Aim: What are the advantages and disadvantages of positive discrimination in relation to employment law?
Introduction: definition of Positive discrimination
Theories surrounding positive discrimination
Sandra Fredman: the deliberate use of race or gender conscious criteria for the specific purpose of benefiting a group which has been previously been disadvantaged or excluded on grounds of race or gender.
Gweneth Pitt: Allowing preferential treatment of one group at the expense of another.
In some cases, this means preferential treatment for a candidate who may be equally or less qualified than others.
In this presentation going discuss fairness behind Positive discrimination by looking at British statute & common law & contrasting it to EU law & the ECJ's opinion & changing stance of Positive discrimination through its leg & case law.
Under UK law Positive discrimination is unlawful but for two exceptions - will examine under what leg it is unlawful & what the pros & cons to it are.
It is unlawful since Positive discrimination discriminates in favour one group e.g. women, which inevitably discriminates against another group, e.g. men who are equally protected under leg. - Symmetrical outlook
With this in mind, Imp to note Positive discrimination not exist with disabled candidates as no law against non-disabled persons.
In order to give u clear understanding of Positive discrimination, explain it through a time-line, which will show how, got to legal position at today.
Before I take you through the time-line of the law, it is important to explain the theoretical stances of Positive discrimination, and how when looked at from 3 different viewpoints, it can be seen to unlawful as well as lawful.
Sandra Fredman has put these arguments very succinctly in her book on discrimination law. The first viewpoint looked at in the book is formal equality. This means that positive discrimination is unlawful because it differs from the formal concept of equality, which is a very symmetrical viewpoint & one mainly followed in the UK.
Fredman goes on to explain that there are 3 characteristics of formal equality which makes positive discrimination illegitimate.
FE looks at equality as a universal concept that cannot vary to reflect different patterns in society, & therefore equality always being symmetrical gives equality evenly to everyone, regardless of whether they are or are not from a disadvantaged group.
This formal equality is individualistic in form. i.e. there are no groups of sex or race, but only individuals who should be judged based on their merits alone, which then makes Positive discrimination contradictory as it looks at disadvantaged groups not individuals.