11 POSITIVE ACTION Anti-Discrimination Law Does Not, As
11 POSITIVE ACTION Anti-discrimination law does not, as pointed out, prohibit measures that are aimed at improving the social and economic status of groups that are socially at a disadvantage. Th is general principle, manifested in the diff erent instruments and pieces of case law, hides signifi cant disagreement behind it. To begin with, the diff erent pieces of anti- discrimination law use diff erent terms, sometimes referring to this type of measures as ‘positive action’, ‘affi rmative action’ or ‘special measures’. In this chapter the term ‘positive action’ is used as an umbrella term for the sake of convenience, not, for instance, because of any assumed superiority of the concept. Secondly, the substantive con- tent of the principle is couched in several diff erent ways. Perhaps most importantly, it is sometimes suggested that states have an obligation to take positive action, whereas most pieces of anti-discrimination law are generally interpreted only to allow, not require, such action. Th ere are also manifest diff erences in terms of the legitimate scope of positive action, as will be shown a bit later on. In short, the applicable legal standards exhibit conceptual and substantive diversity. For the purposes of the present discussion, positive action is broadly speaking used to refer to a policy or a specifi c operation that directly or indirectly helps to diminish or eliminate particular disadvantages suf- fered by a group or the members thereof in terms of opportunities or resources, over and above those measures that need to be undertaken to identify and eliminate discriminatory practices and criteria.1 Positive 1 For other conceptualizations, see Marc de Vos, ‘Beyond Formal Equality: Positive Action under Directives 2000/43/EC and 2000/78’ (Luxembourg: OOPEC, 2007), p.
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