As a spin off from this question on Academia.SE, under the Equality Act of 2010 can a UK employer limit a job to only women? That question has additional aspects that are not relevant to my question. Specifically, I am interested in faculty position at a university and not edge conditions like female sports players. For comparison, in Australia there have been women-only faculty positions.
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Nitpick: From the Australia link, what is women-only is not the faculty positions but the selection process. The difference? When the women that take these positions retire, if it has been achieved a degree of parity enough so that no further affirmative action is needed, then those faculty position would be open both to men and women.– SJuan76Commented Oct 22, 2016 at 17:53
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@SJuan76 to someone not familiar with the intricacies of affirmative action law, I don't understand the difference. Seems surprising that it would be okay to say we are going to give the job to the white man now but when he retires we promise we will give it to a minority.– StrongBadCommented Oct 22, 2016 at 19:46
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The difference is that there is no claim that the characteristics of the published job make it fit only for women (as in "only women are good at teaching integral calculus"). It just happens that they want to increase femenine proportion and the next job offer they have is that one.– SJuan76Commented Oct 22, 2016 at 20:18
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1 Answer
Generally speaking, no: Sex is a protected characteristic and discriminating between applicants based on a protected characteristic is prohibited so an employer is not free to hire only men or women simply because they would prefer to. But there are exceptions, like “occupational requirements” (which is probably what your athlete example is getting at).
And, looking at the example you provided, it might - with a caveat - fall under an exception called “positive action”, as provided in section 158 and 159 of the Equality Act. However, the conditions under which this is allowed are tightly regulated and it would come down to the specifics (e.g. whether the number of women in that activity is “disproportionately low”).
The caveat is that the Equality Act specifies that the protected characteristic (i.e. sex/gender in this case) can only be taken into account when choosing between two equally qualified candidates. I don't know whether this was ever tested in court but this would probably preclude advertising a position as “women-only” (as opposed to soliciting applications from both men and women and then selecting a woman with the explicit goal of increasing the number of women in your department).
The Government Equalities Office guide on positive action also contains language strongly suggesting that limiting the search to women from the get go might not pass muster:
Positive action can be used at any time in the recruitment or promotion process.
[…]
However, it is expected that, in the vast majority of cases, any use of positive action as a ‘tie-breaker’ between candidates who are of equal merit for a particular post will be at the end of the recruitment process, at the actual point of appointment.
[…]
In order to use positive action provisions in a tie-breaker situation, the employer must first establish that the candidates are of equal merit.
Note that there is no such “equally qualified” clause in section 158, which deals with everything else than recruitment and promotion. Thus, it is perfectly fine to create a training programme that would be only open to women, if the goal is to increase the proportion of women in an activity where it is disproportionately low (an example provided by the same guide is a development programme “to help female staff compete for management positions”).
Incidentally, all this is allowed under EU law (articles 5 and 7 of Directive 2000/78/EC).
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1Also mirrored in article 23, Charter of Fundamental Rights of the EU : The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex.– MSaltersCommented Oct 24, 2016 at 22:38
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I have read the directive you have linked in your last line: article 5 speaks about "persons with disabilities" only, and article 7 about "compensat[ing] for disadvantages linked to any of the grounds referred to in Article 1", which includes sexual orientation but not gender. So, if I am reading it correctly, that directive does not apply to positive action in favor of one gender. Commented Dec 15, 2017 at 21:18
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@FedericoPoloni That's true, my point was that positive action and the general architecture of the Equality Act are in line with the relevant directive. It's true that the directive doesn't apply to gender but that also means it's not a protected characteristic at all under this directive so I see no incompatibility between the two. Maybe that's what you meant by doesn't apply?– RelaxedCommented Jan 12, 2020 at 20:46
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I think that's what I meant, but this comment was from 2 years ago and my memory isn't that good. :) Commented Jan 12, 2020 at 20:55
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I remember an airline advertising a job for "Stewardess. Male or female. Dress code: Blouse and skirt". Today they would get applications from men :-) Commented Jul 30, 2023 at 23:20