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. 11; Anita Allen ‘Can Affi rmative Action Combat Racial Discrimination? Moral Success and Political Failure in the United States’ in Appelt, Erna – Monica Jarosch (eds.) Combating Racial Discrimination: Affi rmative Action as a Model for Europe (Oxford: Berg, 2000), p. 25; Olivier de Schutter ‘Chapter Seven: Positive Action’ in Dagmar Schiek – Lisa Waddington – Mark Bell, Non-Discrimination Law: Cases, Materials and text on National, Supranational and International Non-Discrimination Law (Oxford: Hart Publishing, 2007), p. 759. De Schutter, for instance, considers that positive action is about diff erences in treatment on the basis of otherwise suspect grounds. Th is study, however, proceeds from the understanding that already equal treatment sometimes requires that “suspect grounds” are taken into account, and that on the other hand, positive action is not about using “suspect” criteria but about the impact of such measures on the target groups. 344 part three - rethinking the response action can, at least in theory, be distinguished from positive, active measures taken in order to track down and eliminate discrimination, in that positive action goes beyond such measures.2 What is characteristic of positive action is that it is oriented towards accelerating and even ensuring the achievement of a more equal distribution of opportunities or other social goods, seen from a group perspective. It is about taking into account the very characteristic – ethnic origin – that puts people at a disadvantage in our societies. Th ere is, however, not necessarily even a fi ne line between positive action on the one hand, and policies of equal opportunity and general welfare policies on the other.3 For an example, an employer may train the staff on equal treatment law, and may review selection, recruitment and other employ- ment criteria and practices to track down factors that slow down the hiring of minority persons. Th ese measures may well lead to an increase in the number of minority employees, and one could well argue both that they constitute plain anti-discrimination work and that they constitute positive action.4 General welfare programmes and policies are by defi nition aimed at the least well-off , which means that in an ethni- cally stratifi ed society many immigrant and minority groups do benefi t from them in a particular way. Again, it is largely a matter of opinion whether this is seen as positive action or not. Th e above examples sug- gest that positive action should perhaps not be conceptualized as a deviation from general equal opportunity policies or general welfare policies. In fact, there may be signifi cant overlap between these approaches. Th e diversity of legal standards and the fact that they mostly stop short of requiring positive action express the plurality of political views on this subject matter. Positive action goes into the heart of theories and sentiments about social justice, as it deals with the distribution of

2 See e.g. Nathan Glazer, ‘Affi rmative Action and “Race” Relations: Affi rmative Action as a Model for Europe’ in Erna Appelt–Monica Jarosch (eds.), Combating Racial Discrimination: Affi rmative Action as a Model for Europe (Oxford: Berg, 2000), p. 140. International and European anti-discrimination law emphatically point out, that the prohibition of discrimination does not preclude positive action measures. Such a clarifi cation would not be necessary if positive action was simply about measures taken to eliminate discriminatory practices. 3 See e.g. Melissa S. Williams ‘In Defence of Affi rmative Action: North American Discourses for the European Context?’ in Erna Appelt – Monica Jarosch (eds.) Combating Racial Discrimination: Affi rmative Action as a Model for Europe (Oxford: Berg, 2000), p. 70. 4 Th is is the case particularly if one operates within the conceptual framework of substantive equality of opportunity.