The Rooney Rule and positive action
The Rooney Rule was first taken up by the National Football League (NFL) after a diversity initiative led by Mr Dan Rooney in 2003. It was adopted by the Football Association (FA) last year in attempts to boost diversity in the game. Now, when recruiting for senior coaching positions, the FA must interview a BME applicant.
Leadership 2025, which is an intensive 9-month leadership development programme available to senior leaders from BME backgrounds working in the housing sector, has promoted the Rooney Rule and several housing associations have adopted it. There is some evidence that adopting it from the board down does change the way an organisation approach diversity.
What are the differences between positive action and positive discrimination? Positive discrimination, where one person is treated more favourably than another because they have a "protected characteristic" (such as sex, race or sexual orientation), is generally prohibited under the Equality Act 2010, unless an occupational requirement applies. Positive action is different. Not just the adoption of the Rooney Rule but the whole of the Leadership 2025 programme is based on positive action, and it is lawful.
The law contains provisions concerning lawful positive action. These are designed to apply where persons who share a protected characteristic suffer a disadvantage, have particular needs or are disproportionately under-represented. An employer can take any action which is a proportionate means of achieving the aim. The aim must be to enable or encourage people who share the protected characteristic to overcome or minimise the disadvantage identified, to meet the needs identified, or to enable or encourage people who share the protected characteristic to participate in the activity in which they are under-represented.
Positive action in recruitment and promotion
As well as taking general positive action, housing providers can take positive action in recruitment and promotion. This applies where an employer reasonably thinks that people who share a protected characteristic suffer a disadvantage connected to that characteristic, or where participation in an activity by people who share a protected characteristic is disproportionately low. So, it can use the Rooney Rule to improve the diversity of colleagues. Such action is only allowed if individuals are equally qualified for a position, the employer does not have a policy of treating people who share the protected characteristic more favourably in connection with recruitment or promotion than people who do not share it, and the action is a proportionate means of achieving a legitimate aim.
What is considered proportionate will depend on the seriousness of the disadvantage, the extremity of the need or under-representation and how else you can counter such need.
Housing providers should consider whether the action is appropriate to achieve the stated aim. They will then need to consider whether the action is reasonably necessary to achieve the aim, or whether it would be possible to achieve the aim as effectively by other means that are less likely to result in less favourable treatment of others.