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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.

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    I'm neither from the UK nor particularly familiar with legal questions, but I would note that you seem to be jumping from setting a goal ("achieving a certain percentage of women") to an assumption about which measures will be taken to achieve this goal ("hiring candidates based on gender rather than qualification"). I doubt whether this conclusion is valid. Feb 10, 2023 at 10:44
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    How do you know if the amount of women as speakers right now is equal to the average in the field? Because if is not, the status quo perpetuates that some better, female speaker are not invited
    – Sursula
    Feb 10, 2023 at 11:07
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    @curious: Does it push the hiring committees to break the law, though? One of the conditions you mention in order for a hiring to be a illegal is "when they are not the most suitable candidate". Now for many positions the idea that there were a single most suitbale candidate (which could even be determined in an objective way) is unrealistic. So if one has several candidates who would all be extremely well-suited for the position, it all comes down to a judgement call - it's unclear to me whether taking gender into account in such a judgement call would violate the law that you refer to. Feb 10, 2023 at 11:18
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    Interesting you assume this may be a case of positive discrimination. 'Targeting women' could simply be a case of, for example, redressing currently existing positive discrimination towards male candidates or negative discrimination against women - let's say, not hiring people who are likely to become pregnant. Therefore, I am not sure this question is answerable without more details.
    – user438383
    Feb 10, 2023 at 11:22
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    This doesn't belong on Academia.SE. Check out law.se.
    – user137975
    Feb 10, 2023 at 16:25

5 Answers 5

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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.

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Academia Meta, or in Academia Chat. Comments continuing discussion may be removed.
    – Bryan Krause
    Feb 13, 2023 at 15:44
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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.

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    Having read the linked regulation, I am not so sure that the second part of this answer is correct. In particular, 159(4)(b) seems to say that you can't have a general policy of taking these types of action. But I find this sort of legalese very hard to understand, so I may well be wrong... Feb 10, 2023 at 13:30
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    @EspeciallyLime It is an ambiguous condition - as I understand it, the University cannot have a blanket policy to always hire from disadvantaged groups in the event of a tie, but the hiring panel has the option to use it as a tie-breaker at their discretion. See, e.g. this policy from UCL which lays out the application of tie-breaking from point 24. The point at which a 'target to recruit minorities' becomes a 'policy to recruit minorities' is, of course, left as an exercise to the reader. Feb 10, 2023 at 14:52
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    The only thing I'd add to this is that I think its fairly common that its difficult to separate two candidates on purely objective criteria. Feb 10, 2023 at 16:16
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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.

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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.

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    While I generally agree with your answer, why not add that men who take PATERNITY leave may profit as well? It is (and shouldn't be) not only women who take care of the newborn.
    – Sursula
    Feb 10, 2023 at 12:16
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    @Sursula You are correct, however, in the UK (for example) women can take upto 12 month of maternity leave, while men can take 2 weeks of paternity leave. The different impact on career is perfectly clear Feb 10, 2023 at 13:04
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    @Sursula unfortunately it is not so easy for an early-career academic (in the UK, at least, which is where the question is asking about) to take extended paternity leave, because frequent changes of employer make it difficult to be eligible. Feb 10, 2023 at 13:08
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    @DmitrySavostyanov Mothers may take six weeks of maternity leave, and fathers may take two weeks paternity leave. The rest of the leave can be shared in any way the parents wish, nowadays. The law changed a few years ago. (Source: father of three young children.) Feb 10, 2023 at 14:35
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    @DavidA.Craven We tried to do it and found the University HR departments are totally unprepared to the change in law. My wife and I work in different Universities, and HRs had no clue how to communicate between each other that our leave is shared. YMMV of course. Feb 10, 2023 at 14:50
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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).

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  • So legally it would be fine to spend more on additional advertizing to specifically target high-achieving female candidates, one of whom would then be expected to outcompete any male candidates for the L'Oréal WISE Fellowship ? All well and good unless (1) all serious male and numerous high-grade female candidates do not enter the contest; and (2) if a comprehensively superior male candidate applies and lets it be known that he will challenge any decision that awards the Fellowship to any 'inferior' candidate . . . I am not sure if in practice that gender exclusive jobs are the best solution.
    – Trunk
    Feb 13, 2023 at 15:16

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