Tackling gender discrimination in employment relations through positive action

The full-scale war continues , and so does the suffering of the Ukrainian nation, which is impossible to measure. The war had a tremendously negative impact on the country's economy, and at the same time exposed  its vulnerabilities and crystallised the issues that at other times could have remained unnoticed or not as painful. This, inter alia, also includes the sphere of employment, where gender-based discrimination remains one of the problems. It only has  become even more pressing at the present time: during the full-scale war, the global financial crisis and the  COVID-19 pandemic.

Gender equality is an element of overall equality and one of the pillars of fair and democratic society. Inequality between women and men stems from the differences in assigned gender roles and is caused by the existence of gender stereotypes. This is why neutral legal principles and guarantees  which grant equal opportunities to men and women are not necessarily enough to change the inequality that exists in the society. In this context, one may come across the term positive discrimination and the related concept of positive action. How can discrimination be positive and how does it relate to positive action? 

To answer these questions, let us refer to the definitions of these terms. Under the International Labour Organisation Discrimination (Employment and Occupation) Convention, 1958, discrimination includes “any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”.

Positive discrimination is a type of discrimination where preferences and privileges are provided to groups having a “disadvantaged” background, e.g. as a result of social or historical circumstances. The factor of gender could serve as an example. Positive action has a common basis with positive discrimination. Likewise the latter, positive action aims to remove the existing inequality in the society. However, positive discrimination does not meet the principles of equality and non-discrimination by providing unconditional privileges to certain groups. As such, positive discrimination goes beyond positive action.

Positive action, in its turn, involves taking limited particular steps allowing to provide preferential treatment to certain groups. As a general rule, such actions must be proportionate in relation to the problem they address. Positive action aims not as much at restoring the already violated rights of certain groups, as at balancing an opportunity to enjoy rights and freedoms that these individuals were previously deprived of due to certain shared characteristics (such as sex, age, ethnicity). In employment relations, positive action generally comprises measures intended to enhance the underrepresented groups’ access to the labour market, education, professional training, etc.

The first example of taking positive action, or its historic analogy, can be traced back to Europe and North America after the First and the Second World Wars, when employment quotas were granted to veterans and people with disabilities due to a great number of people with severe injuries. Subsequently positive action was implemented in the US in the 1960-70s. In particular, in 1961, President John F. Kennedy compelled government contractors to “take affirmative action” to employ candidates and treat workers in the workplace regardless of their race, religion, colour or ethnicity. The “affirmative action” aimed to contribute to eliminating the race-based discrimination existing at the time despite the “passive” equality principles granted by the Constitution and law.

The concept of positive action is also enshrined in Ukrainian law. The baseline in this regard is Article 24 of the Constitution, which provides guarantees for the equal constitutional rights, freedoms, and equality before the law. Gender equality is also reflected in a number of legal acts, including the Labour Code of Ukraine. In addition, there are specialised laws, namely, the Laws of Ukraine “On the Grounds of Preventing and Counteracting Discrimination in Ukraine” and “On Ensuring Equal Rights and Opportunities for Women and Men”.

Both above-mentioned laws provide for an identical  definition of positive action, namely:  “special temporary measures with a legitimate and objectively reasonable purpose to eliminate legal or practical inequality in opportunities available to an individual and/or a group to exercise on an equal basis rights and freedoms granted by the Constitution and laws of Ukraine”.

Under Article 6 of the Law of Ukraine “On Ensuring Equal Rights and Opportunities for Women and Men”, gender-based discrimination is expressly prohibited. At the same time, the law clarifies that positive action, among other measures, does not represent gender-based discrimination. Under Article 17 of the said law, “women and men shall be granted equal rights and opportunities in employment, promotion, professional upskilling and retraining”. Employers, in their turn, may take “positive action aiming to achieve a balanced ratio of women and men”. 

In August 2022, the Cabinet of Ministers of Ukraine approved the State Strategy for Ensuring Equal Rights and Opportunities for Women and Men until 2030. The key objective of the strategy is reducing the actual inequality between women and men and ensuring implementation of international and EU equality standards. The concept of positive action is referred to in several objectives of the strategy. In particular, positive action is expected to be taken in management decision making and to grant equal access to education and professional training to women and men.

Referring to international experience, positive action is a generally accepted element of anti-discrimination law widely used in many countries worldwide, in particular, in Europe and the US. For example, in the UK, this area is regulated by the Equality Act 2010, which serves as a basic legal tool to provide protection from and counteract discrimination, inter alia, in the workplace.

The Equality Act identifies nine protected characteristics, covering among others, the individual's gender. Under the act, employers may take positive action if they reasonably think that a group of people who share a protected characteristic is underrepresented compared to other employees, or suffers a disadvantage.

Positive action under the Equality Act comprises the following:

1. positive action: general (such as mentoring schemes, awareness and advertising campaigns targeting the groups underrepresented in a specific occupation); and

2. positive action: recruitment and promotion. 

It is important that employers should not give preferential treatment to candidates with a protected characteristic on a permanent basis. An employer can take recourse to positive action during recruitment or promotion of an employee only in a tie-break situation, when candidates/employees are of equal merit in terms of skills, qualifications, and experience.

The analysis of other countries’ experience also shows that implementation of positive action to tackle discrimination should be accompanied by increasing awareness of this concept. How effective positive action policies are in practice depends on how well the general public understands the purpose and reasoning for such measures. Positive action is often subject to critique and misunderstanding. It is sometimes seen as unfair special treatment of certain groups, twisting the normal societal rules. Positive action measures may be likened to positive “reverse” discrimination. Therefore, effective implementation of positive action requires not only ensuring that the legal regulation is in place, but also holding the respective supporting awareness campaign .

The effective Ukrainian law provides for a positive action concept and theoretically enables it to be taken both on governmental and non-governmental levels. That said, positive action is hardly ever used in practice, remaining mostly a declarative provision. Addressing this issue has become increasingly relevant. As the war in our country continues, our victory is an unconditional priority. To this end, the economy of Ukraine must continue functioning and the employment market should  demonstrate strong performance. It is important to ensure that fair conditions are available to all employees regardless of their sex and role in society. Simply guaranteeing equal treatment in the Constitution and laws is not enough. Positive action is one of the available solutions. To ensure its effective implementation, the following needs to be considered:

Legislative changes

The law should ensure substantive regulation of positive action, in particular, by providing a clear framework for its application, drawing an explicit line between positive action and illegal positive discrimination, as well as clear boundaries of discretion granted to employers and other parties when applying it.

Awareness

For positive action to have the intended effect in practice, it is paramount to ensure  that sufficient awareness support is available both on national  and local levels, including at the level of individual employers.

Flexibility

The effect from positive action is determined by how much it addresses the needs of a specific society. There is no one-size-fits-all formula for the successful development and implementation of positive action. This is why, along with the detailed regulation of positive action, it is important to enable flexibility in its application approaches, and opportunities available to employers taking into account the relevant local context.