Positive Action in Politics – Lessons and Challenges from Employment Equality
Law
Marian Jennings
School of Management
College of Business,
DIT,
Aungier Street,
Dublin 2
Abstract: Positive action and positive discrimination measures are tools which have been
utilised by legislators and policy makers to combat discrimination in a variety of fora. Such
measures have been applied in the employment arena in regions such as Europe, the United
States and South Africa as a mechanism to increase diversity and achieve substantive equality.
Northern Ireland and South Africa have also seen the enforced application of such antidiscrimination measures in the context of public authorities. One such measure which has been
applied in attempting to combat discrimination in the area of employment, and which is the
subject of much debate in the context of gender equality in politics, is that of quotas.
This working paper examines the application of positive action and positive discrimination
measures in a variety of fora, identifies the issues that arise with such application and applies
the lessons and challenges of positive action and positive discrimination to the political field.
The paper will make particular reference to such measures, as they are applied, in the area of
employment equality law.
INTRODUCTION
Discrimination in the workplace as well as in other areas of life such as housing, education,
corporate board membership and politics is an established and recognised social, economical
and legal issue. It is well recognised that the problem of discrimination will not disappear without
interventions by States, trade unions, civil social groups, NGO’s and other stakeholders and that
the mere prohibition of discrimination will not lead to significant changes in the socio-economic
position of historically disadvantaged groups.1
As well as many States introducing anti-discrimination laws, others have taken the further steps
of either permitting or mandating positive action measures to promote diversity, and prevent and
combat existing discrimination. Due to the mandatory nature of laws, they can be an effective
1
Busby, N. “Affirmative Action in Women’s Employment: Lessons from Canada” (2006) 33(1) Journal of Law and
Society.
tool in this area as they set out the legal parameters of anti-discrimination mechanisms,
establish enforcement bodies and provide for penalties for non-compliance.
There are three types of equality: equal treatment which results in formal equality; equality of
opportunity and substantive equality (i.e. equality of outcomes/results). Equal treatment is not
equality. Equal treatment means two persons being treated in the same way in the same set of
circumstances without taking account of any characteristic that differentiates one from the other
whereas equality of opportunity and substantive equality in practice may require compensatory
measures which are designed to redress the effects of past and present discrimination.2
Fredman pinpoints four potential aims of equality: it should break the cycle of disadvantage
associated with out-groups; promote respect for the equal dignity and worth of all, thereby
redressing stigma, stereotyping, humiliation and violence because of membership of an outgroup; entail an accommodation and positive affirmation and celebration of identity within
community and facilitate full participation in society.3
But why is positive action seen as a necessary tool in the equality debate? One of the clear
lessons from over 30 years of EU gender equality law is that individual litigation under the antidiscrimination model has not been a sufficient mechanism to bring about equality in practice4
and positive action is seen as having an important role in addressing the lack of progress in
achieving substantive equality in many areas of under representation or disadvantage, such as
employment, politics, education and public appointments.
However, the issue of positive action is not without controversy and this paper seeks to clarify
what is meant by positive action, discuss some of the legislative frameworks in place, address
the justifications for and arguments against positive action, discuss whether it is an effective tool
in combating discrimination and promoting diversity and to identify what lessons and challenges,
if any, from the employment equality arena can be applied to the debate on positive action in
politics.
WHAT IS POSITIVE ACTION?
The first question to be addressed is what is positive action? This is an important question as
one of the obstacles to the implementation of and a debate on positive action is the lack of
clarity as to what it really is. The term is often confused with “affirmative action “, “positive
discrimination” and “reverse discrimination”. There is no legal definition of positive action,
however it has been described as “activity designed to improve the position, in terms of the
distribution of benefits or dis-benefits, of a given social group or sub-group...on the basis that its
members suffer systematic disadvantage in that regard”.5 Added to the lack of a common
2
“Putting Equality into Practice: What role for positive action?” European Commission 2007.
Fredman, S. The Future of Equality in Great Britain (Working Paper No.5 Equal Opportunities Commission
Manchester 2002)
4
Bell, M. in Putting Equality into Practice: What role for positive action? European Commission 2007.
5
Barmes, L. “Equality Law and experimentation: the positive action challenge” (2009) Cambridge Law Journal 623.
3
understanding of the term positive action is the problem of a great deal of confusion as to the
terminology.6 A lack of understanding of what positive action means is seen as one of the
obstacles to acceptance of this model of achieving equality and diversity.
In 2009 a working definition of positive action was adopted as “consisting of proportionate
measures undertaken with the purpose of achieving full and effective equality in practice for
members of groups that are socially or economically disadvantaged, or otherwise face the
consequences of past or present discrimination or disadvantage”7. In reality the words “positive
action” and “affirmative action” are seen as interchangeable with the term “positive action” being
primarily used in the EU and “affirmative action” elsewhere.
Positive action is not the same as positive discrimination or mainstreaming. Positive
discrimination may occur when there is unconditional and automatic preferential treatment and
mainstreaming is a concept where equality and achieving equality are systematically integrated
into policy and practice at all levels with an organisation or State. As mainstreaming lacks a
legislative “backbone”,8 it is dependent on political goodwill,9 organisational capacity, sustained
leadership and expert advice10 for implementation.
Positive action is often divided between soft and hard measures; soft measures are made up of
steps to aid the disadvantaged without negatively impact on the advantaged (e.g. targeted
advertising in recruitment) whereas hard measures may impact directly on the advantaged
group. Positive action in its extreme form may take the shape of positive discrimination by using
affirmative action preferences or quotas.11 A variety of measures may be described as positive
action, outreach measures such as targeted advertising to the under represented group,
inclusionary policies, adoption of numerical targets, timetables for achieving targets, tie-break
rules, preferential treatment, quotas and methods which have a financial incentive or penalty
such as the contractual compliance model which has been utilised in the US and South Africa.
Barmes views positive action as having the character of paradox, since it claims in the name of
equality to breach the foundational precept of that ideal.12
One of the aims of positive action is to both socially and economically advance the position of a
person/persons disadvantaged by status and thus achieve substantive equality. However,
6
Commission for Racial Equality (CRE), Response by the UK Commission for Racial Equality on the European
Commission consultation on action at EU level to promote active inclusion of people furthest from the labour
market, 2006.
7
“International perspectives on positive action measures.” European Commission 2009.
8
O’Cinneide, C. “Positive Duties and Gender Equality”. (2005) 8 International Journal of Discrimination and the
Law.
9
Scottish Executive Social Research “Learning from Experience: Lessons in Mainstreaming Equal Opportunities”
(2003)
10
O’Cinneide, C. “Thinking about positive duties and positive action” Paper delivered to the Northern Ireland
Equality Commission Annual Conference 23 October 2007.
11
Brzezinska, A. “Gender Equality in the Case Law of the European Court of Justice” Institute for European Studies
Working Paper 2/2009.
12
Barmes, L. “Equality Law and experimentation: the positive action challenge” (2009) Cambridge Law Journal 623.
Fredman identifies a risk that this link perpetuates status inequality by freezing individuals into
existing status groups, or by reinforcing stereotypes.13
A further model of positive action is the concept of statutory positive duties being imposed on
either pubic or private bodies to give consideration to or have due regard for the elimination of
discrimination and the promotion of equality and diversity. The positive duty model will be
examined later in the context of Northern Ireland. The advent of statutory positive duties derives
from a growing recognition that conventional EC and UK anti-discrimination law is inherently
limited in respect of the impact it can have in shifting existing social norms.14
IS POSITIVE ACTION NECESSARY?
The question can be asked is positive action necessary or can discrimination be combated
within existing anti-discrimination laws? In a world where attitudes and perceptions change
slowly, positive action is a seen as a tool that can make significant changes to redress
imbalances in the short and medium term and at times as the only way to confront deeply
ingrained structural discrimination in a manner that positive results are achieved in a reasonable
time.15 Positive action is also effective where historical features have been a factor in
disadvantage or discrimination and where the discrimination is systematic, institutional or deeply
ingrained. The equal opportunities approach to remedying historical disadvantage is also
viewed as being severely limited due to its acceptance of the very foundations of such
disadvantage.16 The continued and growing acceptance of positive action appears to be the
dissatisfaction with the equal treatment model as a means of securing significant
improvement.17
Under the standard anti-discrimination legislative model, an aggrieved individual is required to
take a claim of alleged discrimination against the employer or service provide, this places a limit
on the effectiveness of this model. It is a model which provides a reactionary mechanism of
redress to an aggrieved individual as opposed to the preventative mechanism under the positive
action and positive duty model where the burden is imposed on the employer or service
provider. Due to a lack of individual complainants willing to bring an action, anti-discrimination
law has often had very little impact within particular occupations or areas of economic state
activity and limits the impact of existing anti-discrimination law as a lever for change.18
13
Fredman, S. “Facing the Future: Substantive Equality under the spotlight” University of Oxford Legal Research
Series July 2010 Paper No. 57/2010.
14
O’Cinneide, C. “Positive Duties and Gender Equality”. (2005) 8 International Journal of Discrimination and the
Law.
15
“Putting Equality into Practice: What role for positive action?” European Commission 2007.
16
Busby, N. “Affirmative Action in Women’s Employment: Lessons from Canada” (2006) 33(1) Journal of Law and
Society.
17
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1.
18
O’Cinneide, C. “Positive Duties and Gender Equality”. (2005) 8 International Journal of Discrimination and the
Law.
THE LEGISLATIVE FRAMEWORK AND POSITIVE ACTION
Under EU law there are significant EU Directives prohibiting discrimination on the grounds of
gender, race and ethnic origin, sexual orientation, religion or belief, disability and age as well as
EC Treaty provisions.19 Under the EU legislation prohibiting discrimination positive action
measures are permitted with certain limits, but such measures are not mandatory in EU Member
States. Regarding positive action on the gender ground Article 141(1) EC Treaty states that
“With a view to ensuring full equality in practice between men and women in working
life, the principle of equal treatment shall not prevent any Member State from
maintaining or adopting measures providing for specific advantage, in order to make it
easier for the underrepresented sex to pursue a vocational activity or to prevent or
compensate for disadvantages in professional careers.”
In EU law positive action is lawful whereas positive discrimination is not. The case law of the
European Court of Justice (ECJ) indicates that while the court is agreeable to positive action
measures during recruitment up to the point of selection it is not agreeable to steps that give
unconditional and automatic preferment to the minority or disadvantaged. Caution must also be
exercised by employers and service providers that the positive action measures they are taking
do not give rise to a successful claim of either direct or indirect discrimination. It should be noted
that positive action and its restrictions only apply to the discrimination grounds set out in the
relevant directives.
The limits placed on positive action are primarily set out by the jurisprudence of the European
Court of Justice and national legislation. The permissive nature of the EU legislation means that
positive action measures can be introduced by way of legislation in Member States, as a
national policy or at a local level within individual workplaces. Whilst EU Member States may
implement positive action measures up to the limits of the EU law they may not exceed it nor is
there a requirement on them to meet the maximum threshold set out in the relevant Directives.
This leads to an uneven approach to the issue within the Member States.
For positive action measures to be upheld by the ECJ they must be necessary to achieve a
legitimate aim, proportionate to the aim they are pursuing and be objectively justified. If the
disadvantage no longer remains, then the positive action measures will no longer be legally
permissible. Therefore some positive action measures may be short term whereas others may
be long term or indefinite. Ongoing monitoring of disadvantage and the effectiveness of positive
action measures can then be utilised by employers and service providers as a defence in legal
proceedings that challenge their legal validity. It must be remembered that positive action is
allowed in exceptional circumstances and therefore is legally limited.
With regard to disability EU legislation mandates that employers and service providers take
reasonable accommodation to facilitate the participation of disabled people in the workplace and
19
Council Directive 2000/43/EC, Council Directive 2000/78/EC, Council Directive 2004/113/EC and Council
Directive 2006/54/EC and Art 141 EC Treaty.
in the receipt of goods and services. Reasonable accommodation with regards to persons with a
disability is the opposite to the principle of non-discrimination. With non discrimination
employers and service providers may not take into account a discriminatory ground whereas
reasonable accommodation requires that the other discriminatory ground (i.e. disability) be
taken into account. It is argued that reasonable accommodation and positive action are not the
same as reasonable accommodation is mandatory and positive action is discretionary.20 In
Ireland, public bodies are required to ensure that 3% of their workforce is made up of disabled
persons unless the public body can show that there are good reasons why this is not the
position.21
Certain criticisms arise as to the uncertainty of EU law and the jurisprudence of the ECJ
regarding the legal parameters of positive action. O’Cinneide states that the law at present is
not providing clear or coherent boundary lines, 22 Barmes is of the opinion that the existing EU
legal framework needs to more clearly articulate its vision about the limits of permissible positive
action and that until such clarification occurs the regulatory system will impair the potential in
the EU for positive action optimally to be deployed to promote equality or social justice23 and
Brezezinska argues that so far (2009) the ECJ has not managed to develop a firm and
consistent case law on gender equality or to stretch it coherently to positive action and gender
mainstreaming.24
Northern Ireland
Three important measures to address discrimination, under-representation and segregation in
the Northern Ireland workplace can be found in the Northern Ireland Act 1998, the Fair
Employment (Northern Ireland) Act 1989 and the Fair Employment and Treatment Order 1998
and the Police (Northern Ireland) Act 2000.
Under section 75 of the Northern Ireland Act 1998, all public bodies have a duty in carrying out
their functions to have “due regard” to the need to promote equality of opportunity between
specified groups including between men and women, disabilities persons, people with different
religious belief and political opinion, racial groups and others. Public bodies are required to
produce a scheme setting out its arrangement for assessing compliance, for assessing and
consulting on the likely impact of policies on equality of opportunity, for monitoring any adverse
20
“International perspectives on positive action measures” European Commission 2009.
The Disability Act 2005.
22
O’Cinneide, C. “Thinking about positive duties and positive action” Paper delivered to the Northern Ireland
Equality Commission Annual Conference 23 October 2007.
23
Barmes, L. “Equality Law and experimentation: the positive action challenge” (2009) Cambridge Law Journal 623.
24
Brzezinska, A. “Gender Equality in the Case Law of the European Court of Justice” Institute for European Studies
Working Paper 2/2009.
21
impact of policies, for publishing results of the assessments, for training, and for ensuring and
assessing public access to information and to service provided by the authority.25
Mandatory monitoring of the religious makeup of the workforce to assess whether the Catholic
and Protestant communities are enjoying “fair participation” in employment is required by the
Fair Employment (Northern Ireland) Act 1989 and the Fair Employment and Treatment Order
1998. If the employer cannot illustrate that there is fair participation, the employer is then
obliged, in agreement with the Equality Commission to take corrective action such as the setting
of goals and timetables, targeted advertising and other actions including taking affirmative
action. However, reverse discrimination and quotas are not permissible. These agreements and
their impact are reviewed later in this paper. Thirdly, the Police (Northern Ireland) Act 2000
introduced mandatory quotas regarding the recruitment of Catholics to the police service.
Non EU States
Unlike the permissive nature of positive action under EU law, Canada, the United States and
South Africa have introduced more widespread mandatory laws. The primary area addressed by
the United States and South Africa in its affirmative action laws has been the race ground. In the
United States affirmative action on the race ground was introduced by means of contractual
compliance mechanisms whereby federal contractors were required to take certain positive
measures to combat discrimination and improve the diversity of their workforces. In South Africa
Section 9(2) of the Constitution provides for affirmative action: “…To promote the achievement
of equality, legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken.” This is
supplemented by the South African Employment Equity Act 1998 which sets out an obligation
on the public sector employers of more than 50 employees to ensure that the workforce is
representative of the population with specific reference to ethnic origin, disability and gender.
Canadian legislation uses the term “employment equity” which incorporates a combination of
non-discrimination, positive policies, and practices and reasonable accommodation, with an
emphasis on setting and meeting targets. This legislation does not provide for the establishment
of quotas as a method of affirmative action.
IMPACT OF POSITIVE ACTION
A major problem identified by the European Commission study in relation to the effectiveness of
positive action relates to the lack of systematic monitoring in terms of outputs and outcomes.26 It
is vital with regard to measuring impact to devise an effective model of measuring impact that
goes beyond merely measuring numerical outcomes. As well as measuring numerical
improvements in the workplace participation of under-represented groups, the experience of
25
Fredman, S. “Changing the norm: positive duties in equal treatment legislation” (2005) 12 Maastricht Journal of
European and Comparative Law.
26
“International perspectives on positive action measures.” European Commission 2009.
those persons during the course of employment, rate of promotions and retention within the
workplace should also be measured. It is also important before commenting on the success or
otherwise of positive action measures to be definite about what is being measured and what is
meant by success. The first answer to the question of whether positive action works is that it
depends on the aims and objectives of the positive action measures.
Positive action measures are seen as effective to raise awareness in organisations, have a real
impact on minority groups and improve organisations’ reputation and image while laws, rules
and policies can affect behaviour if there is a cost attached to that behaviour. However the
business case and improvement in financial success is less recognised.27 In a study in the
United States of over 68,000 establishments with over 16 million employees between 19741988 affirmative action measures were seen to improve the employment of minority and female
workers at an increased rate in establishments which were subject to affirmative action under
the contract compliance programme at federal contractors, who are therefore subject to
affirmative action than non-contractors. 28 Affirmative action has also been successful in
promoting the integration of blacks into the American workplace. 29
An interesting jurisdiction to study regarding the question of whether positive actions measures
are effective is Northern Ireland. Historically there have been three main problems in the
Northern Ireland workplace, firstly, the under representation of Catholics, secondly, segregation
in workplaces where there was a mixed religion work force and thirdly, the “chill factor”30
deterring potential applicants.
In 2000, McCrudden et al31 undertook a preliminary empirical assessment of the extent to which
the regulatory regime under the 1989 and 1998 legislation, set out above, contributed to change
in the workplace in the decade from 1990-2000. Their research found that significant changes
occurred in both community balance and employment growth in firms with agreements between
employers and the Fair Equality Commission (known as the Equality Commission since 2000),
both voluntary and legally enforceable agreements, to improve the representation of the minority
religion group, with trends towards a more balanced and integrated employment. Further
research was carried out by McCrudden et al and published in 2009.32 The main findings of the
2009 research were that agreements were positively associated with improvements in fair
employment, agreements were effective in boosting employment and increasing shares in
managerial/professional occupations and improvements in fair employment were not restricted
27
28
“International perspectives on positive action measures.” European Commission 2009.
Leonard, Jonathan S. “The Impact of Affirmative Action on Employment” (1984) 2 Journal of Labour Economics
439.
29
Leonard, Jonathan S. “The Impact of Affirmative Action Regulation and Equal Employment Law on Black
Employment” (1990) 4(4) Journal of Economic Perspectives 47
30
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1.
31
McCrudden, C., Ford, R. and Heath, A. “Legal regulation of affirmative action in Northern Ireland” (2004) Oxford
Journal of Legal Studies
32
McCrudden, C., Muttarak, R., Hamill, H. and Heath, A. “Affirmative Action Without Quotas in Northern Ireland”
(2009) 4 The Equal Rights Review 7.
to regulated employers that had agreements – there appeared to be "spill‐over" effects on
non‐agreement firms such that there was a general move towards fair employment, with a clear
decline in "extreme" firms at both ends of the spectrum.
ARGUMENTS FOR AND AGAINST POSITIVE ACTION
There are a diverse range of arguments in favour of positive action or affirmative action
measures. Such justifications include the need to diffuse social tension,33 achieve social peace
and cohesion,34 business performance, capturing new markets by attracting a diverse clientele,
demand for an increasing labour force, ethics, corporate social responsibility.35 Grosvold et al
identified that diversity in Board membership was required by investors, customers, employees
and other stakeholders and that if a proportion of society was excluded from Board membership
because of gender, then the company’s board is sub-optimal. The wider the talent pool the more
capable the Board should be.36 This argument applies regardless of which under-represented or
excluded group is identified. The business case for diversity is based on research which shows
that heterogeneous groups are more effective and creative than homogeneous ones.37
As discussed earlier, the individual litigation method of enforcement under the standard antidiscrimination legislation is ad hoc and favours those with the relevant resources, compensation
is for the individual and not the under-represented group and it cannot produce significant or
systematic progress 38whereas with the proactive nature of positive action and positive duties
the initiative lies with policy makers and implementers and all those with a right are covered. A
further justification for positive action is that it has been established above that it is a tool for
change.
An interesting question was raised by Stock in 2006 in a paper which challenges the distinction
(and perception of) between quotas for women in employment and for those of disabled
persons.39 Quotas for the employment of war-disabled persons have been in place in Germany
since the 18th Century and have been subsequently extended to disabled persons regardless of
the source of the disability. Stock argues that the distinction between quotas for the two groups
is due to social and political acceptability of providing special assistance to the disabled and
continues that the acceptance of quotas for disabled people means there can be no objection in
principle to the adoption of quotas for women. She concludes that the law treats and it appears
society perceives the criterion “disability” differently from “sex”. This is attributed to the power of
33
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1.
34
Leonard, Jonathan S. “The Impact of Affirmative Action Regulation and Equal Employment Law on Black
Employment” (1990) 4(4) Journal of Economic Perspectives 47.
35
“International perspectives on positive action measures.” European Commission 2009.
36
Grosvold J. Brammer, S and Rayton, B. “Board diversity in the United Kingdom and Norway: an exploratory
analysis.” (2007) 16(4) Business Ethics: A European Review 344.
37
Barmes, L. “Public Appointments and Representativeness” (2002) Public Law 606.
38
Fredman, S. “Changing the norm: positive duties in equal treatment legislation” (2005) 12 Maastricht Journal of
European and Comparative Law
39
Stock, A. “Affirmative Action: A German Perspective on the Promotion of Women’s Rights with Regard to
Employment” (2006) 33(1) Journal of Law and Society 59.
the disability lobby groups and the low impact in reality of quotas for disabled persons, as they
make up a small proportion of the population in comparison to the proportion of women in the
population.
Leonard made an interesting quip when he said that affirmative action doesn’t work so it should
be disposed of, and that affirmative action does work therefore it should be disposed of!40 The
arguments against the use of positive action are also wide ranging. As positive action is used to
address a lack of substantive equality it is almost always confronted by those who are seeking
to defend entrenched positions.41 The arguments against positive action include the negative
perception of forms of preferential treatment, quotas frequently being seen as being preferential
treatment;42 backlash against the supported groups which undermines the purpose of promoting
equality for that group in the first instance; 43 negative impact on recipients such as stigma,
stamping the recipient with a badge of inferiority and devalues their achievements, encourages
failure as beneficiaries have less incentives to work hard and with positive discrimination
employers having to employ those less qualified.44 Professor Kathleen Lynch makes the
interesting point that positive action policies lend credibility to systems that remain structurally
biased against those who are marginalized. Is this justification acceptable for not using such
measures?
There are many barriers to the successful implementation of positive action measures. As with
the implementation of any tool for change it is important that the effect of the measure is
monitored and evaluated in a way that adds empirical value to the process. Monitoring is also a
feature of the statutory obligations of positive duties. However, monitoring and evaluation have
financial costs associated with them and both are seen as expensive in terms of direct finance,
human resources and time. A lack of awareness of the benefits of positive action measures
within the workforce and in the wider society, together with a lack of understanding of the
rationale for positive action measures have been identified by the European Commission as
barriers in this area.45 The European Commission also found that negative attitudes held by
mainstream society as well as stereotypes and prejudices perpetuated by the media were
thought to problematise positive action and render any positive action outcomes as tokenistic. In
the United States in particular, affirmative action is negatively portrayed in the media as a
means of giving opportunities to undeserving and unqualified people. Busby also found that the
reason for “affirmative action” having such negative associations in Canada lie in the United
States’ experience of such programmes.46 The Canadian legislature, when framing its
employment equity provisions and adapting the use of the term employment equity rather than
any of the more established terms such as affirmative action, were swayed by the negative
40
Leonard, Jonathan S. “The Impact of Affirmative Action Regulation and Equal Employment Law on Black
Employment” (1990) 4(4) Journal of Economic Perspectives 47.
41
Allen, R. in “Putting Equality into Practice: What role for positive action?” European Commission 2007.
42
“International perspectives on positive action measures.” European Commission 2009.
43
Lynch, K. in “Putting Equality into Practice: What role for positive action?” European Commission 2007
44
Higginbotham, F. Michael, “Affirmative Action in the United States and South Africa: Lessons from the Other
Side” (2000) 13(2) Temple International and Comparative Law Journal 187
45
“International perspectives on positive action measures.” European Commission 2009.
46
Busby, N. “Affirmative Action in Women’s Employment: Lessons from Canada” (2006) 33(1) Journal of Law and
Society.
perceptions and confusion in terminology and a desire for reasonable debate.47 As discussed
earlier the lack of clarity in the case law and language of the ECJ has been identified as a
barrier to the introduction and implementation of positive action as employers and service
providers fear falling foul of the legislation. There is also the risk that positive action measures
are seen by society as running counter to the merit argument and result in the creation of
undeserving beneficiaries.
An important point that merits attention and a risk which should be addressed in the overall
strategy of improving diversity by using positive action measures is what will happen if
persistent failure to meet targets and goals starts to reinforce stereotypes about the 'inevitability'
of gendered roles and the futility of proactive equality initiatives?48 This matter needs to be
identified at the design stage and questioned at each stage of evaluation.
It is imperative when organisations are implementing positive action measures that there is not
an over-emphasis on process and inputs to the neglect of the outcomes. Busby states that this
reliance on inputs and processes rather than on results in the Canadian legislative model
means that it is too weak and its progress too slow to amount to a success story.49 Another
obstacle identified in the implementation of positive action measures is that such measures can
divide groups that should be campaigning together for social reform rather than clashing over
the justifiability of affirmative action.50
FACTORS IN THE SUCCESS OF POSITIVE ACTION
Allen identifies five factors for the success of positive action measures.51 They are an adequate
analytical framework within which issues of substantive equality can be identified; the supply of
sufficient data or other material to be analysed within that framework; the necessary political will
to drive forward a programme to address substantive equality; a public communications
programme to explain the purpose and need for action and a legal and regulatory framework
which will understand the need for this kind of action and also ensure that the limits within which
such action is to be taken are recognised and enforced without undue restrictions. Other
supporting factors have been identified as leadership from the top of an organisation,52
commitment of those charged with implementation,53 commitment or buy in from management
and involvement at the outset from the target group itself together with the support of the wider
47
Abella, R. Equality in Employment: A Royal Commission Report (1984).
O’Cinneide, C. “Positive Duties and Gender Equality”. (2005) 8 International Journal of Discrimination and the
Law.
49
Busby, N. “Affirmative Action in Women’s Employment: Lessons from Canada” (2006) 33(1) Journal of Law and
Society.
50
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1.
51
Allen, R. QC in “Putting Equality into Practice: What role for positive action?” European Commission 2007
52
McCrudden, C., Muttarak, R., Hamill, H. and Heath, A. “Affirmative Action Without Quotas in Northern Ireland”
(2009) 4 The Equal Rights Review 7
53
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1.
48
society,54 financial resources, well designed positive action programme and constant discussion
about the benefits of diversity. Baxter et al further identified undertaking positive action
initiatives within a strong organisational strategic framework, sound planning and project
management, communication with the right people, the culture of the organisation and
celebrating success.55 The lessons drawn by Leonard were that affirmative action works best
when vigorously enforced and when working with other policies that augment the skills of
members of the protected group.56
THE FUTURE OF POSITIVE ACTION IN EMPLOYMENT EQUALITY
The future of positive action in employment rests on unknown and unquantifiable factors. On the
legislative front there is no immediate proposal to amend any of the European Union equality
legislation, the same applies to Irish domestic legislation and the UK has recently introduced the
Equality Act 2010. There is always the prospect that interesting and challenging litigation will
come before the ECJ in this area, but as discussed earlier the outcome of such litigation may
not always clarity of the boundaries of positive action and in any event the result will be binding
only on the affected parties. Changes, if they are to occur, will be in the arena of expanding the
boundaries of the existing legislative framework or in the social, economic and political fields.
With regard to the social policy and employment fields, as stated by Baxter, marked under or
over representation of specific groups in key functional areas should be questioned57. Rameva
also states that in cases where there are no qualified women for a post the question must be
asked why this is so.58 McHarg recommends that the placing of affirmative action on a
continuum with other forms of social policy has the benefit of making clear that it represents a
social choice and highlights the importance of seeing affirmative action as part of a broader
strategy of social transformation.59
The recommendations of various bodies of research in this area and which may also be applied
to the political arena include a requirement for more explanation and debate as to what is
positive action and its benefits,60 equality of opportunity would need to ensure that all can make
use of the opportunities by the provision of childcare facilities, flexible working, paid parental
leave for both men and women,61 governments should undertake to educate the general public
about positive action in order to address the widespread misunderstandings that appear to exist,
and to facilitate the linking up of various stakeholders already engaged in such measures;
develop evaluation tools, amend national legislation where it prohibits or restricts the opportunity
54
“International perspectives on positive action measures.” European Commission 2009
Baxer, C., Archibong, U., Giga, S. And Kular, R. “Critical Success Factors in the Implementation of Positive Action
in the NHS UK” (2008) 8(2) The International Journal of Diversity in Organisations, Communities and Nations 19.
56
Leonard, Jonathan S. “The Impact of Affirmative Action on Employment” (1984) 2 Journal of Labour Economics
439.
57
Baxer, C., Archibong, U., Giga, S. And Kular, R. “Critical Success Factors in the Implementation of Positive Action
in the NHS UK” (2008) 8(2) The International Journal of Diversity in Organisations, Communities and Nations 19.
58
“Putting Equality into Practice: What role for positive action?” European Commission 2007
59
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1
60
“Putting Equality into Practice: What role for positive action?” European Commission 2007
61
Fredman, S. “Facing the Future: Substantive Equality under the spotlight” University of Oxford Legal Research
Series July 2010 Paper No. 57/2010.
55
to take positive action, and the sensitive handling and careful introduction of positive action
measures.62 The European Commission also recommends that EU institutions and Member
States introduce legal duties to implement positive action measures where necessary to achieve
full equality in practice, they identify the need for positive action to be mainstreamed as part of a
broader normative change and highlight the importance of a firm base of evidence to support
the continuation of positive action.
Baxter et al recommend that prior to the implementation of positive action organisations should
consider the most appropriate form of positive action to take and be clear about what is to be
achieved and how success can be measured63 whilst McHarg advises to be strategic in one’s
approach to justifying affirmative action, choosing a route to justification in light of the relevant
political, contextual and pragmatic considerations.64
A statutory definition of positive action would perhaps remove some of the confusion and fear
surrounding the implementation of positive action measures.
LESSONS AND CHALLENGES FOR POSITIVE ACTION IN POLITICS
There are significant differing views of what is meant by the term “positive action”. Prior to any
meaningful and reasoned debate on positive action in politics it is necessary to firstly set out
what is meant by the term and to give practical illustrations of positive action measures in
reality.
A debate should occur and stakeholder consensus achieved if possible, as to whether political
parties should be allowed to develop their own policies on positive action or if statutory
provisions should be introduced. If statutory provisions are to be introduced should they be of a
permissive nature, as positive action is under EU law with regard to employment and the
provision of services; be in the form of a positive duty to have “due regard” to equality in policies
of the parties or to impose quotas; and should they contain a punitive clause for non-compliance
similar to the US contractual compliance regime? Who would be the enforcement body? A
decision needs to be taken as to what areas of diversity should be included in any positive
action measures in politics. Much of the current public discourse surrounds the gender ground.
It has been demonstrated in the field of employment that the success of positive action
measures are dependent on having evidence to show that positive action is necessary, being
able to communicate the identifiable and verifiable benefits of the positive action in question,
design and implement an effective monitoring and evaluation scheme, commitment and buy-in
by those involved. When discussing equality in politics, do the stakeholders mean equal
treatment, equality of opportunity or equality of outcomes? The stakeholders need to identify the
negative perceptions of positive action, target the relevant media and communicate against
62
“International perspectives on positive action measures.” European Commission 2009
Baxer, C., Archibong, U., Giga, S. And Kular, R. “Critical Success Factors in the Implementation of Positive Action
in the NHS UK” (2008) 8(2) The International Journal of Diversity in Organisations, Communities and Nations 19
64
McHarg, A. and Nicolson, D. “Justifying Affirmative Action: Perception and Reality” (2006) 33(1) Journal of Law
and Society 1
63
them. It has also been established above that the implementation, monitoring and evaluation of
positive action requires resources –financial, human and time – this needs to be factored into
any proposals for the application of positive action in the political arena.
Positive action, with and without quotas does work as illustrated above, it is a proven tool for
change.