdiction. Both aim to address inequality and improve opportunities for disadvantaged or underrepresented groups, but their methods and implications can differ.

Affirmative Action

Affirmative action is a policy commonly associated with the United States and has more in common with positive discrimination than positive action. It involves taking specific actions to eliminate discrimination and its past effects.

This can include giving preferential treatment in educational admissions or employment opportunities to groups that have been historically discriminated against, such as racial minorities.

In the U.S., affirmative action can sometimes lead to "quotas" or "set-asides," where a certain percentage of opportunities are reserved for the disadvantaged groups.

However, the legality of these practices can vary, and the U.S. Supreme Court has subjected quota systems to strict scrutiny.

Positive Action

Positive action is more common in European jurisdictions like here in the UK. Unlike affirmative action, positive action stops short of offering preferential treatment in the selection process.

For instance, a company could host minority group leadership training sessions or encourage applications from those groups but would still be expected to hire the most qualified applicant, regardless of their background.

Key Differences

Scope: Affirmative action tends to be broader in scope and may include preferential treatment or quotas. Positive action is generally more targeted and aims to level the playing field without giving outright preference.
Legal Context: The legality of these measures varies around the world. Affirmative action policies may be permissible in the U.S. under certain circumstances, while positive action is more commonly accepted in European countries.
Approach: Affirmative action may directly alter the composition of a student body or workforce by mandating specific outcomes. Positive action seeks to indirectly influence this composition by removing barriers to entry for underrepresented groups.

Conclusion

There’s a lot to unpack when dealing with concepts like positive action, positive discrimination, and affirmative action. While equality is the intention behind all of them, it's essential to strike a balance that acknowledges diversity without compromising on skill and qualification.

By better understanding these concepts and the laws behind them, businesses and individuals alike can contribute to a more equitable and just society.

If you feel your organisation needs help with diversity, equity and inclusion in the workplace, then don’t hesitate to reach out to Michael Mauro today.

From privilege training to BAME leadership training, we’ll find a solution that is guaranteed to help your workforce flourish.

Written by Michael

Michael Mauro is the founder of a forward-thinking organisation specialising in leadership, HR and employee development. With over a decade of global experience, Michael has become a leading voice on topics such as culture, inclusion, wellbeing, and the future of leadership.

Positive Action vs Positive Discrimination: What’s the Difference?