The Way Forward — Positive Discrimination or Positive Action?
| Author | Howard Davis,Sharon Roberts,Michael Bennett |
| Published date | 01 March 2005 |
| Date | 01 March 2005 |
| DOI | http://doi.org/10.1177/135822910500600303 |
International Journal
of
Discrimination and the Law, 2005, Vol.
6,
pp. 223-249
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
THE
WAY
FORWARD-
POSITIVE DISCRIMINATION OR
POSITIVE ACTION?
MICHAEL
BENNETT*, SHARON ROBERTS*
AND
HOWARD
DAVIS**
*Southampton Institute, UK
Bournemouth University. UK
ABSTRACT
The
focus
of
this article
is
an
evaluation
of
the Race Relations (Amendment)
2000, which imposes duties
on
public authorities,
and
the Sex Discrimination (Elec-
tion Candidates) Act 2002, which gives opportunities
to
political parties over the
selection
of
candidates.
Both
of
these Acts help
to
move anti-discrimination law
in the
United
Kingdom
away from a concentration
on
remedies for inconsistent
treatment
towards the acceptance
of
the need for positive measures aimed
at
both
protecting
and
also advancing the position
of
an
under-represented group.
The
article suggests
that
the positive measures these Acts exemplify
may
lead
to
conflict
with the
background
principle
that
individuals should be treated with equal concern
and
respect.
The
article suggests
that
this principle underlies the limits
to
positive
action in employment schemes
under
European
Union
law (the article includes a
consideration
of
whether such limits apply
to
election candidacy); it goes
on
to
consider the principle in respect
of
the limits
to
positive action authorised by these
two Acts
that
may
follow from the
The
article concludes
by considering whether the new legislation provides acceptable models for the
future.
INTRODUCTION
Important
to
the
1970s
discrimination
legislation
are
the
notion
of
formal
equality
and
the
rights
of
an
individual
to
enforce
the
statutes.
The
law's
demand
for
formal
equality,
i.e.,
consistent
treatment,
has
done
much
to
eradicate
the
more
blatant
forms
of
discrimination.
The
individual's
right
to
bring
an
action
meant
those
actually
suffering
discrimination
could
seek
a
remedy
and
not
wait
for
a
public
body,
such
as
the
Race
Relations
Board,
1
to
act
on
their
behalf.
The
gains
for
the
anti-discrimination
cause
are
clear,
but
so
are
the
limits;
to
be
effective
fault
must
be
proved
in
each
case
and
there
must
be
willing
complainants.
Different
strategies
are
now
in
place;
the
new
approach
is
to
place
legal
power
or
duties
on
organisations
that
are
in
the
best
position
to
bring
about
change.
These
positive
measures
are
the
subject
of
this
article.
224
The
move
to
these
positive
measures
does
not
deny
the
successes
of
the
existing law,
but
does
show
a
frustration
with
the
rate
of
change.
Thus
we
are
constantly
reminded
that
in
spite
of
formal
equality
and
some
improvements,
women
and
various
ethnic
minority
groups
are
still
under-represented
as
regards
many
better
paid
jobs.
Therefore,
there
is a
growing
interest
in
the
equality
of
results.2
This
includes
concern
as
to
the
participation
of
groups
in
the
workforce
and
their
access
to
education
and
services.3
Recently
Hugh
Collins
has
argued
discrimination
law
might
be
justified
by
the
reduction
of
social exclu-
sion;
thus
society
should
concern
itself
with
particularly
disadvantaged
groups
and
should
seek
to
bring
them
up
to
minimum
standards.
4
The
problem
with
seeking
equality
of
results
is
that
the
policy
may
lead
to
conflict
with
formal
equality.
This
would
occur
where
an
under-
represented
group
is
preferred
for
entry
into
a
prestigious
profession
and
another
group,
perhaps
white
males,
suffer
discrimination
as
a
result.
In
grappling
with
this
problem,
particularly
with
reference
to
the
affirmative
action
in
American
universities,
Ronald
Dworkin
argued
that
the
rejected
non-black
person's
rights
were
not
necessarily
infringed.
5
The
non-black
person
did
not
have
an
absolute
right
to
equal
treatment,
but
he
did
have
an
absolute
right
to
treatment
as
an
equal
and
thus
the
right
to
be
treated
with
the
same
concern
and
respect
as
anyone
else.
His
loss
must
be
treated
as
a
matter
of
concern,
but
that
loss
may
be
outweighed
by
benefit
to
the
community
as
a
whole.
Dworkin
argued
that
in
such
cases
the
interests
of
diversity
and
redres-
sing
the
absence
of
blacks
in
senior
positions
were
good
reasons
to
continue
affirmative
action
within
universities.6
Dworkin's
approach
does
not
tell
us
when
community
interests
should
prevail,
but
he
is
clear
that
the
individual
subject
to
such
discrimination
should
not
be
treated
arbitrarily
and
should
be
treated
with
concern
and
respect.
This
paper
will
consider
the
positive
measures
introduced
by
the
(RR(A)A)
and
the
Sex Discri-
mination
(Election
Candidates)
Act
2002
(SD(EC)A)
and
how
they
con-
flict
with
formal
equality.
It
will
look
at
how
European
Community
(EC)
law
has
in
the
past
dealt
with
positive
measures
and
how
it
is
likely
to
approach
them
in
future.
It
will
also
test
the
new
statutes
against
human
rights
standards
as
given effect
through
the
(HRA).
In
conclusion,
the
paper
will
consider
whether
individuals
suffering
as
a result
of
positive
measures
will
be
treated
with
concern
and
respect,
and
gauge
whether
the
statutes
provide
models
for
the
future.
POSITIVE
MEASURES
AND
THE
NEW
LEGISLATION
United
Kingdom
legislation
assures
formal
equality
through
the
con-
cept
of
direct
discrimination.
This
occurs
according
to
section
l(l)(a)
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