05-02-2019
M. Furlong, a white heterosexual male, applied for a position on the Cheshire Police Force in England. He was one candidate among hundreds. During the interview process, each applicant was assessed and given a “pass” or “fail” mark. Furlong passed but was not offered a position. He believed he was a strong candidate based on the feedback he received during the interview process. Based on this belief, Furlong claimed he was not hired because the police department was seeking diversity. In 2015, Cheshire was criticized for not having any black officers. Since its public criticism, the police department had actively been trying to diversify its force by ethnicity, gender, sexual orientation, and disability.Under a British law entitled the “Equality Act 2010,” employers are permitted to consider “positive actions” for applicants that are female, black and minority ethnic, LGBT and individuals with disabilities. These “positive actions” are only permitted when making a choice between two or more candidates who are “as qualified as” each other when the particular groups are disproportionately represented. According to the Cheshire force, all of the 127 candidates that “passed” were equally qualified for the position and thus the department could consider diversity.
In reviewing interview notes from the case, the British court found it was not true that all of the candidates were equal. Rather, the tribunal found the threshold was “artificially low.” Furlong was found to have been discriminated against based on his sexual orientation, race, and sex. This case is one of the first to have been decided under the Equality statute’s “positive action” provisions. Strict rules apply for those employers seeking to utilize it.