‘Positive discrimination’ fears surround women-only academic posts

Government anticipates legal challenge to creation of posts ruling out men

Minister of State with responsibility for Higher Education Mary Mitchell O’Connor: By November, the posts had been given the green light and were eventually announced on November 11th, 2018. Photograph: Dara Mac Donaill

Minister of State with responsibility for Higher Education Mary Mitchell O’Connor: By November, the posts had been given the green light and were eventually announced on November 11th, 2018. Photograph: Dara Mac Donaill

 

Concerns were raised that 45 new academic women-only posts could be seen as “positive discrimination” in correspondence between government departments.

The Department of Education had been seeking advice about the legality of creating professorship posts that would be open just to women.

In emails, a senior official in the department explained that to bridge the gender gap, they wanted to create posts that would “be filled exclusively by females”.

“This model draws on international experience,” wrote William Beausang, “in particular from the Netherlands – where the approach has been notably successful.”

However, officials in the Department of Public Expenditure raised concerns last April, warning that such moves could run into legal trouble.

In response, the head of the Civil Service human resources policy unit, Louise McGirr, wrote: “You have described it as positive action but I am not sure if it is more along the lines of positive discrimination. Positive action being lawful and positive discrimination is not.”

She said it was not clear how the targets of bridging the gender gap in academia could be reached without positive discrimination.

“Positive action is not ring-fencing posts for people of a protected characteristic (ie in this case female) but you can give preference to an underrepresented characteristic (women in this case) all other things being equal and the candidates being equal on merit,” she wrote.

Women scientists

Later records reveal how the Department of Education closely consulted with a university in the Netherlands where a similar scheme had been successful.

The University of Delft explained how they’d been able to introduce female-only posts because there was a “serious and persistent backwardness [in numbers] of women scientists”.

By May, the Department of Education was still worried the scheme would run into difficulty but continued to gather evidence to back the proposal.

Mr Beausang wrote: “In light of the analysis of this type of initiative available on Google and notwithstanding the Dutch [Delft] example, it’s difficult to see that we will receive a particularly positive response from the Attorney General.”

He said they should look at other approaches that might boost female representation and ask higher education institutions if they had any suggestions on an “appropriate approach”.

Mr Beausang said they were looking for something that “doesn’t cross the what seems to be the legal ‘discrimination’ line of excluding men from applying”.

By August, the female-only professor posts were back on the agenda and Minister of State Mary Mitchell O’Connor wanted them to be announced in September.

Legal clarity

However, by late September the department was still looking for legal clarity on the move and were in communication with the Attorney General’s office.

On September 26th, Mr Beausang wrote: “Apparently we will receive the advice this pm. I understand that the advice doesn’t rule out the approach but raises questions for us to respond to.”

The detailed correspondence between the department and the Attorney General’s office has been withheld under Freedom of Information laws.

By November, the posts had been given the green light and the posts were eventually announced by Ms Mitchell O’Connor on November 11th.

It has already been reported that the Government is anticipating a legal challenge to the posts.

In a statement, the Department of Education said: “The design of the initiative was supported by detailed legal advice from the Office of the Attorney General.

“Detailed implementation arrangements will be guided by further advice to ensure that the approach is legally robust.”