βIf you work in recruitment, you've probably heard the terms thrown around: positive action, affirmative action, special measures, employment equity, positive discrimination. They sound interchangeable. Legally, they're anything but and confusing them is one of the fastest ways to turn a well-intentioned diversity effort into a legal problem. This post breaks down the difference, explains where the legal lines sit, and shows how discrimination can creep into your hiring process without anyone intending it.
Why the confusion exists:
What's permitted varies enormously by country and sometimes by state, province, or even sector. A practice that's actively encouraged in one jurisdiction can be unlawful in another. So rather than memorising every local rule, it helps to start with a global baseline: a way of thinking that keeps your recruitment fair, reduces risk, and prompts you to do the right local checks before acting.
That baseline comes down to one distinction.
Positive action: helping people reach the starting line
Positive action means taking proportionate steps to reduce disadvantage or remove barriers for underrepresented groups, without appointing someone purely because of their identity.
The key idea: you're supporting people to get to the starting line, not handing them the medal.
In many jurisdictions, this kind of action is lawful when it is:
Based on evidence of disadvantage or underrepresentation
Designed to remove barriers or widen access
Proportionate, targeted, and reviewed over time
In practice, that often looks like targeted outreach and inclusive attraction strategies, accessible application routes and adjustments, development and mentoring programmes (including returners programmes), reviewing job criteria that exclude people unnecessarily, and structured assessments that reduce bias.
These are commonly lawful in many places, though always subject to local law.
Positive discrimination: handing over the medal
Positive discrimination is different. In many jurisdictions, making a hiring decisionsolely because of a protected characteristic can be unlawful discrimination even when the intention is to improve diversity.
The global rule: never assume you can prefer someone at the point of hire because of their identity, unless you have a clear, lawful framework in that hiring location and you've followed the required conditions.
What does high-risk behaviour look like? Saying "let's hire this candidate because we need more women in the team." Shortlisting only people from a certain background because they're underrepresented. Telling your recruiter to only send candidates from ethnically diverse backgrounds. Hiring a woman just to "balance the team." Each of these is often unlawful unless explicitly authorised by local law, good intentions don't change that.
The laws that protect candidates and why they apply to you
Across most countries, anti-discrimination laws exist to protect people from unfair treatment at work and to promote equal opportunity. The name of the legislation, the protected characteristics, and the legal tests vary by jurisdiction, but the core expectation is remarkably consistent: hiring decisions must be fair, job-related, and free from discrimination.
Crucially, this isn't just an HR or legal issue. If you're involved in hiring in any capacity, recruiter, hiring manager, interviewer & you share responsibility for making sure your process doesn't exclude people unfairly.
These duties typically apply before, during, and after the hiring process. Your risk points are the everyday recruitment moments: job advertising and outreach, application and CV screening, interviews and assessments, scoring and decision-making, offers, checks and onboarding. And it starts earlier than most people think, even before someone applies, you can have responsibilities around how accessible your process is and whether your job requirements are genuinely necessary for the role.
A few principles every recruiter and hiring manager should internalise:
Anti-discrimination duties usually apply to most employers across public, private, and not-for-profit sectors
They protect both candidates and employees
Intent doesn't matter: unintentional or unconscious bias can still breach the law
You can be held accountable for decisions made by others in your process: a hiring manager's biased comment, a client's discriminatory preference
If you fail to prevent or challenge discriminatory practices, your business
and you personally could be legally liable
How discrimination happens without anyone noticing
Discrimination in recruitment rarely announces itself. It hides in ordinary moments. Here are some real-world examples:
πThe age question. A client hints they want someone "young and energetic." If you act on it, you could be participating in age discrimination. It's your responsibility to challenge discriminatory briefs and shortlist fairly.
πThe name filter. Your ATS deprioritises candidates with non-Western names or international education backgrounds. That's indirect discrimination and it can happen with no human intention at all.
πThe personal question. Asking a candidate about family plans in an interview isn't small talk. It's a form of sex and pregnancy or maternity discrimination and should be avoided completely.
πThe culture fit conversation. A candidate is rejected because they don't "fit" the team. Culture fit can quickly become social fit, and social fit becomes exclusion.
βπThe reasonable adjustment. Ignoring a candidate's request for adjustments like extra time on a written test, breaches your legal duty to provide reasonable adjustments.
βπThe banter in the room. Comments about someone's accent or background, even meant as a joke, can be harassment based on race or ethnicity. What feels casual can cross a legal and ethical line.
πThe no-gaps policy. A client insisting on "no career gaps" may exclude people who took time out for caring responsibilities or health conditions. That can amount to indirect discrimination.
The bottom line
Understanding anti-discrimination law isn't a nice-to-have. It's fundamental to being a fair, inclusive, and legally compliant recruiter or hiring manager.
Remember the baseline: remove barriers, don't hand out medals. Support underrepresented people to compete fairly through outreach, access, development, and bias-free assessment but never make the hiring decision itself about identity unless local law explicitly allows it. And stay alert to the quiet moments where bias sneaks in, because the law holds you responsible whether the discrimination was intentional or not.