This report discusses the complex legal issues relating to the application of positive action. It takes into account concrete cases, good practice examples and examples of problematic provisions. It is hoped that the report will contribute to a better understanding of the legal nature of positive action as well as of its boundaries as specified by European and national legislation and case law.
This Report summarises 24 country reports from Equality Bodies on the implementation of positive action measures across Europe. It sets out a plethora of innovative ways Member States and enterprises are seeking to prevent or compensate for disadvantages experienced by men, women, persons with disabilities, older and younger people and people from ethnic or national minorities. The range of measures illustrate a creative use of the broad permissive provisions in the Equality Directives which enable steps to be taken to enhance equality of opportunity for all.
The report starts off with a historical overview of affirmative action measures in the United States, the rationale of such measures and the current landscape of affirmative action in the United States. It goes on to set out the legal framework for positive action measures in the EU Equal Treatment Directives, the relevant provisions in International and European Treaties and Conventions and the obligations on States to take positive action in certain circumstances. Case law before the Court of Justice of the European Union has so far focussed on gender equality measures and the Working Group’s analysis suggests that the CJEU intends to use a uniform concept of positive action for all discrimination grounds.
Once positive action has been clearly distinguished from other provisions in the EU Equal Treatment Directives such as indirect discrimination, reasonable accommodation for disabled people and special treatment of pregnant and nursing mothers, the report gives a number of examples of positive action measures taken across the EU. Positive action measures to tackle under representation of women in employment are the most widespread and well developed with most action falling within this category. Not only are the private and education sectors taking specific action to enhance employment opportunities for women via grants and training, but in certain states (Sweden, Serbia, Poland, Portugal and France) various obligations are placed on private and public sectors to meet employment targets, publish equality data and adopt action plans to address under representation and achieve equal pay.
The second most prevalent type of positive action measures are those targeted at persons with disabilities, including: employment quotas or subsidies for employment; transport and parking facilities to provide access to goods and services. In order to tackle disadvantages linked to age, several countries (Serbia, Slovenia, the Netherlands and Latvia) have introduced various subsidies to encourage the recruitment of younger and older workers. Older people also benefit from the measures taken to reduce the cost of transport to compensate for their reduced earning capacity.
Measures to enhance access to employment for people from ethnic minorities are taken in a number of member states (Norway, Germany) to ensure that bias does not affect the shortlisting process. In Germany depersonalised application forms were evaluated as being effective in ensuring that candidates were assessed on their qualifications rather than their gender or ethnic origin. A number of states have implemented positive action measures for Roma people (Slovenia, Italy, Croatia, Latvia, Slovakia, Serbia, Romania and Hungary) focussed on training, education, housing and subsidies for companies who hire employees with a Roma background. Further, in Italy resources were provided for lawyers, jurists, police services, Roma associations and media professionals to foster networking opportunities and working methods in order to tackle discrimination and provide support to victims.
The collection of data is critical to understanding when positive action is needed and justified. However, some challenges exist regarding analysing and collecting data. Significantly, most equality bodies report that hard data related to gender is generally available and uncontroversial and this is likely to be a contributory factor to the prevalence of positive action measures targeted at women. However, the same cannot be said for other protected groups. The Working Group’s discussions suggest the need for providing adequate resources to equality bodies and other monitoring bodies and the need for mandatory, systematic and cyclic monitoring, publishing of and follow up on results.
Positive action is generally not well understood or systematically implemented. We offer some ways forward to improve the acceptance and take up of positive action, including actions that can be taken by equality bodies, such as promoting positive action and informing all relevant stakeholders; conducting research in the area; formulating specific recommendations to Member States for the use of positive action, including in their public procurement contracts; monitoring the implementation of existing measures; and gathering and communicating good practices. Placing obligations on public authorities to promote equality in the discharge of their duties and in procurement, including the use of positive action, is also considered in this chapter.
Finally, we present a case study of the use of positive action measures addressing religious and political discrimination in Northern Ireland. A duty was introduced on employers in 1989 to actively practice equality, which entailed monitoring, workforce and employment practice reviews and affirmative action. This chapter also explains how to ensure that positive action is lawful, distinguishes such action from the reasonable adjustment duty and explains the factors which have made positive action a success story in Northern Ireland, offering lessons learned to other countries.