A company advertises positions and receives far more applications from members of one sex than from the other. The company wants to interview the same number of people from each sex. It chooses the following policy: applicants are ordered within each sex and interviewed in pairs. If they run out of applicants from one sex the remaining applicants in the other sex will not be interviewed.

Is this legal in the UK?

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    This would get really complicated if you were required to consider non-binary gender identities... In the US at least this would be an odd policy, but I'm not sure it would be illegal. – Ron Beyer Mar 5 '19 at 21:55

This is not legal

It is generally unlawful to discriminate on the basis of gender: what you propose does exactly that.

You are allowed to engage in positive action where a protected class suffers a disadvantage or their participation is disproportionately low. However, you are required to assess that the candidates are equally qualified in all other respects, only then can you take positive action - the proposed scheme excludes candidates without making such an assessment.

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    Does the U.K. not have safe harbors for affirmative action (which is basically what is suggested)? Could a court or agency allow this if a discrimination suit was brought against the company or threatened as a remedial measure? I am pretty sure that this would be allowed in Canada which has a non-discrimination requirement quite different from the U.S. one. – ohwilleke Mar 6 '19 at 5:41
  • Is there a specific law I could refer to if I were to raise the issue with the company? – Alzibub Mar 6 '19 at 11:23
  • @Alzibub The second link in the answer is to the Equality Act 2010. That would seem to be the law in question. – Paul Johnson Mar 6 '19 at 22:53
  • Thanks, I hadn't spotted that was a link! – Alzibub Mar 7 '19 at 20:12
  • I know it's been a while but I just thought I should let you know your answer has been really helpful. It was my employer who was planning to do this and I challenged it using the links you gave. As a result my employer withdrew the plan. I couldn't let such unabashed discrimination based on wholly irrelevant attributes take place. – Alzibub Apr 9 '20 at 18:20

Most anti-discrimination statutes make some allowance for "affirmative action" (though in legal terms it is often called "positive action" or "special measures"), which allows discrimination undertaken for the purpose of acheiving "substantive equality" between relevant classes of people. The rules for "positive action" in recruitment in the UK are set out in section 159 of the Equality Act 2010. That section provides as follows (here P would be the employer, A would be a person of the sex group they are favouring, and B would be a person of the sex group they are disfavouring):

(1) This section applies if a person (P) reasonably thinks that—

(a) persons who share a protected characteristic suffer a disadvantage connected to the characteristic, or

(b) participation in an activity by persons who share a protected characteristic is disproportionately low.

(2) Part 5 (work) does not prohibit P from taking action within subsection (3) with the aim of enabling or encouraging persons who share the protected characteristic to—

(a) overcome or minimise that disadvantage, or

(b) participate in that activity.

(3) That action is treating a person (A) more favourably in connection with recruitment or promotion than another person (B) because A has the protected characteristic but B does not.

(4) But subsection (2) applies only if—

(a) A is as qualified as B to be recruited or promoted,

(b) P does not have a policy of treating persons who share the protected characteristic more favourably in connection with recruitment or promotion than persons who do not share it, and

(c) taking the action in question is a proportionate means of achieving the aim referred to in subsection (2).

In your question you do not specify the details of the discrimination, or its purpose, but I am going to presume that this is a case where the employer is seeking to engage in affirmative action in favour of women by evaluating both sex groups seperately. Assuming that is the case, in order to fall within the ambit of "positive action" in recruitment within s 159 of the Act, the employer would need to establish that they satisfy points (1)-(4) above. For example, the employer might argue that they reasonably think that there is disproportionately low participation by women in that activity (e.g., the job or industry), and their use of seperate evaluation for men and women enables women to participate in the activity. Under subsection (4), they would need to establish that any women hired under this system are as qualified to be recruited as any of the men they turned down, and that their system is "proportionate" to acheive its aim.

The main legal danger for the employer in this case is if their list of women applicants that they interview ends up including someone who is not as qualified for the job as one of the male applicants who did not get an interview. If this were to occur, the excluded male candidate could complain of sex discrimination, and the employer would not meet the requirements of subsection (4) of the section. This is likely to lead to an argument over what it means for one person to be "more qualified" for the position than another.

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