For every indication that workplace equality between the sexes is getting closer, there seems to be another that the glass ceiling is still very much in place in all walks of working life. In the same week that France’s Finance Minister, Christine Lagarde, became the first woman to be appointed Head of the International Monetary Fund, multiple tennis champion Serena Williams suggested that Wimbledon operated a bias towards men in the allocation of matches on the top courts.
It was recently reported that Michel Barnier, Europe’s Internal Markets Commissioner, would like to impose mandatory quotas dictating that membership of the managements boards of banks should be at least a third female. However, if UK companies were to introduce such quotas at present they would certainly fall foul of discrimination laws. So, if employers wish to increase the representation of women, even to positively discriminate, how can they best go about this without discriminating against men?
The Equality Act 2010 introduced new rules dealing with positive discrimination, which apply where certain groups are under-represented in the workforce. Since April 2011, employers have been able to take positive action in recruitment and promotion. Where there are two applicants for a role or promotion who are of equal merit or are equally qualified – this is sadly undefined – the employer is entitled (but not obliged) to choose the person from the under-represented group for the role.
Of course, it very is unlikely that an employer will ever have two candidates between whom it has no preference at all, especially at senior levels where the inequalities are said to be greatest. Therefore selecting on the basis of sex (or race, religion, etc.) will almost always carry a risk that the person not selected claims discrimination even if he comes from an over-represented group and even if the selection of the other was with the best possible motives. The new rules do not permit you to boost your diversity statistics by recruiting a minority candidate (whether by virtue of his race, age, religion, etc.) whom you do not believe to be the best person for the job.
So, be clear on your reasoning before you make your decision – am I recruiting this woman because she is equally as qualified as the man but women are under-represented or because she is actually the better candidate? The two positions are totally incompatible, so no jumping from one horse to the other mid-claim is possible.
At present, the steps UK employers can safely take are therefore limited and unlikely to make a significant difference. It may be that, above all, it is a cultural change that is needed. It is hoped that Lagarde’s appointment is evidence that such a change is taking place (albeit slowly). As sage of our times, Lady Gaga, said: “Some women choose to follow men, and some women choose to follow their dreams. If you’re wondering which way to go, remember that your career will never wake up and tell you that it doesn’t love you anymore.” If only it were true.