Changing the Norm: Positive Duties in Equal Treatment Legislation
| Date | 01 December 2005 |
| Published date | 01 December 2005 |
| DOI | 10.1177/1023263X0501200403 |
| Author | Sandra Fredman |
| Subject Matter | Article |
CHANGING THE NORM: POSITIVE DUTIES IN
EQUAL TREATMENT LEGISLATION
SANDRA FREDMAN*
ABSTRACT
This paper assesses the emergence of a new proactive model to achieve gender equality, and
compares it with the more established complaints-led model based on individual rights.
While transcending many of the weaknesses of the individual complaints model, the proactive
model remains ambiguous in many crucial respects, particularly as to its objectives, its use of
participation, and how compliance is to be achieved. The paper aims to shed more light on
these key aspects by drawing on the experiences of such models in Canada, Northern Ireland,
Britain, and the EU itself. This demonstrates that the location of proactive strategies on the
borderline between law and politics makes them highly dependent on political will. The key
challenge is therefore to ensure that proactive strategies are based on a recognition that
equality is a fundamental right, not a discretion, without reverting to individualised
complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we
might achieve a fundamental and non-derogable core of rights within a proactive model.
Two different models are emerging for the achievement of equality: an individual
complaints led model based on a traditional view of human rights; and a proactive model,
aiming at institutional change. This paper aims to compare and assess these two models
in the context of the EU. I argue that while the proactive model has important advantages
over the more established individualised model, its weakness lies in its basis in policy
rather than fundamental rights. This leaves proactive models highly dependent on
political commitment and vulnerable to the vagaries of political change. The key
challenge is therefore to ensure that proactive strategies are based on a recognition that
equality is a fundamental right, not a discretion, and to structure the duty round the
concept of a fundamental right, without reverting to individualised complaints
mechanisms with all their inbuilt weaknesses.
12 MJ 4 (2005) 369
* Professor of Law, Oxford University, UK. I am very grateful to Tammy Hervey for her very helpful
comments on this paper, and to the participants of the Gender Equality Conference in the Hague in 2004
for their valuable input.
370 12 MJ 4 (2005)
In the first part of the paper, I examine the traditional model of individual rights,
highlighting its weaknesses in the context of gender equality. Part II examines the newly
developing proactive model and the particular challenges it poses. This section draws on
the experience of other jurisdictions to substantiate the points. I focus in particular on
pay equity legislation in Canada, the race equality duty in Britain; the fair employment
legislation and positive duty on public authorities in Northern Ireland; and the Open
Method of Co-ordination in the EU as it relates to employment and social inclusion. I
consider three particular aspects of the model: namely, its aims and objectives; the role of
participation; and regulatory and compliance mechanisms.
Part III turns to the role of each model within EU law. The first approach is found
within the traditional lexicon of Treaty provisions and directives, covering both equality
as such and flexibility. The second approach is found in policy documents, and soft law,
and has flourished in the moist soil of the new methods of governance so popular in
current EU structures. I will look particularly at gender mainstreaming and the European
Employment Strategy (EES). This section highlights some of the weaknesses in these
strategies, in particular the ambiguity as to aims and objectives, and the difficulties
experienced in separating strategies from outcomes. I conclude by considering how we
might achieve a fundamental and non-derogable core of rights within a proactive model.
§1. THE TRADITIONAL PARADIGM: INDIVIDUALISM
UNRAVELLED
The traditional paradigm of rights is premised on a particular view of the relationship
between the State and the individual. On this view, the function of human rights is to
protect the individual against interference by the State in his or her individual liberty.
Thus rights are vested in individual subjects, and aim to restrain the State. Remedies ar e
therefore only available if an individual victim can prove that her right has been breached.
Remedies are retrospective, individual and based on proof of breach, or ‘fault’. Courts are
seen as the primary means of enforcing rights and it is generally left to the individual to
take the necessary steps to enforce her right. Corresponding to this paradigm is also a
particular view of equality as a negative duty, restraining the State or private individuals
from discriminating against individuals. Duties of restraint are enforceable only on proof
of breach by an individual victim through litigation in court, and the remedy is generally
retrospective, in the form of compensation for the victim.
Also central to this paradigm is a specific view of democracy, based on a
representative legislature. This view of democracy sees the formal role of individual
citizens as almost exclusively limited to voting in periodic elections. Setting norms is the
function of the elected legislature, subject to constitutional limits. Enforcing norms is the
function of the executive backed up by the courts; and in modern representative
democracies, norm setting is frequently expressly delegated to the executive within
Sandra Fredman
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