Tuesday, July 08, 2008

Why Positive Discrimination is a Bad Idea

Whilst I've been writing all about privilege, the government have been talking about the new Equality Bill, which is suring up age-discrimination legislation and pay transparency. But the biggest story form this concerns a backwards step.

I guess the reporting of this story proves a point I'm about to make. What is being proposed is that rules about discrimination will be loosened up so that in some cases, people can discriminate between groups where discrimination has previously been illegal. The legislation will make it equally legal to discriminate in favour of men as in favour of women as it will vice versa (if this can be justified), but it has been presented as exclusively about promoting the interests of women and minority groups to the extent that even the Observer ran with Equality move could hit white men

There are a few different terms for this practice; in the UK it is generally called positive discrimination, but some people prefer the more euphemistic and American term of affirmative action. The Equality Minister, Harriet Harman, has opted to combine the two into positive action (full of meaning, that one). In any case, it is all very disappointing.

The only way to achieve equality is to win the argument. People think that a particular difference matters when it doesn't matter at all. Through the power of reason, the truth is revealed. Unfortunately, it is not just one argument that takes place at one point in time, after which everyone is convinced - if this were the case, we'd have eliminated every conceivable form of prejudice several millennia ago. So the argument must be made and repeated again and again. Even after societal consensus is achieved it bears repeating so that we remember why we behave as we do.

Legislation which outlaws discrimination supports this process in several ways. It raises the profile of the argument and provides an official line. Age discrimination now has official disapproval. It is also effective against the worse excesses of discrimination. The matter is taken more seriously because it is the law, as opposed to a nice idea, to treat people equally. And by enabling some people to get the jobs they deserved (or whatever else), it provides empirical evidence as to the wisdom of equality; look what these folks have achieved when just a short time ago they wouldn't have been given a chance.

However, legislation can only ever support this process. The more entrenched a prejudice is, the longer it takes and if society is fundamentally against a thing, it cannot work at all. And anyway, equality legislation is fantastically difficult to enforce; it is the civil law so affected individuals need to litigate to have their rights upheld. And unless the defendant has been very careless, discrimination in something like recruitment is almost impossible to prove; there are lots of subtle factors that can distinguish any two promising candidates. Excuses can often be found.

Positive discrimination actively stalls this process. One cannot argue that men and women should be treated equally and then choose a woman over a man because she is a woman. Any more than you might address sexual harassment in the workplace by making sure that male subordinates have their bottoms pinched on a regular basis.

So it's unfair and contrary to all arguments for equality and that's the most important objection. But it is also very dangerous.

Victimhood is the very first refuge of the bigot. Racism in post-Imperial Britain is all about victimhood; the outsider is allegedly invading, stealing our jobs, housing and resources, corrupting our young, conspiring against us, pushing their political agenda with undue influence. White people are treated like a minority in our own country and the language of racist movements is always about preserving an imaginary way of life, protecting white people as if they were the ones who were hard done by. Of course, many white people are hard done by, so it is only a small step to blaming their misfortune on an even more disadvantaged group.

The same applies to sexism; women are taking over the universe, becoming the oppressors of men. But the example of racism is a particularly important one because we know just how dangerous that is. Victims are justified in fighting back; victims are allowed to feel resentment and let that resentment build to a point where it has to come out. We saw that kind of mutual victimhood manifest in sectarian and racial violence in the UK throughout the twentieth century with deadly consequences.

Of course, enshrining real equality in the law is bound to piss off your true bigots; people said that things were going too far the other way when women first loosened their corsets. But, in the case of positive discrimination, the bigots get to be right for once.

Positive Discrimination is extremely rare in the UK because it has not been generally legal. Men and white people can sue and do sue for sexual and racial discrimination. In politics there have been a handful of experiments with all-women short-lists for certain posts. However, the mere concept has given many people the impression that things are being weighed against those with historic privilege. See the coverage of this news story.

This matters terribly because it stalls our progress towards equality. It provides a caricature of what egalitarianism is about – one that is totally and utterly contrary to what egalitarianism is about. It delights our detractors and alienates potential allies.

Finally, on a more personal note, I find Positive Discrimination enormously defeatist. Harriet Harman said of the proposals, "There might be controversy but you don't get progress if there isn't a bit of a push forward."

But this isn't forward. Frankly, if I believed that women and minority groups really couldn't achieve equality by other means, I'm be inclined to think we didn't deserve it.


Anonymous said...

Yes, I find I have to agree with you.

To me, what 'positive discrimination' says is 'it is perfectly acceptable to discriminate on the basis of sex/age/ethnicity as long as you discriminate the right way'.

And I fail to see how that is any different from 'no blacks'. It's either wrong to discriminate on that basis, or it isn't.

Harriet Harman says that it's perfectly acceptable to have sexist recruitment policies (mind you, she doesn't call them that, but since it's discrimination on the basis of gender, that's what it is). I disagree...

Mary said...

I don't know about anyone else, but it would make my toes absolutely curl if I thought for one moment that I might have got my job because I was the female candidate, or the disabled candidate, etc, rather than because of my skills, my good interview prep, my positive attitude and my suitability for the role.

Elizabeth McClung said...

I actually am for enshrining rights in such a way that there is true equality. In the UK, much of this is done with the way anyone can take an employeer to the employment tribunal - while this IS actually a form of affirmative action, what is means is that unlike say Canada, you can't GET a letter saying, "We don't women in this position" becuase the shortlist has to be seen to open and equal, and any action other than that is an easy win in employment tribunal. It also allows minority groups which are often fired FOR being that minority to keep thier job (MANY gays and lesbians were finally able to come out when a few years ago sexual orientation was added to protected classes under the employment tribunal and employment equity rulings).

That being said, for example, a study of higher education jobs beyond that of lecturer stated that the "old boy" system was SO entrenched that they did not anticipate change in this generation OR the next.

I believe in affirmative action simply becuase IT IS NOT A LEVEL PLAYING FIELD. If you are from an estate and you come to apply for an intership job against a bunch of people who did volunteer work in thier parents (or friends of their parents) organizations, then BY MERIT, the person from the estate will always lose. While other students are out padding CV's during uni with jobs, with internships and volunteeer work, the disabled student is spending much of the time trying to get the uni to keep up to the end of accomodation they agreed to. So, who has a better CV at the end? And thus, according to what I read here, who should get the job, well not the person with the disability.

Sometimes unless a generation like the USA is FORCED for 25 years to learn to accomodate whether they like it or not, the idea of accomadation doesn't occur.

Affirmative action is the legislative equivilant to privilage and the old boy network for those who don't have it. For those who have been job hunting, you quickly learn it is WHO you know, or rather WHO knows you than how qualified you are. At my univeristy, the people were approached, contracts signed for lecturing before the legal requirement of advertising was finally done (in the back section of a welsh only language newpaper) - that was according to the RAE the top 5th university in Britian - was that playing "cricket" or was that how things are done. While a Deaf student was ON a science committee, the AB proffessor tabled and passed a resolution that no disabled students would be admitted into sciences as they were not "mentally equipped to deal with the discipline" (this would not be ever told to the students or advertised, they rejects would just occur).

If you are waiting around for old male farts in positions of power to stop being old male farts in positions of power becuase they FEEL like being fair....well, you are far more optimistic than I.

Anonymous said...

Elizabeth - I accept that in many situations it is not a level playing field, but that does not just apply to disability/gender etc.

For example, similar to your described 'estate' situation, a student from a wealthy background is likely to be better off than one from a poorer background. If we are to use affirmative action in this way, then it's not fair unless we also use it against the rich...

But even then I don't think it's fair. Admittedly I'm white, male, middle-class, not-disabled and straight, but to be told a candidate has been chosen ahead of you simply because they are gay/ disabled/ from a minority ethnic background is still racism/sexism etc - just at my expense. Just as it would be unfair for me to be chosen over an equal/better candidate from a richer background, simply because he/she would have had an easier time of it...

And then you have to ask, which scores more? Would you appoint a disabled white woman, or a non-disabled, gay, black man from a wealthy background? Which brings more 'positive discrimination points'?

Instead of positive discrimination, we need to find a different way in which to provide equality of opportunity, so that people have the same opportunity to develop their skills, attend interviews and the like regardless of their background.

Once they have got to that interview, the decision should then be based on who is the best candidate for the job - and nothing else.

...having said that, you're perfectly entitled to disagree!

Elizabeth McClung said...

I understand the frustration that it is portrayed that people would get jobs "at your expense" - but what if it was the other way, would you feel happy GETTING a job knowing that the only reason you got the interview was because you had a white name (MIT study found that for applicates with 'white names' it was 1 interview per 10 applications; while applicatations with 'black' names (like Jamal) it was 1 in 15). That is only the start, if you can get a group together that will decide the best candidate on interview and merit instead of thier impressions, their assumptions, how thier stomach is feeling at that moment - you have found the perfect hiring board and should rent them out.

It is admittedly much easier to regulate discimination once a person has a job (and the vast amount of employment lawsuits should indicate that plenty of that occurs). So I just don't have another answer.

It is admitted by interviewer that 90% of them would choose a thin applicant over a fat one of equal qualifications just based on thier bias of fat people (must be lazy, etc). (Guardian 2006)

No one is questioning there is bias in getting to interviews or bias in interviews - I guess my question then is, if we know that, and we DON'T want to do positive discrimination or affirmative action, then what do we do, just let bias continue. Or will the thin, tall people with connections now step down from thier jobs from the realizations that they may NOT have gotten it completely on merit?

I am not being sarcastic, as hard as that may seem, I just don't see another way; and that's not even touching the nature of 'headhunting' - my question has always been HOW DID Stephen Hawkins get his job? Becuase so far, not a single agency or store I've asked wants him to work for them.

But as you say, we can agree to disagree as I am no "Captain of Industry" and not in a position to change things. I just wish they WOULD.

The Goldfish said...

Thanks everyone,

Mary - this is something that occurs to me also.

Elizabeth - I'm all for forcing people to accept and adjust for women and minority groups in the workplace. And you're right that single pieces of legislation have made a profound difference to the personal lives of both queer and disabled people who are no longer afraid of identifying themselves.

But there is a difference between legislation which seeks to level the playing field and legislation which actually disadvantages people. Okay, so if you tick all the boxes of privilege, true equality does mean taking away a previously held advantage, but it is not the same as saying, as I read in one newspaper "White men need not apply."

It is rather like the difference between protecting and promoting the interests of an endangered species of bird and actively culling its predators. If that makes sense.

However, you are right about the depth of inequality that exists and how little that is understood; next post on privilege planned is called the Myth of Meritocracy.

Jack - the hierarchy of identities is an issue you're right to raise. Can you even imagine anyone suggesting discrimination in favour of queer or disabled people? It would still be wrong, but still..

Elizabeth McClung said...

Oh sorry, yes, I agree, it should be used to compensate for economic status, particularly when the most intellegent and driven person in an estate, taking the bus out to do internships and such can still only come up to level of an average privilaged person whose school GETS them internships and the like. So while they are not the best PERSON for the job, they will have the best CV.

But I also never proposed to be a capitalist since I am pretty sure that Wealth of Nations indicates (in fact I have the page marked) states that people like me, and the other 'excess' like disabled, poor, etc, should merely be starved to death until a shortage of labour occurs.

Anonymous said...

One option, to counter inherent bias in things like job application, is to remove all of the personal details (name, gender, disability, age, ethnicity) from the part of the application form which goes to decide the shortlist.

That way, the interviews are drawn up without any bias here (because you're preventing those shortlisting from being able to be subconsciously influenced by not giving them the information).

This policy is widespread (and as far as I can tell, standard) in Local Government in the UK.

It's not perfect, because as you say, those who have had an easier time of it (thanks to social groupings, money etc) will have had a better chance to improve their CV but it's a start - and let's remember you can get disabled people and ethnic minorities from very rich backgrounds too -- why should someone be biased in favour of them instead of me?

But equally companies should be forced to have policies that say how they are seeking to reduce any ethnicity/ gender/ disability gaps that exist between the proportions in their local area and those represented in their workforce.

It's good to have the debate though!

The Goldfish said...

Personally I think the problem lies a long time before any recruitment process, but I'll try and gather my thoughts about that after the weekend.

IrrationalPoint said...

It's always been my impression that there are a lot of myths about affirmative action. In actual practice, affirmative action does NOT mean that a fictional Sally got her job only because she was the only woman applicant for a computing job, nor does it even mean that Sally gets a significant advantage over other applicants. It's often seen that way though. What affirmative action does mean though, is that when you have two equally qualified candidates, it is acceptable to consider whether one of them has had to work harder to acheive the same qualifications because sie was less privileged. So suppose you have two candidates for a university place and one is from a state school and the other is from a fee-paying school, but they have exactly the same qualifications, and in all other respects seem equally good candidates, it would be reasonable to accept the one from a state school because it is likely that they have had to work harder for their acheivements than a student who has had specialised coaching for uni from a well-funded and well-resourced private school.

Yes, it does get really hairy when you get to different forms of privilege. How do you weight up different forms of disadvantage?

"Personally I think the problem lies a long time before any recruitment process"

Absolutely true. But recruitment perpetuates the problem. And in any case, I don't see why the problem shouldn't be tackled from both ends.

Personally, I have really mixed feelings about positive discrimination laws. I think there is a place for affirmative action, but I'm deeply uncomfortable with the vast majority of affirmative action laws, and feel that there are a number of better initiatives that could be used.


Anonymous said...

NO! it is wrong to discriminate based on race, religion, gender or social status.

I have seen posts on the internet that propose increased support for parties like the BNP, because of people like Harman (Harm-men), who incite racial tension and cause social unrest with draconian legislature like the Equality Bill.

Isn't she the 'Minister for Women'? D'oh! that is extremism - i might remind everyone that the Nazis were not right wing - they were extreme left wing socialists!!!!!!! We need Labour out of Parliament ... they're the duds

Anonymous said...

Not only is positive discrimination morally indefensible (and as a white middle-class male I am more likely than most to be the victim of it), it is unbelievably patronising.

No woman, black person or disabled person I know wants to be given a job because of positive discrimination. That's just plain offensive. It says "We don't think you could get this job on your own merits".

No discrimination is fair (and that sentence is true whichever way you read it). If I'm the best candidate for a job, I should be offered that job. If someone else is the best candidate, he/she should be offered the job. The fact that black people or women or older people have historically been discriminated against doesn't mean that a 55 year old black woman has any more right to that job than I do.

Don't get me wrong - I don't have a chip on my shoulder, I've not seen any evidence of positive discrimination in action and I'm not trying to say that as a WMCM I've been hard done by. I haven't. But the thought of discrimination of any sort makes me really uncomfortable.

Elizabeth - I understand what you're saying about people from disadvantaged backgrounds not getting a fair deal. That's a slightly different scenario to not giving the job to a woman or a member of an ethnic minority, in that there may be a real reason why that person is less suited to doing the job. I guess it depends how forward-thinking the employer is. If they can look at someone who's been dragged up the hard way and see the potential in that person, they might realise that, in the long run, they could be a much better prospect than the university graduate.

The issue here is similar to that of employing disabled people. There are plenty of jobs that disabled people can do but where they need adaptations to be made - whatever those adaptations are. Sometimes they can be very cheap and easy to implement, but other times they can be expensive and/or disruptive. In those cases, it can be difficult to justify the high cost of employing the disabled person if there is someone else who could do the job almost as well and at a lower overall cost.

I'm not saying it's right, absolutely not, but I can see why employers would discriminate against people with certain disabilities.

Anonymous said...

But even then I don't think it's fair. Admittedly I'm white, male, middle-class, not-disabled and straight...ROTFLMAO! QED, eh?

IrrationalPoint said...

"and as a white middle-class male I am more likely than most to be the victim of it"

No, you aren't. No one is being compelled to discriminate positively. Being privileged, you are very unlikely to be discriminated against at the moment, and there's no reason why people would positively discriminate *against* qualified people. So you're unlikely to suffer from such a measure unless you are genuinely not the best applicant for a given position. In which case not giving you the job is not actually discrimination.

"No woman, black person or disabled person I know wants to be given a job because of positive discrimination."

And nobody ever will be. That's absurd. People are given jobs because they are perceived to be the best applicant. Sometimes, however, people are incorrectly perceived as the best applicant because of the bias of the decision-maker or the institution. But no one would knowingly appoint someone they thought would make a bad employee in perference to someone they thought would be competent -- that's totally illogical. Why would one deliberatly hire incompetent people?

The point of positive descrimination is not to hire unqualified people just because they happen to tick the right demographic boxes. The point is to make it ok for employers to take into account the amount of effort involved in getting the qualifications in the first place. It means that if you have two applicants who are equally qualified, you are allowed to pick the one who is not privileged *because* they are not privileged and therefore probably had to work harder to get to the same point as the privileged applicant.

"Sometimes they can be very cheap and easy to implement, but other times they can be expensive and/or disruptive. In those cases, it can be difficult to justify the high cost of employing the disabled person if there is someone else who could do the job almost as well and at a lower overall cost."

Under disability discrimination legislation, cost is taken into account in the definition of "reasonable accommodation". So this comment doesn't apply.

The problems with positive discrimination are really more subtle than that. There's questions like: who's the disadvantaged group in a primary school, where 80% of teachers are women, but only 50% of headteachers are women? Who's more disadvantaged: working-class people, or black people? Should you be comparing candidates to other candidates, or to the average performance of people from a similar background (eg, should you be comparing university applicants to other applicants, or to the average performance on exams at the school that the student is from?) Is it positive discrimination when you hire someone because they have good skills that are not on-paper qualifications, but poor on-paper qualifications, or is that just discrimination?


Anonymous said...

Well said, I wish I could say it as well as you I have tried and failed.

Amaranth13 said...

If I had the choice between a job based on positive discrimination or no job and not being able to make ends meet, as a PWD I'd choose the positive discrimination in a heartbeat. As long as the legal structure does not allow me to provide for myself without a job (or years of fighting for disability) positive discrimination is a necessary evil. Without it I don't think I'd have much of a chance for a job, people see a visible disability and I see them almost immediately tune out.