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.