When does help for one sex become unfair to the other?

We need to ask first whether the practice of female-only application lists (or lists where male participants are for display purposes only) is legal; then, irrespective of its legality, whether it is right.

You may have the best woman for the job but may never know if it’s the best person.

Every now and then, the government-directed war between the sexes breaks out of its usual pattern of low-level skirmishes and bursts into serious conflagrations.

Two such breakouts in the past week or two – the report by Elizabeth Broderick into Rio Tinto, and admissions by prominent recruiters that the use of women-only candidate lists is rife – are symptoms of institutionalised discrimination that warrants a thorough review.

This war between the sexes shows every sign of becoming a disastrous “forever war” for the same reasons some military wars fall into this trap. This war has no clearly defined objective, no timelines and no exit strategy.

Some activists offer up gender equality or gender equity as the endgame, but the meaning of these phrases is hotly contested and lacks any objective criteria by which we may know how and when we may reach this nirvana.

Cynics suspect the lack of defin­ition is deliberate. It justifies endless continuation of positive discrimination long beyond the point of legal or moral accept­ability. It’s high time, then, we agreed some rules to tell us when we no longer need positive discrimina­tion.

Former sex discrimination commissioner Elizabeth Broderick.

The Rio Tinto report by Broderick, a former Australian sex discrimination commissioner, squarely raises the collision between merit and gender employment targets. It describes complaints about reverse discrimination where women with inferior qualifications, instead of men with better experience and qualifications, have been given jobs. It also acknowledges there are women who fear affirmative action undermines their credibility in their roles.

Almost simultaneously it has emerged that Australian Securities Exchange-listed and private companies are routinely telling recruitment firms to shortlist only women for certain senior roles to meet diversity targets. Meeting these diversity targets is frequently a factor in determining bonuses for senior executives.

This is both eye-opening and humdrum news at the same time. Eye opening because this is supposed to be everyone’s dirty little secret. If two prominent recruiters, Chris Karagounis of executive search firm Alex Kaar and Jason Johnson of Johnson Partners, were prepared to concede publicly that they had been asked to run female-only searches, it must be so rife the secret could no longer be kept.

It’s also humdrum. Anecdotal evidence suggests this has become standard practice in so many businesses that it has reached the point where it’s almost universal.

Given the profound questions – legal and moral – about the propriety of the practice, it’s a shame we still have only anecdotal evidence. Alas, the risk of retribution for disclosing what is really going on is still so high that many executive recruiters who admit to being asked to run female-only searches want to remain anonymous for fear that going public will damage their firm’s reputation and make it harder to win work.

We should not be surprised that this is where quotas, and remuneration systems that make bonuses conditional on meeting those quotas, end up. As American businessman Charlie Munger famously said: “Show me the incentive and I will show you the outcome.” If you have female-only applicants you may end up with the best woman for the job – but you will never know whether you have the best person for the job.

The risk that a female-only candidate list will yield an inferior winner is obvious in any walk of life but increases in direct proportion with the degree to which a particular occupation is male-dominated.

When will time be called on positive sex discrimination in employment in favour of women in Australia? Picture: istock

This necessarily gives rise to the common belief that Australian industry is rife with examples where a woman has been chosen for a senior role when there was a better qualified man. We will never know for sure because no researcher would be so foolhardy to test that proposition empirically for fear of reprisal, but the lingering stench hanging over these recruitment and remuneration practices is terrible for both men and women.

We need to ask first whether the practice of female-only application lists (or lists where male participants are for display purposes only) is legal; then, irrespective of its legality, whether it is right.

Its legality is open to contest on two main grounds – as a matter of fiduciary duties and compliance with discrimination law.

How can directors of an ASX-listed company claim they are looking after the best interests of shareholders if they not merely allow but require their company to engage in practices that carry a high risk of not employing the best person for a job?

By making bonuses dependent on meeting gender (or any other diversity) targets, aren’t directors almost guaranteeing second best employment outcomes? How does this benefit shareholders or the company?

The more interesting question is how these practices survive discrimination law and, if they currently pass muster, for how long will they do so?

Positive discrimination in favour of women, or affirmative action, is legal in Australia, although the exact circumstances and limits are unclear. Section 7D of the Sex Discrimination Act permits a person to “take special measures for the purpose of achieving substantive equality between men and women”.

This provision has its roots in what the 1979 UN Convention on the Elimination of All Forms of Discrimination against Women called “temporary special measures”. The convention authorised states to adopt “temporary special measures aimed at accelerating de facto equality between men and women”. Importantly, the convention provided that this “shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved”.

The Australian Human Rights Commission’s own guidelines governing special measures also require that such measures be carefully monitored. It suggests that those employing special measures identify the specific inequality they are targeting, think about how the proposed special measures will achieve substantive equality between men and women, consider whether the proposed special measures are proportionate and appropriately targeted, and consider how to monitor the proposed special measure.

In other word, if special measures are wider than necessary, or last longer than necessary, they become just another instrument of oppression – but this time by women against men.

Again, no objectively verifiable evidence of compliance with these guidelines exists, but it’s not too outlandish a guess to suggest that almost no ASX-listed companies comply with these guidelines when they propose gender targets and condition bonuses on their achievement. It is a reasonable suspicion that the limits on affirmative action are not considered or deliberately ignored.

In an analogous context, the limits to racial affirmative action measures have been closely considered in the US and are leading to wholesale abandonment, or at minimum, drastic revision, of affirmative action programs at universities and workplaces. This follows the decision last year by the US Supreme Court in Students for Fair Admissions v Harvard that outlawed race-conscious affirmative action programs at US universities as contrary to the guarantee of equal protection in the US constitution. That decision was only a matter of time because as justice Sandra Day O’Connor said in the 2003 decision that initially permitted some positive discrimination in university admission, Grutter v Bollinger, “race-conscious admissions policies must be limited in time”.

So, when will time be called on positive sex discrimination in employment in favour of women in Australia? If your test is equality of opportunity, then it’s easy to argue that time is already up. Girls already do better at school than boys and enter university in significantly higher numbers.

Demanding equality of outcome is a particularly unattractive proposition and one that would not only be practically impossible to achieve but likely repugnant to women as well as men. It’s all very well to want 50 per cent female representation on boards, in parliament and in courts. But surely if you’re serious about equality of outcome you should be consistent and reject the cherrypicking.

Alas, no gender activists are calling for gender equality in HR departments (which are mostly filled with women) or the garbage collection industry (almost entirely comprising men).

My dictionary must be old. It defines special to mean something that’s not ordinary or usual, something different from what is normal. But today special measures have become the norm; they offer a permanent leg up for women in areas seen as desirable career choices. There will come a point when this normalised discrimination in favour of women, and therefore against men, becomes so unsustainable that even the gormless Male Champions of Change will realise time’s up.

The smart thing for women to do is plan an end to this forever war. Get ahead of the curve, girls, and agree an end date for special measures.