A company is offering free coding courses to women and non-binary individuals only.
Is this kind of sex-based discrimination legal?
Law Stack Exchange is a question and answer site for legal professionals, students, and others with experience or interest in law. It only takes a minute to sign up.Sign up to join this community
On the face of it, this is a case of direct discrimination contrary to Section 13 of the Equality Act 2010:
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
however, the company may argue that they are taking positive action in line with Section 158 of the Act (emphasis mine):
(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,
(b) persons who share a protected characteristic have needs that are different from the needs of persons who do not share it, or
(c) participation in an activity by persons who share a protected characteristic is disproportionately low.
(2) 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.
It is likely that they will be able to justify direct discrimination on the grounds of positive action. The Government's Explanatory Notes on the section express the intent of the legislation as such (emphasis mine):
- This clause provides that the Bill does not prohibit the use of positive action measures to alleviate disadvantage experienced by people who share a protected characteristic, reduce their under-representation in relation to particular activities, and meet their particular needs. It will, for example, allow measures to be targeted to particular groups, including training to enable them to gain employment, or health services to address their needs. Any such measures must be a proportionate way of achieving the relevant aim.
A clear example is provided:
Having identified that its white male pupils are underperforming at maths, a school could run supplementary maths classes exclusively for them.
Furthermore, there is case law to establish that such positive action is entirely lawful: R (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner  EWHC 969 (Admin) (emphasis mine):
Before leaving this topic we would stress that section 158 does not concern what is sometimes called “positive discrimination”; it is more limited and concerns only what the legislation calls “positive action”. In general “positive discrimination” is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158.
That position is mirrored in Convention jurisprudence. The point can be well illustrated by the decision in Jakóbski v Poland (2012) 55 EHRR 8. In that case the applicant was serving a prison sentence in Poland. He adhered strictly to the Mahayana Buddhist dietary rules and requested a vegetarian diet for that reason. This was not provided for him. The prison authorities stated that they were not obliged to prepare special meals for prisoners on the basis of religious belief as a matter of Polish law and that to do so would put excessive strain on them. The application before the court succeeded under Article 9. For that reason the Court did not consider it necessary to address separately the right to equal treatment in the enjoyment of Convention rights in Article 14 (to which we return below).
However, in our view, the case of Jakóbski is a good illustration of the principle of equality at work in cases of this kind. What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority. In other words, to treat everyone in the same way is not necessarily to treat them equally. Uniformity is not the same thing as equality.
While this judgement concerns itself with positive action on religious grounds, it has broad application to positive action on grounds of sex too, and would be consistent with Article 14 of the European Convention on Human Rights—namely that if the discrimination can be objectively and reasonably justified, it is lawful.
There are some added complexities here that Matthew's answer hasn't addressed, especially in the meanings of words like group and disadvantage. Let’s focus on the latter of the two and proceed by way of example.
Suppose the evidence suggests that the members of a particular group are under-represented in a particular discipline. But suppose the evidence also suggests that they are being actively discriminated in favour of in that same discipline. The question arises: are the members of this group at an advantage (because they're discriminated in favour of), or at a disadvantage (because they're under-performing)? This seems to be the case for women in science, for example.
Ergo, since the language is vague, it's thus an unfortunate fact of life that the legality of such things mostly depends on the politics and broader zeitgeist within which the case is heard. Left-leaning judges will tend to decide that the members of the group under question are at an overall disadvantage, despite discrimination working in their favour, and will thus tend to hold that such discrimination is lawful, while anti-left judges will tend to decide that the members of the group under question are at an overall advantage and thus that further discrimination in their favour is unlawful.
Based on the above comments, discrimination in favour of such groups will tend to be regarded as lawful in the current intellectual climate. But in my opinion, common sense dictates that the left-leaning definition of disadvantage upon which such decisions are based doesn't really stand up to scrutiny, and as time goes on and society cycles through different worldviews, I think that a consensus will eventually emerge that the anti-left conception of disadvantage makes by far the most sense. Therefore, I consider it likely that the judicial system will ultimately begin to rule that such affirmative action policies are illegal. Indeed, I think judges will eventually declare that these kinds of policies were always illegal, but that this simply wasn't recognised at the time for political reasons.
... your link discusses hiring preferences in favor of women while not addressing the question of performance, yet your comment implies that it demonstrates both.
Yes, that was poorly worded. I've fixed the issue.
Further, the study only looks at preferences of hiring faculty, while acknowledging that a bigger problem is a lack of applicants, despite a large pool of eligible applicants.
The broader question here is whether 'lack of applicants' is a form of disadvantage that can be used to justify the lawfulness of discriminatory practices. My point is really that we can't answer this from the legislation alone and are thereby forced to rely on the kinds of precedents discussed in Matthew's answer. But realistically, these precedents don't make much sense with respect to common sense notions of disadvantage, and thus are likely to change in the future. I don't necessarily mean that right-leaning judges will swoop in and totally override the precedents. Another possibility, for example, is that a general sense of disenchantment with partisan thinking will infiltrate top-tier courts; if this happens, common sense points of view will stand a better chance of becoming precedents.
You’re side-stepping the point of women being discriminated against by saying there is a hiring bias in favor of them (and that only for academic jobs). This bias doesn’t mean they are at an advantage in life generally and therefore doesn’t mean these coding classes are unjustified.
I agree to an extent, but I also think these comments are of limited relevance, and they even support my contention to some extent. If the words 'advantage' and 'disadvantage' are used without explanation of whether general life-advantage is being meant, as distinct from hiring bias, then this really politicizes the issue, because the meaning of the legislation isn't clear. Beyond this, there's really no scientific consensus on whether women in the UK are at an overall life-disadvantage or not, so your argument doesn't (currently) hold much water. Going further, I'd make the claim that given
(a) explicit bias in favor of women due to affirmative action programs that try to lower the bar somewhat for women, and
(b) implicit bias in favor of women due to a desire to correct perceived or actual discrepancies, and
(c) the fact that women have overall greater bargaining power in the domains of romance, marriage and sexuality, and
(d) the still-widespread expectation that (straight) men ought to financially support their significant others,
it seems quite likely that an overall male disadvantage will eventually be settled upon by the scientific community. Let's call this Outcome 1. A contrary possibility is that by factoring in e.g. partner-violence, etc., the establishment will arrive at the opposite conclusion. Let's call this Outcome 2. Yet another possibility is that the scientific establishment will eventually decide that there's no apolitical way to weigh up the costs and benefits of belonging to the genders under question. Let's call this Outcome 3.
Notice that if either Outcomes 1 or 3 transpire, courts higher up in the judicial hierarchy will eventually start deciding that many of these broader life-advantage arguments don't carry much weight anymore, especially if the broader spirit-of-the-times changes.
Also, I should clarify my position a bit more. My opinion is specifically that it will eventually be recognized that most of these policies were illegal all long. But I'm not saying that such policies should be illegal. Indeed, ethically, I'd say that investing in your employees should probably be OK, even if you're investing in them in very discriminatory patterns! But that's a different conversation altogether.
You say the policies are illegal, yet you provided no evidence to support this.
I respectfully disagree. As I've said, antidiscrimination law depends very heavily on the concept of disadvantage. This means scientific evidence can carry legal weight, and I've provided some. I can provide a lot more science if people request it. However, I'd much prefer people go off and research the topic themselves, since this is the best way to get a balanced picture of the literature.
The definition of "illegal" you're using is perhaps closer to "unethical". If the law supports something, it's by definition impossible for that to be illegal (legal nuance aside). Laws changing wouldn't retrospectively make things illegal.
I'm definitely talking about legality, and by the way, a change in precedent could definitely retrospectively make things illegal.
However, I'd like to concede that you make at least one strong point here, at least implicitly. Namely, notice that there's a broader question of jurisprudence lurking beneath the surface here, namely: can so-called judge-made-law really be considered law per se, as opposed to "mere" precedent? I'm pretty sure the philosophers have yet to agree on this issue, so I concede that the way my answer is written, which proceeds 'as if' the mere-precedent side had won the debate, weakens the writing somewhat. But I also think the thrust of what I'm saying is spot on. So at some level, your point here is a good one.
The last paragraph is pure speculation about the future. This has no place on Stack Exchange. The second to last paragraph is based on wishful thinking, not actual case law. This answer has no objective merit. So I believe the people who upvote this answer do so to react to a political stance they agree with.
I'll do my best to respond respectfully to this.
As you may have noticed, my answer adds nuance to Matthew's by explaining how questions pertaining to the legality of discrimination often hinge sensitively on the meaning of the word 'disadvantage', as well as on the details of the relevant science. This gives context to the current state of affairs, and unambiguously constitutes an important contribution to the broader project of answer the OP's question. This alone makes the claim of 'no-merit' come off as... well, without merit!
Beyond this, you're right that there's a degree of speculation in the latter parts of my answer. However, that's because the law is not clear-cut in this area, and therefore we cannot know whether such policies are ultimately going to be regarded as having been legal (at the time they existed) without speculating somewhat on what the future holds. That's just the situation we're in right now! I'd hardly call that pure speculation, and I think the tone you've chosen to use (characterized by e.g. strong words and phrase and choppy sentences) probably overstates the strength of your points.
I've run out of steam at this point, so I'll probably just leave it there. Apologies to the people whose comments didn't receive proper responses.