Does Affirmative Action Create Unfair Advantage?

Dimitrina Petrova - 18th June 2014

Affirmative action, also known as positive action, is a controversial issue in many contexts.

For example, Black economic empowerment and employment equity measures have come under attack in South Africa; racial criteria in university admissions in the USA have been contested in the courts; constitutional provisions in Malaysia favouring Bumiputra are said to have outlived their legitimacy and to be creating unfair privileges; and in Britain, the public sector equality duty is said to favour some disadvantaged groups at the expense of others.

As with many expressions that dwell in both political and legal quarters, have different meanings in different contexts and whose meanings have changed over time, “affirmative action” is controversial at two levels. At the more superficial level, disagreement is due to the ambiguity of the term: once a strict definition is adopted, disagreement about the meaning of words can disappear. At a deeper level, having agreed the meaning of words, people can then truly disagree about affirmative action because they have differing notions of fairness and justice, and thus different political attitudes, whether conscious or not.

But it is safe to assume that whatever our political values, we all oppose the creation of unfair advantage: this is our common ground. From here, we will try to identify principles and criteria for the legitimate use of affirmative action. EU law allows “special measures providing for specific advantages in order to make it easier for the underrepresented [group] to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers”. But are those aims sufficient? It would be interesting to see if experts could agree an over-arching purposive principle, for example, that affirmative action is justified so long as it has significant positive results in advancing equality?

Provided we agree at this very general level, the question is how such a broad principle can be translated into specific policy guidance. When considering various “special measures”, such as quotas, reserved places, targets, preferences for a limited period, etc., how do we ensure that they are proportionate to the legitimate aim of advancing equality? Another tricky issue is how to define the ground for the preferential measure, so as to reflect the reality of inequalities? Is one characteristic, say ethnicity, or religion, taken alone, always appropriate? For example, if Suni Muslims are excluded from political participation, and their relative wealth or poverty does not matter, it may be justified to tie the positive measure to religion alone. But if poor Roma children in Eastern Europe face obstacles to accessing pre-school, and the same is true for poor non-Roma, would it be fair to base a positive measure on ethnic criteria? How much should the overlap between ethnicity and poverty matter for our affirmative action criteria? In other words, how does one ensure that justice for groups does not create injustice for individuals? Or is the lack of such a balance a part of the price?

The 2008 Declaration of Principles on Equality stated: “To be effective, the right to equality requires positive action. Positive action, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and to accelerate progress towards equality of particular groups, is a necessary element within the right to equality.” This principle, in my view, is a game changer. It reflects a departure from the notion of formal equality, i.e. identical treatment which could be complemented by the occasional exception, in the form of affirmative action (which is tolerated rather than due, and always open to attack by aggrieved individuals). With such a departure, the destination is a right to substantive equality which requires positive action. It transforms the latter from an exception to a necessary element within the content of the right to equality.

From this perspective, our work at The Equal Rights Trust has provided abundant evidence that the bigger problem around the world today is not what is happening, but what is NOT happening: the scarcity of affirmative action. The damage done by the occasional abuse of positive action (in Malaysia, for example), is dwarfed by the damage done by the persisting abstention from positive action, which perpetuates and entrenches the power imbalance everywhere. If the growth of inequality is increasingly acknowledged as one of the biggest challenges of this century, affirmative action can no longer remain an afterthought.

 

This post is an abstract from the Equal Rights Trust Discussion Panel on Affirmative Action, which will take place on 19 June at UCL Faculty of Laws. For more information, please click here.

Author profile

Dr Dimitrina Petrova is the Executive Director of the Equal Rights Trust.

Citations

Dimitrina Petrova, “Does Affirmative Action Create Unfair Advantage?,” (OxHRH Blog, 18 June 2014), <http://humanrights.dev3.oneltd.eu/?p=11589> [date of access].

Comments

  1. Andrew says:

    All discrimination is positive if you are the beneficiary and negative if you are not!

    When push comes to shove, to appoint or promote or choose for a place in higher education the less-qualified over the more-qualified candidate is wrong, wrong, wrong, whatever the motive.

    It is often also impractical. If you have a “target” of x% for women and y% for black people and your best two candidates are a black man and a white woman, who trumps whom? Is it a matter of which target you are further from meeting?

  2. Shaza says:

    I believe affirmative action does create an unfair advantage. For example, in a situation where a company is seeking to employ a suitable candidate that may not be necessarily meet the criteria that is required; the company policy may be to advance affirmative action, meaning, their preference will be given to a candidate from a socially disadvantaged group rather than judged on individual capability. These are the ethical implications of affirmative action polices when hiring people. I refer to this as preference hiring policies; a preferential treatment; and discriminating in favour of the under-represented; which has been treated unjustly in the past.
    It is unfair to those candidates from a traditionally advantaged group, if their merits and qualifications are bypassed in favour of those from a socially disadvantaged group. It is unethical to discriminate against someone on the basis of their belonging to a particular group in the past. It could be considered unjust to judge people based on the group they are allocate them to; people, rather, should only be judged on their individual qualities and abilities (Scholes, 2013).
    Your conclusion of your argument “is a controversial issue in many contexts” does not follow the premises of “affirmative action; is also known as a positive action”. I agree that affirmative action correlates to positive actions, as it is an action to provide special measures to overcome discrimination and to enable less-advantage groups to achieve equality with other group in our society. However, I have to argue your conclusion, which does not relate to your premises. Why is it a controversial issue in many contexts when it is actually an action to justify the unfairness? Positive action or also referred to as a weak affirmative action, is not discriminatory; it is a special measure to assist certain groups to achieve equality. I do not think it is going to be a controversial issue, unless using a strong affirmative action policy. The term of a strong affirmative action that creates an unfair advantage, and attempting to show that two wrongs don’t make a right, especially when race and gender are the factors of the preference. There are criticisms toward strong affirmative action such as inefficiency, unfairness etc. This critique does not apply as much as it does to a weak affirmative action. Positive action is necessary to achieve equality, the goal for the action is to maximise happiness and minimise harm by providing a measure to equality. Utilitarian ethical theories requires us is to try to maximise happiness and minimise harm “ An action is not morally good simply if it produces more good than harm – it must be likely to produce more good (or less harm) than available alternatives” (Scholes, 2013).
    Affirmative action is more about ethical issues rather than legal and political equity measures as you claim in this article. However, in the case of constitution Malaysia favouring Bumiputra (local Malay Malaysian), the constitution provision is to include affirmative action in their policies; this may be a political equity measure. I agree, it has to be carried out while the Malaysians’ have the power to exercise these policies; they have to protect their own ethnicity/race from being taken over by non-Bumiputra. The morally right intention is that Malaysia is to encourage Bumiputra to be competitive with non-Bumiputra, so that they can excel and be a role model in their community. The utilitarian ethical theory states ‘it is permissible to treat people merely as representative of particular groups to achieve the goal of affirmative action, if the goals produce the most good.’ It is ethical to treat people merely as a representative of their particular group, if an action doing this is mostly likely to produce the best consequences, in comparison with other alternatives (Scholes, 2013).
    You claim that “affirmative action” is controversial at two levels, first, at more superficial level and second, at a deeper level. I think whatever level the controversial dilemma is at; it only changes how the affected individual perceives the affirmative action as. Most of the issues of affirmative action are directly related to the perception of the public as a general misperception of the policy. I first perceived affirmative action as purely a revenge policy for the benefit and satisfaction of the individual or group who invented it. I call it tit for tat, readdressing the injustices caused by past discrimination and demanding access to equality as compensation for what they have lost or suffered in the past.
    It is a challenging task to identify the right principals and criteria to legitimate the use of affirmative action. The ethical theory of utilitarianism can allow the moral validity of certain concepts of rights and justices. If this is true then the general respect for rules using these concepts can bring about the greatest overall good. Utilitarians see concepts of rights as good only in an instrumental sense – that is, in so far as using concepts of right helps maximise happiness and minimise suffering, considering equally all people affected (Scholes, 2013).
    In reality it is hard to find the perfect guideline of equality measurement for affirmative action. Positive action or affirmative action is an action to seek special measures of equality and important tool to reduce the impact of discrimination. Race and gender are the common factors causing the continuation of a controversial debate on the use of affirmative action policies. I think the issues of affirmative action will never end. Either losing or keeping the affirmative action will always result in racism, sexism and unfairness.

  3. Shaza says:

    References
    Scholes, V. (2013) Open Polytechnic of New Zealand. (2015). Module Two and Module Three. 71203 Business ethics. Lower Hutt. New Zealand.

  4. Sarah says:

    If we examine affirmative action from an educational standpoint, often we find many of these so-called ‘disadvantaged’ groups have strengths in more practical career pathways rather than conventional academic pathways. The mainstream education system has been deliberately designed to fail the majority of these people, whilst allowing a significant minority of these people to succeed (those of whom who later on become the ‘elite’ representatives of this particular ethnic group). Instead of trying to give disadvantaged groups a head start, how about focusing most affirmative action to be geared towards allowing these groups to excel and succeed in their passions and strengths?

    If we were to examine this scenario from a New Zealand context focusing on Maori and Pacific Island groups, often we will find, the majority of Maori and Pacific Islanders are more practical in trade skills like plumbing, carpentry etc. If the New Zealand government were truly committed to making affirmative action more productive, they surely would not let these disadvantaged groups waste their time in the classroom memorising textbook theories; instead the Ministry of Education would establish vocational high schools to train these students in skills that interest them so they can enter the workforce and succeed in their passions. So as not to marginalise other Maori/Pacific Island students from succeeding in alternative pathways, fewer opportunities for affirmative action will still be available for students who have the potential to succeed in more academic pathways.

    Of course for every country, the situation is different. In a nutshell, if affirmative action does not support the strengths of disadvantaged groups, then affirmative action is simply counterproductive and delusional.

  5. Tracey says:

    Hello Dr Petrova
    I am writing this as part of a Business Ethics assignment for the Open Polytechnic and would like to comment on some of the points you have raised.
    I agree with your comment on the “legitimate use of affirmative action”, however the use of strong affirmative action policies has been taken to mean that people should be employed based on their race or religion to fulfil a quota or abide by a diversity policy, rather than in the spirit of the initial intention of “affirmative action”.
    The first reference to “affirmative action” is in 1961 when President John F Kennedy signed Executive Order 10925 which required government contractors to “take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, or national origin.” (“Executive Order 10925” (part III, A, s301), n.d.). The wording is “without regard” to their race, etc – therefore people’s race or religion should not be a factor in the hiring decision (effectively being “colour-blind”), and race should not be used to positively discriminate to fulfil arbitrary quotas. The intention of this policy was that people should be employed on their merits, whatever their race, colour, etc, allowing the organisation to employ the best person for the job. Of course, the implementation of this policy was due to the rampant discrimination against African Americans in the United States at that time, and was “focused on improving educational and employment opportunities for African Americans” (“Republican Views,”, n.d.), but if affirmative action is about being “colour-blind” then this should ensure that the best person is employed whatever their race or religion, rather than imposing quotas or diversity policies on organisations. This is also Aristotle’s teleological reasoning, that discrimination is fine to use as long as it is “relevant to the appropriate excellence” or telos (cited in Sandel, 2011), and discrimination occurs according to merit – therefore the best person for the job should get it.
    I also disagree with your view that affirmative action can impact on the challenge of inequality (“If the growth of inequality is increasingly acknowledged as one of the biggest challenges of this century, affirmative action can no longer remain an afterthought”). Used in its current race-based form, affirmative action will only be used to continue the segregation and division of people, as those who don’t benefit from affirmative action may feel disadvantaged themselves (feel that it’s “unfair” [Open Polytechnic, 2015]), and those who benefit from it might feel like they are “appointed on the basis of being members of the disadvantaged group” (Open Polytechnic, 2015), it could damage their self-esteem, and also it could come to be expected and be relied on as a handout so there will be less need to try to better themselves. You note EU law allowing “special measures” to “make it easier … to pursue a vocational activity”, however there could be just as much need for others who aren’t racially discriminated against, due to their socio-economic status.
    A less divisive approach is the use of poverty- or income-based affirmative action policies for education (as you alluded to in your example of the Roma children). This will provide everyone with equal opportunities to earn an education, and will give the opportunity to raise the standard of education for all races. As “disadvantaged” races are more likely to be in lower socio-economic groups, a poverty/income-based affirmative action policy would help to redress the balance for those peoples as a side-effect.
    Increasing the standard of education among disadvantaged people will mean that they become more qualified and are more likely to become those employed based on their own merit when they enter the workforce. Of course, a longer-term view would need to be taken of how to correct the imbalance using this method, but it would be a better solution than the quick fix of forcing organisations to employ based on race, rather than aptitude and ability.
    I also think that your view that “the persisting abstention from affirmative action … perpetuates and entrenches the power imbalance everywhere” is a bit excessive and unreasonable. There are many contributing factors to the imbalances of power throughout the world, and asserting that the use of affirmation action would contribute largely to the resolution of this imbalance is a stretch.
    To sum up, I do think that the use of strong affirmative action (if not poverty-based) creates unfair advantage, and there are other approaches which can be taken to attempt to redress the balance of power in the world.

    References:
    • Open Polytechnic of New Zealand. (2015). Module 3. 71203 Business Ethics. Lower Hutt, NZ: Vanessa Scholes.
    • Executive Order 10925. (n.d.) Retrieved 24 January, 2016, from https://en.wikisource.org/wiki/Executive_Order_10925
    • Republican Views on Affirmative Action. (n.d.) Retrieved 24 January, 2016, from http://www.republicanviews.org/republican-views-on-affirmative-action/
    • Sandel, M. (2011). Justice: What’s the right thing to do? Episode 09: “Arguing Affirmative Action” [Video]. Video posted to http://www.justiceharvard.org/2011/02/episode-09/

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