Women in tech: the fine line between positive action and discrimination

Women in tech: how many are there really, and why?

London Tech Week is taking place this week (11-17 June), and there is no better time than the present to consider the underrepresentation of women in tech.

In March 2018, the Wise Campaign for gender balance in science, technology and engineering published statistics for 2016/2017 showing that for the third year in a row, females represented just 14% of Engineering and Technology graduates.

It is estimated that only 17% of employees in the UK tech sector are female. For the few women who do embark on careers in tech,the working environment does not sound particularly motivating with 60% of women saying they are treated differently to their male colleagues (source: survey by tech recruitment firm DICE Recruitment Limited), and 22% of female tech founders feeling they are not being heard by male investors (source: FoundHER Female Founders’ survey-released by AllBright, a funding and support platform for female tech entrepreneurs).

Positive action or discrimination? A fine line

The Government is taking action to tackle the root causes that stop girls taking core STEM (Science, Technology, Engineering, and Mathematics) subjects at school, which ultimately prevents women entering careers in these well-paid sectors. It begs the question, can UK employers and recruiters take positive action and actively recruit more women than men to address the imbalance? Or is this sort of positive action likely to be construed as discriminatory towards men?

The Equality Act 2010 renders most discrimination in employment unlawful. However, in limited circumstances an employer or recruiter may be able to avoid liability by showing that its discriminatory actions fall within one of the exceptions in the Act. One of the exceptions is positive action in recruitment and promotion. It applies where an employer or recruiter reasonably thinks that persons who share a protected characteristic (in this case, women) suffer a disadvantage connected to the characteristic (because they are women). Therefore, employers and recruiters in the tech sector can, but are not obliged to, use the positive action exemption to recruit women over men.

When is the positive action exemption allowed?

It is important to note though that the positive action exemption is not a free ticket to unconstrained discrimination against male applicants because the exemption is only allowed where:

• the female applicant is as qualified as the male applicant to be recruited or promoted
• the employer or recruiter does not have a policy of treating women more favourably than men in connection with recruitment and promotion, and
• taking the action is a proportionate means of achieving a legitimate aim.

Therefore a blanket policy of treating women more favorably than men regardless of merit is unacceptable. Likewise, the EHRC Employment Statutory Code of Practice provides that the Act essentially allows positive action in recruitment and promotion in relation to a "tie-breaker" situation where the employer or recruiter is making a choice between two or more candidates of equal merit. The EHRC code also states that employers should not allow positive action to continue indefinitely, without any review, as the positive action may no longer be appropriate. Given the current situation in tech sector, it is clear that positive action is still necessary.

Although UK employers and recruiters need to focus on recruiting enough women into the tech sector, they should not lose sight of the end game: retain and support skilled women so that they have every opportunity to rise through the ranks to board level and beyond.