Is it legal in the UK to aim for a certain percentage of women in a math department?

Question

Athena Swan charter is a UK organization promoting gender equality in academia, among other things. University departments apply for gold / silver / bronze Athena Swan certificates, while providing an action plan of promoting gender equality.

In STEM Departments, typical goals in an action plan may include percentage targets for:

1. female PhD students

2. women in Lecturer / Senior Lecturer position

3. female speakers in seminars

The question: is this legal in the UK to set such recruiting goals?

By the 2010 Equality Act, positive discrimination, i.e. hiring someone based on their protected characteristic, such as age, race or gender, when they are not the most suitable candidate, is illegal in the UK, see here for some examples, including a successful litigation case.

Do not goals (1), (2), (3) link directly to positive discrimination, hence form an illegal practice in the UK?

(3) is more subtle, as no actual employment is involved, but it also seems to be a more blunt case of positive discrimination, as having more female speakers than the average in the field (whatever this average is), provided that the ability is equally distributed among the genders, will most likely imply that some better, male speakers will not be invited.

Answer 1

You are making the wrong assumption here that aiming for some minimum percentage of women would involve selecting a weaker women over a stronger man.

I am involved with running a conference series in CS/Math, where the expectation is that at least a third of the invited speakers are women (the area is so overwhelmingly male that this is already a lofty standard). Whenever I was on the programme committee, this was achieved just by reminder all PC-members to not forget about nominating great female speakers. There are a few subconscious biases around in our society that make it easy to overlook women, and just taking a moment to consciously think about "Aren't there some women around who give great talks/have done some fascinating work recently?" can lead to the realization that of course, yes, there are. Not once I have witnessed a situation where people thought Bob would be the better choice, but then invited Alice because she was a woman.

Similarly, when it comes to Athena-Swan-related questions like "What can our department do to increase the percentage of women faculty?", the two top approaches I've heard people voice are: A) "Let's make sure that our department provides a welcoming work environment for women." B) "Let's make sure that highly qualified women applicants know about A)." Not once have I seen any indication of "Let's just hire some mediocre woman!" as being part of the strategy.

When it comes to hiring decisions themselves, there are a number of well-documented subconscious biases around which can lead to people assessing female applicants as weaker than they are. Attempting to avoid those is simultaneously going to work towards ensuring that appointments are as merit-based as possible, while also increasing the percentage of women.

Answer 2

There are two main factors at play here. Firstly, as suggested by some comments above, there are ways of attempting to increase the number of women in various roles, such as ensuring a supportive environment or combating the perception of some departments as a 'male-dominated' area. These do not directly impact on the hiring process itself at all.

However, even in the hiring process, there is a provision in the Equality Act which is broadly supportive of a range of types of 'positive action' to redress historic disadvantages due to protected characteristics. This includes targeted support, promotion of the role to disadvantaged groups, and, in the limit of otherwise tied applicants (which is arguably very rare), taking the protected characteristic into consideration during hiring decisions. There are a number of limitations on this, so they can't e.g. have women-only openings (officially or unofficially) but there is a range of positive actions available which are still legal to increase the representation of disadvantaged groups.

Answer 3

I think others have done a pretty good job of answer the question about 1 & 2 (although I'd note that the PhD students are not employees, and therefore don't fall under the ban on positive discrimination for employees): Its not illegal to set recruitment targets as long as your proposed means for achieving those recruitment targets don't involve privileging individual women over individual men.

However, for your third point, seminar invites, (and perhaps PhD students, I don't know), the law (Equalities Act 2010, paragraph 158(2) )explicitly allows for positive action:

This Act does not prohibit P from taking any action which is a proportionate means of achieving the aim of—
(a) enabling or encouraging persons who share the protected characteristic to overcome or minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.

Answer 4

IANAL and I am not qualified to provide a binding answer to a legal question.

However, from a purely general point of view, a University may set up a goal of reaching a certain proportion of under-represented staff. Your question seems to imply that the only way of achieving this goal is through (positive) discrimination, that is not necessarily true.

Athena Swan encourages universities to identify why certain groups are under-represented and make actions to remove barriers. These actions often end up being useful for both the under-represented group and for other candidates as well. For example, it may not be easy for women to secure a job or promotion in academia, if a job description specifies that candidates have to secure X grants in N years after their PhD.

Women are more likely to take an extended career break due to maternity leave, and therefore may find it more difficult to meet such time-restricted criteria. As an example, relaxing the criteria to take in account career breaks helps women to compete more fairly for the positions. But it also helps men who had career breaks due to the health issues or family issues etc. At the end, everyone benefits from such adjustments and no discrimination happens.

Answer 5

There's a relevant older post:

Is it lawful for a fellowship linked to a permanent faculty position at a British university in the STEM field to only be available to females?

The top answer

In the UK, there are a number of fellowships exclusively for women (e.g., L'Oréal WISE fellowship). The Equality Act of 2010 allows for positive action outside of recruitment which these fellowships likely fall under. The Equality Act of 2010, however, does not allow for positive action in recruitment (apart from giving preference for equally qualified applicants).