Positive Duties and Gender Equality

AuthorColm O'cinneide
Published date01 December 2005
Date01 December 2005
DOI10.1177/135822910500800206
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 91-119
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
POSITIVE DUTIES AND GENDER EQUALITY
COLM
O'CINNEIDE
University College London, UK
ABSTRACT
The
imposition since 1998
of
a variety
of
positive equality duties
upon
public
authorities has
attracted
comparatively little academic attention. However, these
duties are a central
part
of
current
government equality initiatives, increasingly
constitute a
major
part
of
the
work
of
the
UK's
equality commissions,
and
have
been described as
an
essential
part
of
a new
'fourth
generation'
of
equality legisla-
tion.
It
now
appears
likely
that
a positive
duty
to
promote
gender equality will
soon
be imposed
upon
public authorities, which will complement similar race
and
disability duties. Will the
introduction
of
this positive gender equality
duty
add
to,
detract
or
complement existing
statutory
provisions? Given the
danger
that
'soft
law' initiatives
may
undermine existing anti-discrimination controls,
will the
duty
provide a clear steer
to
public authorities,
or
will
it
lack teeth,
substance
and
direction,
and
possibly even prove counter-productive?
Such positive duties are designed
to
compensate for the limitations
of
existing
anti-discrimination law, by requiring the taking
of
positive steps to
promote
equality
and
eliminate discrimination,
rather
than
just
compelling a reactive compliance with
the letter
of
the (equality) law. The justifications
in
principle for the introduction
of
such duties are strong: for the first time, the introduction
of
a positive gender
duty
will impose a clear legislative obligation
upon
public authorities
to
adopt
a
substantive equality
approach
and
to
take proactive action
to
redress patterns
of
disadvantage linked
to
gender discrimination. Serious concerns
do
however exist
as
to
the extent to which such duties
can
be enforced,
and
the danger
that
they
will simply encourage greater bureaucratic activity
at
the expense
of
real change.
The proposed gender duty, as with the
other
duties
that
have been introduced, is
no
panacea. Nevertheless, it does constitute a
good
start,
can
serve a useful function
by
empowering public authorities
to
take positive action,
and
if
effectively used will
be a very valuable
point
of
pressure
to
push
for better things.
INTRODUCTION
The
imposition
since 1998
of
a
variety
of
positive
equality
duties
upon
public
authorities
has
attracted
comparatively
little
academic
attention.
However,
these
duties
are
a
central
part
of
current
govern-
ment
equality
initiatives,
increasingly
constitute
a
major
part
of
the
work
of
the
UK's
equality
commissions,
and
have
been
described
as
an
essential
part
of
a
new
'fourth
generation'
of
equality
legislation
92
(Hepple,
2000:
para.
1.33,
hereafter
The
Hepple
Report).
They
are
intended
to
ensure
that
public
authorities
adopt
a
proactive
approach
to
achieving
substantive
equality
of
opportunity,
via
a
process
that
involves
the
participation
of
disadvantaged
groups.
The
Queen's
Speech
in
November
2004
contained
an
announcement
of
the
government's
intention
to
introduce
a
gender
equality
duty
(along
with
a
disability
duty)
to
complement
the
existing
race
equality
duty
and
to
give effect
to
a
commitment
entered
into
some
considerable
time
ago
(UK
Cabinet
Office,
30
November
1999).
With
the
inclusion
of
this
gender
duty
in
the
provisions
of
the
Equality
Bill
introduced
in
March
2005,
and
the
insertion
of
a
similar
disability
duty
in
the
Disability
Discrimination
Act
2005,
two
new
positive
duties
will
soon
be
added
to
the
existing
set
of
legislative
and
policy
tools
designed
to
combat
gender
inequality.
This
gives rise
to
a
set
of
theoretical
and
practical
questions.
Will
a
positive
gender
equality
duty
add
to,
detract
or
complement
existing
statutory
provisions?
How
will
it
link
to
mainstreaming
initiatives?
Will
it
prove
to
be
an
effective
mechanism
for
encouraging
genuine
engagement
with
gender
equality
issues,
or
will
it
just
contribute
to
a
growing
'tick-box'
mentality
and
the
bureaucratisation
(in a
Weberian
sense)
of
equality
initiatives?
Given
the
unresolved
issues
that
surround
the
question
of
what
'equality
of
opportunity'
requires,
can
the
duty
provide
a
clear
steer
to
public
authorities,
or
will
it
lack
teeth,
substance
and
direction?
All
these
questions
are
particularly
pertinent,
given
that
one
of
the
intended
key
functions
of
the
proposed
new
Commission
for
Equalities
and
Human
Rights
(CEHR)
will
be
to
enforce
the
positive
duties,
and
new
extended
powers
are
to
be
given
to
the
new
Commission
to
enable
it
to
play
this
role.
This
may
divert
some
focus
and
resources
away
from
the
enforcement
of'conventional'
anti-discrimination
legislation,
given
the
limited
resources
that
will
inevitably
be
available
to
any
equality
and
rights
commission
(O'Cinneide,
2002).
Can
the
duty
mechanism
deliver
the
necessary
results
to
make
this
resource
commit-
ment
worthwhile?
THE
LIMITS
OF
EXISTING
ANTI-DISCRIMINATION
LAW
The
introduction
of
positive
duties
stems
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.
Partially
this
is
due
to
the
type
of
discriminatory
behav-
iour
with
which
sex
discrimination
legislation
and
its
counterparts
across
the
different
equality
grounds
are
primarily
concerned:
their
main
focus
is
on
tackling
discrete
and
abnormal
acts
of
discrimina-

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