Positive Action - Case Study Example

INTRODUCTION Positive or affirmative action refers to any measures and initiatives that are specifically designed to mitigate or counteract the effects of past acts of discrimination and also to eliminate stereotyping (Michael, 1994). Positive action however does not involve treating some people more favourably than others nor does it seek to eliminate positive competition. It also is not positive discrimination which actually is unlawful in the United Kingdom. Initiatives for positive action are generally designed to make employers be able to encourage minority groups to apply for promotions and jobs. This is because some members of society tend to feel that they do not "fit in" because of their backgrounds or lifestyles to some organisations. Some people, due to past experiences in other organisations have come to a conclusion that they are unwelcome to work in certain organisations. It is the primary objective of positive action to dispel such untrue notions and show the potential employee how much change has occurred in the way organizations are managed (Michael, 1994). Positive action creates an emphasis that applications are in particular welcome from people that are considered to be from minority groups. LEGAL BACKING FOR AFFIRMATIVE ACTION Despite long-standing legislation worldwide, women and minority groups are still under-represented within many public and private sector organisations at managerial level (Nancy, 1996). One way of making a difference in this issue is through providing positive action initiatives at the workplace. During recruitment drives, organisations with large-scale under-representation of particular groups can add advertising clauses stipulating that applicants from the under-represented groups are encouraged to apply for jobs. Positive action initiatives give potential employees from under-represented group's legal backing for equal opportunity with other applicants. In the United Kingdom, positive action is not legally obligatory but is existent under the Race Relations Act of 1976, the Sex Discrimination Act of 1975, the Disability Discrimination Act of 1995, Sex Orientation Regulations of 2003, Employment Equality Regulations of 2006 and the Religion and Belief Regulations of 2003 (Nancy,1996). FORMS OF POSITIVE ACTIONS AND EXAMPLES OF INITIATIVES IN THE UNITED KINGDOM Because positive action is not geared towards eliminating competition, its initiatives usually end before the selection process is started. During short listing and selection of candidates, the person must show merit and capability to do the job. Positive action can also come in the form of training courses designed for specific groups to ensure they can compete with others on level ground. Yet another mode of action of positive action is through implementing changes to discriminatory practices and policies in light of findings. In the United Kingdom, positive action initiatives include "Tomorrow's planners'" initiative. Positive Action Training Highway, the Department for Communities and Local Government and the Planning Inspectorates together have been working to oversee the success of the Tomorrow's planning initiative (Nancy, 1996). This particular initiative aims at increasing black, Asian and other minority group representation in planning over the coming decade. THE HUMAN RESOURCE FUNCTION IN RELATION WORKFORCE DIVERSITY Employee recruitment and selection is increasingly becoming important with more attention being paid to avoid the costs that are associated with poor selection. Several methods are applied in selecting an organization's human resource and generally include advertising, testing, screening, completing application form, interviews and through correspondences with prospective employees. It is the mandate of the human resource team to recruit and select a team that is effective in the organisation's running. The HR department must also come up with polices that will ensure that the process of employee recruitment and selection is carried out within the laws of the country, is above board and incorporates diversity. Organisations and companies have social and moral responsibility to not only accept but also embrace diversity (Michael, 1994). A diverse team of employees is one in which each and every member of staff is valued irrespective of their age, race, gender, disability, religion, sexual orientation, what they look like or how they operate. While people are attracted to working where employees are well cared for and appreciated, there are also legal implications for incompliance with laws on workplace diversity. In this regard, there are a number of companies that face huge legal costs and have damaged reputations as a result of poor employment of procedures and practices. NEW APPROACHES TO AFFIRMATIVE ACTION Affirmative action being a complex subject demands great care in its approach. The following criteria are used to define the current approach considered by EOC: Provisions of the affirmative action need to be straightforward in application and easy to understand, avoiding the need for complex or detailed statistical evidence. Affirmative action, in relation to services and goods, should objectively ensure that full equality is practiced and should further include particular measures to forestall or compensate for disadvantages linked to special needs. In regard to employment, working conditions and vocational training, such measures should be directed towards full practice of equality and may include provisions for specific advantages with an aim of making it easier for members of the under-represented group to exploit vocational activities, or compensate for existing disadvantages in professional careers. Provisions for affirmative action should equally be applied across the strands and further should be principled, purposeful and permissive. Reformed affirmative action provisions need to fulfil all the requirements as established in the laws of the United Kingdom. LEGAL IMPLICATIONS OF APPLYING POSITIVE ACTION-BASED POLICIES IN EMPLOYEE RECRUITMENT COMPLEXITY, NARROWNESS AND POTENTIAL SCOPE OF POSITIVE ACTION Positive action that attempts to create a counter balance between the majority and under-represented group has often been controversial and widely misunderstood. It has often been understood by certain quarters to imply the re-introduction and subsequent implementation of practices that are discriminative. The scope of positive action in domestic law in respect of gender has certain limitations. Positive action in this case is limited to encouraging members of one sex (the under-represented) to apply for jobs. Single sex training courses are also considered acceptable within the law.' It is however realised that over the years, the legal framework on positive action has not developed parallel with the changes that have occurred in society. The complexity, narrowness, widespread misunderstanding and potential scope of positive action have made the whole issue of positive action much more controversial (Nancy, 1996). Moreover, divergent legal approaches to positive action. In the UK, positive action measures have been legally introduced in areas such as belief, sexual orientation and religion. While these introductions more closely reflect current European approaches, they do not consistently run with pre-existing provisions on race and sex. There are cases where organisational and individual rights become conflicting. Such problems are usually associated with due process requirements, employment contracts, and affirmative action among other factors. There are several legal implications of employing affirmative action policies during employee recruitment and promotion. The human resource department of the organization must hence take pre-actions to minimize litigation while protecting both individual and institutional rights. Organizations have great discretion and autonomy in deciding cases related to tenure, reappointment and promotion. Current legislation in the UK permits submission of discriminatory cases to juries making it more likely for an institution to be sued by an employee who is for some reason dissatisfied by processes and procedures related to the application of affirmative action. MERITOUS AND FAIR CONSIDERATION Owing to the fact that promotion is subjective, it becomes difficult to determine what constitutes meritous and fair consideration. Further to this, some practices and policies adversely affect certain minority groups. As a direct or indirect result, employment discrimination cases may be on the rise when affirmative -action based policies are adopted. This clearly calls for careful documentation of data regarding reappointment, tenure and promotion decisions. These will be of great need in case an employee raises questions regarding his/her discrimination. REVERSE DISCRIMINATION Current political and societal debate have greatly raised questions regarding the administration of affirmative action, and those who are not beneficiaries of such actions and yet feel for whatever reason that their personal rights have been grossly violated. The human resource department must hence note the possibility of certain employees raising issues related to "reverse discrimination". The organization must hence be able to justify positive action as an attempt to correct any effects of the organization's own discrimination or to correct imbalances that are clearly manifest in the job market. In a case where the organization has invoked use of affirmative action to correct job market imbalances, the organization must have proof that this is only a temporary measure without trammelling rights of other employees. It is however important to note that public institutions are subject to provide standards of justification that are stronger on constitutional grounds. RIGHT TO KNOW Employees may demand to have access to peer review materials with an aim of showing proof of discrimination. In certain states, employees demand that peer evaluations materials are availed to them under "right to know" or related laws (Michael, 1994). Law courts may compel disclosure of peer review material in some cases while in other cases they may decide that that institutional policy to keep such records secret stands respected. In other cases, the institution provides a redacted copy of employee review materials. A peer evaluation policy that is based on fair and sound reasoning is bound to stand the test of constitutional law. In this regard, the human resource manager must ensure that sound and fair reasoning is applied in all cases of affirmative action. Generally, it is noted that the peer review system is less affected by the disclosure of review materials. DEFAMATION AND OTHER TORTS There is a high risk that the human resource team involved in a peer review process can be sued on grounds of defamation and other torts. In such a case the team is normally protected by qualified privilege or state law (Nancy, 1996). Qualified privileges are granted to those involved in employment evaluations against liability from certain torts provided that they do not act maliciously or out of ill will. These privileges are granted when certain interests are at stake. Many organizations have insurance that cover such matters. The organization that relies on policies based on positive action should hence consider purchasing such insurance. However adequate measures must be taken to avoid acts of bad faith, malice or information disclosure to individuals who have no legitimate interest in peer review matters. Further, the HR function must fairly and honestly act and be able to provide detailed examples for conclusions to be adequately protected from liabilities related to defamation and other torts. WAYS OF MINIMIZING THE RISK OF LITIGATION It is very important for members of the organization and especially the human resource function to understand the legal implications of their activities and responsibilities. Legal surveys and audits should be carried out periodically to ensure that practices and policies comply with current laws and legal principles. Further, teamwork and legal audits can adequately serve as early warning systems to management and hence help avoid litigation against the company. In general organizations need to involve legal experts when formulating procedures and policies for promotion, tenure decision and reappointment. Tenure, promotion and reappointment policies formulated by the human resource function must be unambiguous, consistent and explicit clearly articulating how tenure is acquired (William & Barbara, 2006). All practices that specifically are not addressed in the organization's written policies should be minimized or altogether eliminated. All institutional units should by a single promotion, tenure and reappointment policy be governed with adequate provisions to include if need be different standards among the units. Also, the criteria for tenure, promotion and reappointment should be particular enough to guide all employees. It is also important that the human resource function provide all the necessary information in preparation for tenure, promotion and reappointment review. The human resource function has a major part to play in cases related to the organization's employees and their welfare. This function should hence take proactive measures to establish clear grievance procedures. It should also adequately train those involved in review or evaluation processes knowledgeable on the basics of employment laws and more particularly those that deal with issues of discrimination. The organization needs to embark on career development and continuous orientation missions for new members of staff with a view of keeping them aware about the implications of their responsibilities. The Human resource function should keep employees updated of performance problems whenever they emerge and give enough time for improvement. The entire organization has a part to play in ending discrimination. This can well be done through individual commitment to take every necessary step towards achieving this end. The organization as a whole must consciously be aware of political, social and legal interests that are associated with positive action. Employees should be provided with retracted copies of their performance evaluations on top of other peer review materials. One important measure that the organization should take to avoid litigation based on employee discrimination is the adoption of an alternative binding arbitrary method of dispute resolution (William & Barbara, 2006). CONCLUSION Adopting a recruitment policy that is based on affirmative action while driven by good motives can pose a great challenge to the human resource function. The organization or its employees could quite easily face litigation on grounds of discrimination. The acceptance of this fact across the organization demands the application of certain measures that are directed towards avoiding litigation and responding to issues of employee discrimination before they go out of the organization's control. ' ' REFERENCES' Baez B and Centra A'Tenure Promotion and Reappointment Legal and Administrative Implications. ERIC Digest http://www.ericdigests.org/1997-1/tenure.html retrieved on 24th March 2007 Positive action 2007 http://www.idea.gov.uk/idk/core/page.do'pageId=7214101 retrieved on 24th March 2007 Positive action 2008 ''http://www.essex.police.uk/recruitment/r_pos_01.php 'retrieved on 24th March 2007 Michael W 1994 Rights at work pay equity reform and the politics of legal mobilization Edition illustrated Published by University of Chicago Press, Nancy M1996 Justice Sandra Day OConnor strategist on the Supreme Court Edition illustrated Published by Rowman and Littlefield William A Barbara L 2006 The Law of Higher Education A Comprehensive Guide to Legal Implications of Administrative Decision Making Edition 4 revised John Wiley and Sons Read More