Positive Discrimination Essay
Aim: What are the advantages and disadvantages of positive discrimination in relation to employment law?
Introduction: definition of Positive discrimination
Theories surrounding positive discrimination
Sandra Fredman: the deliberate use of race or gender conscious criteria for the specific purpose of benefiting a group which has been previously been disadvantaged or excluded on grounds of race or gender.
Gweneth Pitt: Allowing preferential treatment of one group at the expense of another.
In some cases, this means preferential treatment for a candidate who may be equally or less qualified than others.
In this presentation going discuss fairness behind Positive discrimination by looking at British statute & common law & contrasting it to EU law & the ECJ's opinion & changing stance of Positive discrimination through its leg & case law.
Under UK law Positive discrimination is unlawful but for two exceptions - will examine under what leg it is unlawful & what the pros & cons to it are.
It is unlawful since Positive discrimination discriminates in favour one group e.g. women, which inevitably discriminates against another group, e.g. men who are equally protected under leg. - Symmetrical outlook
With this in mind, Imp to note Positive discrimination not exist with disabled candidates as no law against non-disabled persons.
In order to give u clear understanding of Positive discrimination, explain it through a time-line, which will show how, got to legal position at today.
Before I take you through the time-line of the law, it is important to explain the theoretical stances of Positive discrimination, and how when looked at from 3 different viewpoints, it can be seen to unlawful as well as lawful.
Sandra Fredman has put these arguments very succinctly in her book on discrimination law. The first viewpoint looked at in the book is formal equality. This means that positive discrimination is unlawful because it differs from the formal concept of equality, which is a very symmetrical viewpoint & one mainly followed in the UK.
Fredman goes on to explain that there are 3 characteristics of formal equality which makes positive discrimination illegitimate.
FE looks at equality as a universal concept that cannot vary to reflect different patterns in society, & therefore equality always being symmetrical gives equality evenly to everyone, regardless of whether they are or are not from a disadvantaged group.
This formal equality is individualistic in form. i.e. there are no groups of sex or race, but only individuals who should be judged based on their merits alone, which then makes Positive discrimination contradictory as it...
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Hospital Corpsman 2nd Class Claire E. Ballante, assigned to the Female Engagement Team (FET),
holds a child during a patrol with 1st Battalion 2d Marines in Musa Qa'leh, Afghanistan.
Photo credit: Wikimedia Commons
The inclusion of women in the United States military has been a topic of debate since the American Revolution. January 24, 2013 marked the end of one of the few remaining barriers to their full participation as the U.S. Department of Defense (DoD) finally lifted a ban on women serving in combat fields and assignments. Historically within the US military, women have occupied official and unofficial roles: predominantly as nurses, launderers, and cooks but also serving alongside their husbands or disguised as men. Over time, their positions evolved to include clerking and supply, then espionage assignments; World War II finally formalized their involvement with the introduction of the Women’s Auxiliary Army Corps in 1942 and the Women’s Army Corps in 1943.
In 1948, Army Chief of Staff General Dwight D. Eisenhower led a successful campaign to allow women to join the Regular Army, and legislation and policy have continued to adapt to the growing role of women in the military.
Of the many factors that influence the occupational specialties women are able and choose to pursue in the military, this combat exclusion ban is a form of institutional bias–a policy that inadvertently leads to different promotion outcomes for members of different demographic groups, such as the presence of structural barriers to advancement.
Adapting Sheila Kirby, structural barriers are “prerequisites or requirements that exclude [women] to a relatively greater extent than [men]” and are “inherent in the policies and procedures of the institution.” One such barrier was the DoD policy restricting women from serving in certain career fields or assignments that involve direct ground combat. Although this policy was not intended to inhibit the advancement of women, it did so in practice, “because the combat-related career fields and assignments from which women [were] barred are considered to be career-enhancing.”
The decision to repeal the combat exclusion policy came about because of the discrepancy between official assignments for women and the actual scope of their responsibilities—because of the realities of modern warfare where traditional battlefields and clearly defined enemy lines are evaporating.
The repeal of this policy and the Services’ recent publication of their implementation plans thus offer an opportunity for gender inclusion and greater equality in the U.S. military.
An Outdated Policy in Modern Warfare
The repeal of combat exclusion merely brings policy in line with on-the-ground practice, a discrepancy rooted in definitional confusion. In 1994, Operation Desert Storm highlighted a new kind of warfare in which, “everyone in theater was at risk” and led the DoD to rescind its “risk rule” in which a position or unit’s level of risk was “proper criteria for closing [such] positions or units to women.”
In its place, the DoD declared: “Service members are eligible to be assigned to all positions for which they are qualified, except that women shall be excluded from assignment to units below the brigade level whose primary mission is to engage in direct combat on the ground” (emphasis is the author’s). This direct combat exclusion increased the overall percentage of positions open to women from 67.4 percent to 80.2 percent, but even still, certain units and skills remained closed.
Within the U.S. military, each of the Services must establish implementation rules consistent with any DoD policy. Although the combat ban affected all of the Services, the greatest effect was on Army servicemembers in that the Army’s assignment policy—written in 1992 and predating the DoD policy—was more restrictive regarding women’s assignments. The Army decreed that, in addition to specific occupational fields and units, women were, “prohibited from serving in units of battalion size or smaller whose primary mission [was] ground combat, or with units that [were] routinely located with combat units” (emphasis is the author’s).
The Army co-location assignment restriction further stated that women could serve in any officer or enlisted specialty or position, except in those specialties, positions, or units of battalion size or smaller that were assigned a routine missionto engage in direct combat or which co-locate routinely with units assigned a direct combatmission. The Army’s definition added further layers of complexity by using a different definition of “direct combat” from that of the DoD and by using “routine mission” instead of “primary mission.”
This framework created confusion about the difference between the assignment and the employment of women; women were performing in roles that could be considered combat-related despite not being formally assigned to combat units. Unlike an employment policy, a servicemember’s unit assignment, “does not prescribe what duties she can perform.” For instance:
Harrell et al.’s study (2007) found examples of female service members trained as cooks having received the Combat Action Badge in Iraq, likely because contractor cooks obviated the need for U.S. soldiers to cook. Instead these women, along with their male colleagues trained as cooks, were performing other duties such as guard duty that placed them in greater danger.
There are also instances in which individuals or small units are attached to other units. For example, on one program in Afghanistan, women serve on “cultural support teams” attached to all-male, ground combat units. These women serve as enablers for culturally sensitive functions such as talk to or frisk local women. These “legal fictions” allowed women do combat assignment work without getting professional recognition for doing so.
Under the combat exclusion policy, enlisted women officially made up 2.7 percent of the military's front-line units. Women were barred from the infantry but allowed to serve on gun crews, on aircrews, and in seamanship specialties. Among officers, women represented 5.4 percent of those involved in “tactical operations,” and despite the official combat ban, women serving in Iraq and Afghanistan often engaged in firefights: Women made up 67 of the nearly 3,500 Americans lost in hostile fire in Iraq and 33 of the more than 1,700 killed in combat in Afghanistan; more than 600 other servicewomen in Iraq and 300 in Afghanistan were wounded.
New Gender Inclusion in Combat Assignments
The DoD announcement this yearthat it was ending the ban on women serving in combat units and occupational specialties was followed by a series of reports from the Military Leadership Diversity Commission(MLDC) and the DoD Women in Services Review of 2012. Furthermore it was supported by a memo signed by the Joint Chiefs of Staff, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, as well as a lawsuit from the American Civil Liberties Union on behalf of four servicewomen. Despite controversy about the inclusion of women in combat assignments for reasons related to effectiveness, unit morale, and the affect of their presence on male troops, the DoD ultimately determined “the need to bring to bear all talent: The blanket restriction for women limits the ability of commanders in theater to pick the most capable person for the job.” The new policy also aligns policy with practice, as “[t]he necessity of war has already propelled women to the front lines.”
Once implemented, the change in policy will open to women six military occupational specialties and eighty units—more than 13,000 positions, mostly in the Army. A new “exception to policy” will allow the Army, Navy, and Marines to open nearly 1,200 assignments at the battalion level in jobs women already occupy.
The Army has said that it aims to open all remaining closed military occupational specialties (about 6,000 positions, including infantry positions) no later than January 2016.
Implications for Gender Inclusion in Combat Assignments
The DoD is the United States’ largest employer, with 3.2 million employees, including 1.4 million active-duty servicemembers, of which 14.5 percent are women. Given the number of women employed, the assignment policy change will have an important impact on the professional development, economic power, and social equality of its female contingent.
Career progression for servicewomen
The career prospects for women serving in the military have been steadily improving: Between Fiscal Years 1973 and 2008, the number of women who constituted officer accessions across DoD increased 165 percent, from 8 to 21 percent. However, of the 203,000 women in active-duty military in 2011, 36,000 were in the officer corps (16 percent of all officers) and only 69 were generals and admirals (7.1 percent of all generals and admirals).
This discrepancy is largely due to the combat exclusion ban, which created, “a structural barrier keeping women from entering the tactical career fields associated with promotion to flag/general officer grades and serving in career enhancing assignments.”
Over 65 percent of flag or general officers in the four DoD Services come from tactical career fields, but women have not been highly represented in tactical or operational career fields: 11 percent of active-duty female offers are in tactical occupations compared to about 41 percent of active-duty male officers.
Particularly because combat assignment offers an advantage for promotions and job opportunities, it has been more difficult for women to ascend to higher ranks. All military Services identify command assignments as key to building leadership credibility and thus important for officer advancement; and, in part due to their lack of tactical or operational experience, women are not highly represented in the candidate pools for command assignments.
Although the new inclusion of women in combat assignments may eliminate one structural barrier to female officers’ advancement opportunities, the evidence suggests other confounding factors. For instance, female officers are more likely to leave the military between promotions, and reenlistment rates between Fiscal Years 2000 and 2008 were consistently lower for women than for men. The repeal of the combat exclusion policy will create the possibility or choice of a combat assignment, creating new career paths and possibly changing motivations for servicewomen. The repeal may improve both servicewomen’s opportunities and the pool of candidates for accession.
Economic power of servicewomen
There is a prevalent belief that the poor are more likely to enlist in the military than their non-poor counterparts. Although the supporting evidence is mixed, 64 percent of military recruits in 2004 were from counties with a median household income lower than the national median, and the three largest schools or programs from which recruits were drawn were GED (high school diploma alternative) and job centers.
There is clear evidence that income-related factors bear on recruits’ reasons to enlist:
- The DoD’s Navy Recruiting Command examined who serves in the military and the role socio-demographics (“Socio-demographics and Military Recruiting: The Role of Veterans”) using 1990 county-level data to investigate enlistment behavior, finding that median family income and unemployment (two traditional economic factors), education, and the percent of population comprised of veterans were related to military enlistment.
- According to a RAND report, “the richness of career and schooling opportunities available” are significant and impact military recruitment and enlistment in a way that military pay and benefits do not.
- More than 44 percent of U.S. military recruits come from rural areas, while only 14 percent come from major cities. Youths living in the most sparsely populated zip codes are 22 percent more likely to join the Army, with an opposite trend in cities. Regionally, most enlistees come from the South (40 percent) and West (24 percent).
The “poverty draft” phenomenon is particularly relevant to the enlistment of women in the military: Although “group-specific unemployment rates…are not significant in determining military accessions,” blacks and women are more “responsive to increases in the ratio of military to civilian pay.”
Women from poor, rural areas can be expected to be more likely to enlist in the military if their career progression prospects, and thus their expected pay, are greater. Assuming an association between promotion and pay potential, the repeal of the combat exclusion policy will improve servicewomen’s opportunity for promotion and salary increases, thus growing the overall population of women in the military.
Social equality of servicewomen
Perceptual barriers are, “those perceptions, attitudes, or beliefs that lead [someone] to think they cannot or should not pursue…a job or career option.” An example of such a barrier in this context is the perception that some servicemembers may hold sexist beliefs, an idea proliferated by the variability of mentoring and career counseling by race and gender and by the prevalence of sexual violence in the military.
The combat exclusion policy not only legalized sex discrimination with respect to military assignments, but it may also have contributed to a hostile work environment for women. Although the policy’s repeal does not address the issue of individual bias within the military, it may work to reduce servicewomen’s perceptions of their role in the Services by eliminating an institutional bias.
Particularly in the Army, where women have been serving in combat fields in an unofficial capacity, the opening of 13,000 assignments formerly reserved for male candidates will potentially improve their visibility and, thus, their social status within the organization.
The combat exclusion policy was “one of the last remaining institutional glass ceilings for women,” blocking women from serving in the tactical and operational career fields most associated with promotion to flag and general officer grades. By allowing women to be assigned to combat fields, the DoD also acknowledges the realities of women’s participation in the military and allows them to earn the professional recognition associated with that work. The new assignment policy is a step toward ending categorical exclusions and allowing all qualified candidates to compete for jobs and promotions.
This policy is also an opportunity to advance the career progression, economic opportunity, and social equality of women in the military; evidence of which may begin to emerge now that the Services have drafted and begun implementing their own employment and assignment policies.
During the debate surrounding gender inclusion in combat assignments, however, several new issues came to light. For example, women are underrepresented in recent accessions across all Services, even those that had historically been more inclusive: Women comprise nearly 50 percent of the eligible recruiting pool but only 7 (Marine Corps) to 22 percent (Air Force) of recent enlisted accessions. These figures may be contingent on the number of available positions or by enlistment eligibility criteria (women are disqualified at a higher rate than men).
The move towards gender inclusion in combat-related roles marks significant progress and creates an opportunity for further improvement. The DoD should next consider the standardization of enlistment eligibility criteria, the factors influencing women not to reenlist, individual bias across the Services—particularly among commanding officers, and the prevalence of sexual violence. These phenomena likely play an important role in the inclusion of women at all levels within the U.S. military.
Fully understanding these issues, creating a truly inclusive work environment, and empowering women by putting necessary accommodations in place will create a more efficient and effective military organization.
Jennifer L. Barry is pursuing a Master in Public Affairs at the Institut d’Études Politiques (Sciences Po) in Paris, France. She holds a BA in Public Policy from the University of North Carolina at Chapel Hill and has professional experiences in international organizations and in local government in the United States. Jen is also interested in gender equality and corporate social responsibility.
Margaret C. Harrell, Laura L. Miller, NewOpportunities for Military Women: Effects Upon Readiness, Cohesion, and Morale, or, Military Leadership Diversity Commission (MLDC),Issue Paper56: Women in Combat: Legislation and Policy, Perceptions, and the Current Operational Environment, 2010, for comprehensive summaries of the relevant legislative and policy changes regarding women’s participation in the military; Army.mil.
Sheila Natraj Kirby, Margaret C. Harrell, Jennifer Sloan, “Why Don’t Minorities Join Special Operations Forces?” Armed Forces and Society 26 (Summer 2000), 525.
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Les Aspin, Direct Ground Combat Definition and Assignment Rule (Washington, DC: The Secretary of Defense, 1994). (Author’s emphasis added.).
Margaret C. Harrell, Laura L. Miller (1997), 17.
MLDC, Issue Paper 56, 2010
David R. Segal, Mady Wechsler Segal, “America’s military population,” Population Bulletin 59, no.4 (December 2004). (Author’s emphasis added.)
MLDC, Issue Paper 56, 2010
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 MLDC, Issue Paper 56, 2010; MLDC, Decision Paper 3: Retention (Arlington, VA: Military Leadership Diversity Commission, 2011).
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Sheila Natraj Kirby, Margaret C. Harrell, Jennifer Sloan (2000), 525.
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