Irish Law Times

Positive Discrimination in the Workplace: The Case for Gender Equality

An extensive legal, regulatory and political overview of the topical debate regarding female representation on board of directors. Company boards around the world are predominantly made up of male executives, with a very small proportion being female. This article highlights why having women on the board of directors is good for business and society as a whole.

Positive Discrimination in the Workplace- The Case for Gender Equality

  1. Introduction

A topical debate in recent years has been the issue of board diversity, in particular, female representation on boards. Company boards around the world are predominantly made up of male executive with a very small proportion being female.

Research figures indicate that although 60% of graduates in Europe are female, the sex is significantly under-represented on boards of European organisations. In 2010, women held a mere 12% of board positions and less than 3% of the chairperson positions.

Various legislative and self-regulatory initiatives have taken place over the past decade with the intention of balance the gender of the boardroom. Any such initiatives are heavily dependent on considered approach of selecting and preferring (where possible and legitimate) female candidates over male candidates for executive positions -a form of positive discrimination. This article examines this topic primarily from a European and US perspective.

Positive discrimination or as it is often referred to affirmative action (within the US) is not a new concept. The International Labour Organisation in 1937 is viewed as being the first inter-governmental organisation to coin the term and definition of “discrimination”. Here, the ILO stressed that not only equal rights were required to prevent discrimination from occurring but also it extended to ensuring that equal opportunities and treatment where provided to everyone. This was later codified after World War II in Convention 111.

While there are many variety of definitions of what is meant by discrimination. The term is commonly understood to mean:

“All persons are equal before the law and are entitled without any discrimination to equal protection of the law. In this respect, the law shall prohibit discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

It is clear from the above that discriminating on the basis of gender is considered illegal in most instances. In order to circumvent this problem, a distinction has been created which is designed to remove the negativity around the term discrimination. Therefore, there are two types of discrimination -negative and positive…

This Article is available within the Irish Law Times Journal. The Journal can be found here:

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