Positive Discrimination: Robbing Peter to Pay Paul

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The term discrimination is often associated with negativity. Negative discrimination involves treating one group of people less favourably than another group. The main causes of negative discrimination are many and they include race, gender, colour, religion, and sexual orientation. The victims of discrimination are always the minority groups in society while the perpetrators are often the majority groups. However, discrimination can also be described in terms of its positivity. Discrimination is said to be positive if it is used to readdress the imbalance in society caused by negative discrimination.

The importance of positive discrimination is recognised almost universally. Article 2.2 of the International Convention on the Elimination of All Forms of Racial Discrimination, for example, urges signatories or member states to legislate for positive discrimination. The laws of most of the countries around the world including the United States, Canada, India, China, Israel, Malaysia, Brazil, France, Finland, and Germany provide for one form of positive discrimination or another. Unlike these countries, the law of the United Kingdom (Equality Act 2010) does not provide for positive discrimination. However, it provides for positive action. What is the difference between positive discrimination and positive action?

The main difference between positive discrimination and positive action is the way in which favour is rendered to the under-represented groups in society. Under positive discrimination, a candidate from the under represented group can be preferred for a job over another candidate from overrepresented group even though the candidate from the under-represented group is less qualified than the candidate from the overrepresented group. In contrast, under positive action a candidate from the perceived under represented group is preferred over a candidate from the overrepresented group only if the candidate from the under-represented group has the same skill set as the candidate from the overrepresented group. Despite this difference between them, the aim of both positive discrimination and positive action is to address the perceived injustice against discriminated groups of people within society.

This view that positive discrimination is good for society has been rejected by critics. According to these critics, positive discrimination is as bad as negative discrimination. It tends to stop negative discrimination against the minority groups but tends to start negative discrimination against the majority groups. For critics, negative discrimination should never be encouraged in society irrespective of the person at the receiving end.

Instead of calling for positive discrimination to fight negative discrimination, critics of positive discrimination have argued for meritocracy. Meritocracy refers to the treatment of people on the basis of merit rather than on the basis of other factors such as race, religion, ethnicity, or gender. Under meritocracy, people will be offered a job because they merit it and not because they are from the group that is under-represented. However, the difficulty with this viewpoint is what constitutes the term merit? Merit is a subjective term which means “the quality of being particularly good or worthy”. This element of subjectivity in the term “merit” indicates that different people are likely to interpret the term merit differently. As a result, some people will always be at the receiving end of negative discrimination.

Therefore, neither positive discrimination nor meritocracy can help eliminate negative discrimination. The only possible conclusion to draw from this is that people will always find themselves at either the negative or positive side of discrimination.

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