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The dark side of diversity: "positive discrimination" (reverse discrimination)

kat · 1 · 12025

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Offline kat

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One of the inherent problems addressing 'diversity and inclusion' in the games industry is the way "Positive Action" laws, in place ostensibly to protect employees and encourage better representation, are interpreted by some individuals and institutions as allowing what amounts to "positive discrimination" (also called "reverse discrimination")[1], a concern largely tolerated should it be acknowledged, or as is more often the case, simply overlooked or ignored as an inconvenience to the few that engage in it because discriminating against individuals perceived to be privileged or advantaged above others is an acceptable, even necessary, 'evil' in pursuit of their greater good.

Except its not. And doing it could land them in trouble just as readily as anyone else.

In the UK "positive action" is defined by a number of laws[2] and public policies that essentially allow hiring and employment practices based on gender, or other "protected characteristic", only so much as doing so is not at the expense of someone more capable; for example hiring a woman over a man where both are equally capable because the former is under-represented, but not if the latter is better suited (or vice versa). The laws and policies also provide individuals systemic coverage to the extent that, should an person find themselves subject to discrimination[3], high-level remedial action is available, ostensibly at the pleasure of Her Majesty's Courts & Tribunal Services[4], to pursue claims through arbitration, mediation, tribunal[5] and/or legal action.

In practice the attributes and advantages afforded by "positive action" when applied with equal fairness, should be agnostic; a male applicant to a 'feminist' game studio should be just as likely a subject of discrimination as a woman applying to a 'bro/MRA' studio, if either applicant feels they are being disadvantaged in some way a claim can be made. So whilst positive action can be used to good effect, allowances are limited; individuals and institutions perceived to be at a disadvantage cannot use this fact (being disadvantaged) to then engage in 'positive' or 'reverse' discrimination any more than would be expected from persons or organisations without (not disadvantaged).

Additional Resources
Links above and below do not represent endorsement. They are provided for informational purposes by way of example to highlight dedicated  organisations and institutions exist to support employees through the discrimination or dispute process.

- Official list and schedule of trade unions (UK).
- ACAS - Raising an issue at work (UK).
- ACAS - Disputes and conflict in the workplace (UK).
- List of UK police forces (UK).

Recruiting or Hiring?
- Equality Act 2010: What do I need to know? A quick start guide to using Positive Action in recruitment and promotion.

[1] Positive Discrimination: any act that intentionally grants an advantage to individuals or groups afforded special status or protections over those without. "Positive Action" is the UK equivalence/approximation of "Affirmative Action" in the USA. All forms of discrimination are fundamentally about disadvantaging an individual or group over another regardless of the 'positive' or 'negative' justifications for a given action either way. Poorly implemented, "Positive Discrimination" could also be considered a "two wrongs make a right" fallacy.
- Discrimination: your rights (UK).
- Report hate crime (UK).
- Types of discrimination (UK).
- Discrimination at work (UK).
- Discrimination at work: what you can do (UK).

[2] Equality Act 2010: What do I need to know? A quick guide start guide to using Positive Action in recruitment and promotion [pg.4]
"The new positive action provisions mean that it is not unlawful to recruit or promote a candidate who is of equal merit to another candidate, if the employer reasonably thinks the candidate:
• has a protected characteristic that is under-represented in the workforce; or
• that people with that characteristic suffer a disadvantage connected to that characteristic.
However, positive action does not allow an employer to appoint a less suitable candidate just because that candidate has a protected characteristic that is under-represented or disadvantaged.

[3] Types of discrimination: age; being or becoming a transsexual person; being married or in a civil partnership; being pregnant or having a child; disability; race including colour, nationality, ethnic or national origin; religion, belief or lack of religion/belief; ****; **** orientation. Protected characteristics.

[4] Employment disputes and arbitration is ostensibly processed though HMCTS (Her Majesty's Courts & Tribunal Services), an Official body set up to receive and dispose of such claims. Their numbers reveal there are no shortages of individuals pursuing actions against errant employers for one or more reasons; women issuing claims relating to gender, BAME (Black, Asian, and Minority Ethnic.) making claims based on race or ethnicity and so on.

[5] Search for "discrimination at work lawyers/legal/solicitors". Union representation is also available through ACAS (Advisory, Conciliation and Arbitration Service) and similar organisations, Citizens Advice and so on.