Why women still can't win

The ruling on all-female shortlists sets equal opportunities back a generation, says Geraldine Bedell

IT WAS an unedifying spectacle: the very legislation set up to do away with discrimination had been deployed to consolidate it. An industrial tribunal ruled last week that the Labour Party's all-women shortlists were illegal under the Sex Discrimination Act. And the public body that helped to fund the case against the women-only lists? The Equal Opportunities Commission.

Is this what the Act, and the commission, were created for 20 years ago? To despatch an attempt to get more women into the House of Commons? Everyone complains about female under-representation in Parliament; everyone wants to "do something" about it. Even the Daily Mail, scarcely able to contain its glee, threw in the disclaimer: "Yes, there should be more women in the Commons ... But women must win on merit and in an open contest."

It is easy to sound high-minded when you're sure nothing is in danger of changing. Without practical initiatives, bleating about the paucity of women in Parliament is so much cant.

Women-only shortlists fell foul of a law which, like much legislation, is capable of producing unforeseen and wholly unintended consequences. Already in bad odour, thanks to the inflated compensation payments to ex-servicewomen dismissed for being pregnant, the Sex Discrimination Act has now been cast into further doubt.

Many months ago, the EOC sought an opinion on the legality of the shortlists from an eminent QC. His view, subsequently made available to the Labour Party, was that the shortlist fell within Section 33 of the Act, which exempted from legislation gender-biased activity within political parties. International law also seemed to be on Labour's side: the 1979 UN Convention on the Elimination of All Forms Of Discrimination Against Women states that the "adoption of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination".

The industrial tribunal decided on a different technicality that the shortlists were discriminatory. Geoffrey Bindman, a leading equal opportunities lawyer, believes, however, that although Section 33 was introduced to exempt women's sections of political parties, a careful reading of Hansard for the period "suggests that Parliament probably did not intend to bring the Act into the political arena".

In short, the ruling contradicts not only the spirit, but the direct intention of the legislators. Positive discrimination - which is what the shortlists were deemed to be - is illegal in this country. Positive action is not. The distinction is a fine one. Broadly speaking, the latter allows for the setting of targets - for example to increase the numbers of women participating in management training.

Kamlesh Bahl, chair of the EOC, says targets are under-used in Britain, a view which puts her out of step with those who are responsible for equal opportunities policies in business. A recent survey of 237 companies found targets were overwhelmingly considered to be the least effective way of helping women and people from ethnic minorities.

Business has moved away from positive action, which is widely believed to encourage a backlash, as white males (Peter Jepson and Roger Dyas-Elliott, for example, who brought the case against Labour) decide they are now the ones being discriminated against.

Research in America also suggests that the beneficiaries of affirmative action suffer more stress and feel more defensive than those who believe themselves to be (and are believed by their colleagues to be) chosen entirely on merit. Far from debunking stereotypical thinking, affirmative action may actually reinforce it. Women become a special case, a group, when they would prefer to be viewed primarily as individuals and, in any case, have vastly different needs: the difference in pay between highly-paid professional women and part-time, low-paid women is widening, while the differences of both groups with men in similar jobs are closing.

There is a further, philosophical problem with affirmative action, which may have been what troubled Tony Blair, no great supporter of the women- only shortlists. The policy clashes with the very notion it is trying to promote; that everyone should be treated equally.

Futurologists and would-be gurus believe women won't have to worry about affirmative action soon anyway, because the world of work will be so much better adapted to female needs and talents. William Bridges, author of Job Shift, has argued that the next couple of decades will see more working from home, more emphasis on individual output and less on status and hierarchy. Individuals will have relationships with numerous small outlets rather than one monolithic employer: and women needn't worry about the glass ceiling because it won't exist.

Meanwhile, Helen Wilkinson's work for the think-tank Demos suggests the pay gap between young professional women and men is closing fast. Girls who have out-performed boys at school will start to do so in the workplace. There are already more female solicitors under 30 than men, and the number of women earning more than their partners has trebled in little more than 10 years from one in 15 to one in five.

All of which post-feminist optimism is very well, until you recall last week's excitement over the appointment of Clara Freeman to the board of Marks and Spencer. Freeman is only the third female executive director of a FT-SE 100 company, while only 3 per cent of all company directors are women. A report from the National Institute for Economic and Social Research shows that women at all levels of management stand a smaller chance of being promoted than their male colleagues.

It may be comforting to think your daughter will have an easier time of it, but if you're over 35 and bashing your head on a glass ceiling somewhere, that might not be enough. The rosy view also signally fails to take notice of what has been called the "family gap", the difference in pay and promotion that yawns between women and men as soon as there are children.

But if legislation is not the panacea that was hoped for, and we don't have time to wait for the organic changes promised with the revolution in working practices, what can be done? The same surveys that suggest targets are unhelpful indicate that policies aimed at all employees are the best way forward. Homeworking, flexi-time, annual hours, job sharing and parental leave are all examples of schemes that benefit women without disadvantaging men.

Such policies may be expensive, however, and it would be unreasonable to expect business alone to pay. There is a business argument for encouraging diversity in the workforce, but it offers little rationale for companies to invest in the opportunities of low-skilled, part-time women workers.

Perhaps there is a new role for the EOC here, promoting and finding ways of funding such initiatives. The commission celebrates its 20th birthday this year: two decades of interpreting and operating the law and studiously avoiding anything too radical. The appointment of the hitherto unknown Kamlesh Bahl disappointed many who had hoped Sue Slipman, who had campaigned with such verve for one-parent families, would get the job. She was thought to have been vetoed by Downing Street. The EOC has always been eminently containable; never does it appear to have crossed any Tory government's mind that it should be abolished.

This is not to suggest that the Sex Discrimination Act, and by extension the EOC, has been without significant successes. Kamlesh Bahl points to the long legal battle on behalf of part-time workers, in which the commission argued that they should have the same employment protection and redundancy rights as their full-time colleagues. The case was lost in the High Court and the Court of Appeal before the House of Lords finally invoked European law to find in the commission's favour in 1994, so benefiting half a million workers, the overwhelming majority of them women.

The law is an unwieldy instrument and women are not a homogeneous group, so there are no easy answers. The way forward for women seems to be more (in the jargon) "upstream" initiatives, such as skills training and different working patterns, and fewer "downstream" correctives, such as targets. Unfortunately, the former take a while to wash down to where they're needed. The management guru Professor Charles Handy, noting that the next generation of women won't have to worry nearly so much about these issues, says: "But of course, people are impatient." Too right they are. When everyone acknowledges women have been disadvantaged for decades, how come there's not much anyone can do about it right now?