The issue of all-women-shortlists (AWS) highlights both the difficulty and importance of differentiating between Positive discrimination and Positive Action.
Positive discrimination is ‘generally illegal’ in the UK under the 2010 Equality Act. This means that, despite what some may believe, organizations and employers are prohibited from doing things like filling quotas and giving candidates preferential treatment based on ‘protected characteristics’ like being a woman, being from an ethnic minority or being disabled (amongst other cards) regardless of their ability to do the job.
Yet more surprisingly, positive discrimination is being increasingly condemned even by progressive public opinion for being a superficial, belated moral initiative to redress the wrongs of the past.
Positive Action, on the other hand enjoys the commendation of both legality and rectitude and is generally seen as a valiant initiative to make organizations more representative of society.
The key difference is that Positive Action permits discrimination against a candidate who is already well represented in an organization only in the case that a candidate with a protected characteristic is equally as qualified. Therefore, in theory, Positive Action allows employers to tread the line between merit-based selection and acknowledgement of the ways in which certain groups may have been held back- the best of both worlds, if you will. And is it so insidious for employers to want to broaden their economic bases, to want to capitalise on a diverse workforce or for government to want their country to reach its full potential? So argue the advocates for All-Women Shortlists- formally categorised as a Positive Action practice, these shortlists are intended to increase the number of female MP from 32%, by allowing only women to stand in particular constituencies.
Here is where the line begins to blur: the greatest virtue of Positive Action practices lies in its non-compulsory, less systematised, discretionary approach; focusing on bolstering equal opportunity at a more effective, grass-roots level as opposed to trying to equalise outcomes further up the cursus honorum in the way that Positive Discrimination does. But certain features of All-Women shortlists make it much more reminiscent of positive discrimination especially in its rigid enforcement, uncritical codifications and surface-level engagement with inequality.
Since they were first implemented by the Labour party in 1993, and then by the Liberal democrats, All-Women Shortlists have been the subject of continuous controversy, attracting a reliable barrage of criticism from both sides of the aisle, who state either that the shortlists go too far or not far enough.
In 1995, two potential male Labour candidates who were barred from standing for election successfully challenged the policy in court where it was found that the Labour Party had broken the law and that the shortlists were illegal under the Sex Discrimination act 1975. In the same year in Slough, the local party refused to cooperate in selecting a candidate after having an AWS imposed. Many such stories of quiet concern and frustration haunt the constituencies to which these shortlists were prescribed.
Indeed, by all counts All-Women shortlists seem nothing short of a subset of gender quotas. To this date, the Conservative party remain the only party to have refrained from adopting the AWS system, save for David Cameron’s modernising attempt in 2006.
This is not to suggest that the system’s intention is to grant preferential treatment regardless of merit or that the appointed female candidates are less competent than their male counterparts. However, it is hard to deny that at least in practice, the policy seems to discriminate purely to increase the representation of Women in Parliament. And perhaps this hasty conflation of equity and equality is forgivable considering the great importance of having a parliament that represents the interests of Women in this country. Indeed, the increased number women in politics has brought greater parliamentary priority to issues such as women’s health, domestic violence and childcare. Yet even this has been offset by the risks associated with positive discrimination.
For one, candidates with protected characteristics speak of being haunted by the thought that they were token hires. The ambiguity regarding how far these practices are merit based causes the devaluation of the accomplishments of people who are chosen based on the social group to which they belong rather than the qualifications they’ve earned. Not to mention how this also entrenches an us-versus-them mentality which exacerbate tensions and increase animosity towards the preferred groups.
In America, the failure of Obama-Era Affirmative action policies promoting the admission of more African American students to Ivy league Universities is almost definitive proof of how positive discrimination policies similar to Shortlist systems fail to achieve their goals and also have undesirable side-effects for minorities. In this instance, it caused the most privileged members of that minority (Upper-middle class black students) to benefit the most, encouraging them to identify themselves as disadvantaged, whilst the primary targeted beneficiaries missed out and other minorities and non-preferred groups were actively marginalized and discriminated against. What is there to suggest that All-Women Shortlists will do much more than airlift the most privileged women in society to positions of power? Meanwhile the class divide will deepen and the underlying issue of prejudice and the material conditions which led to the disadvantage will be masked in a cloud of pleasing statistics.
The waters were further muddied when 300 Labour members resigned from the party over a decision to allow Transgender women to stand in these All-Women Shortlists. The £27,000 crowd-funded to fight the decision in court, as well as a the confused objectives outlined in this petition, perfectly highlights the trouble with treating candidates differently based on the social group to which they belong.
Propelling women and minorities to the top without adequate footing, based on anything other merit will inevitably cause them to fail. The place to solve inequality isn’t at the end.
Instead of enforcing quotas, organizations should adopt grass-root level programmes, outreach initiatives and training schemes, paid at a level that allow candidates from any economic background to participate. The current model of All-Women shortlists provide nothing more than a superficial engagement with equality and do not represent real, substantive gains for women. The same goes for All-Black shortlists.
At a purely conceptual level, they are undemocratic, bypass competitive and merit-based principles, disincentivise both preferred and non-preferred groups, undermine economic growth and discriminates against men (and every other non-preferred group).
When thinking about positive action, positive discrimination and policies targeting socio-economically disadvantaged people in general, three axioms seem to ring particularly true.
First, the road to hell is paved with good intentions; there is already a staggering amount of evidence to suggest that positive discrimination masks the real issues which lead to inequality.
Secondly, systemising a good idea tends to poison it; treating people differently in a tick-box manner, with points awarded based on gender, race, disability or sexual orientation will inevitably backfire-legally, economically and morally.
Thirdly ‘better-than-nothing’ is not the same as ‘good enough’; the concept of positive discrimination is conflict-ridden and continuously evolving but it is hard to deny that, at least in the case of All-Women Shortlists, for every benefit invoked in the name equality and opportunity, there seems to be one more deeply divisive, unfairly discriminatory drawback undermining it.
This piece first appeared in The 1828 Journal and can be accessed here