Affirmative Action and the Law

Efficacy of National and International Approaches

Erica Howard, Elvira Redondo, Narciso Baez, Erica Howard, Elvira Dominguez Redondo, Narciso Leandro Xavier Baez, Elvira Redondo, Narciso Baez, Erica Howard, Elvira Dominguez Redondo, Narciso Leandro Xavier Baez

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367219536
• eBook ISBN: 9781000192988
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

Affirmative Action and the Law analyses the practical application of affirmative action measures and their efficacy in achieving substantive equality through the lenses of the United Nations human rights machinery and the legal regime and policies implemented in China, India, Central and South America, South Africa and the United Kingdom. The product of a joint research project involving academics from the Brazil, Chile, Mexico, India, Spain and the United Kingdom, the findings identify and reflect on trends emerging from State practice across the world in eradicating structural inequality through special measures for certain designated groups.

The book seeks to provide a coherent and systematic approach to the analysis of special measures in the targeted countries. It also comprises two case-studies with in-depth insights on gender diversity on the boards of public listed companies in the UK and the European Union and the access of persons with disabilities to higher education in Brazil.

The book will be a valuable resource for students and academics in the field of human rights, law, sociology and politics. It will also provide a source of good practice for states and policy makers in the framing of responses to increased inequality at national and international level; and for civil society actors seeking to explore meaningful interaction with a highly controversial topic in society.

Part I
Typology of affirmative action measures

1 Introduction

Elvira Dominguez-Redondo and Erica Howard

General background

This book is the result of a joint research project between Universidade do Oeste de Santa Catarina (UNOESC, Brazil) and Middlesex University (United Kingdom) on affirmative action measures in the UK, South Africa, China, India and Latin America. Academics from the Pontifical Catholic University in Porto Alegre, Brazil (PUCRS), University of Talca (Chile) and University of Chihuahua (Mexico) have also collaborated in this joint effort to analyse affirmative action policies in the countries under review. The first phase of the project culminated in another edited book where contributors reviewed the existing affirmative action measures and how these have developed in the countries chosen for analysis.¹

During the second phase of the project, the scope of the research was expanded to the practical application of affirmative action measures and their utility and efficacy in achieving their aims in the relevant jurisdictions. The researchers involved have focused on the role of temporary affirmative action measures in redressing structural inequalities suffered by designated groups by increasing the proportion of members in these groups in relevant labour, academic, governmental or non-governmental positions where they are underrepresented. This book includes the main conclusions reached by assessing the progress of such legal and policy measures in Argentina, Belize, Brazil, Chile, China, Colombia, Costa Rica, Guatemala, Honduras, India, Nicaragua, Panama, Peru, El Salvador, South Africa and the United Kingdom.

All the countries chosen provide for some form of affirmative action for certain disadvantaged groups in their national laws, but little research has been done into the extent and efficacy of these measures in many of these countries and literature on this remains scarce. Most scholarship (especially in the English language) focuses on the United States, where these measures have been studied, tested and contested at length. Some other countries have also been studied, but these studies often focus on specific and narrow measures, for example, gender-based quotas or projects for indigenous people.

1 Baez, N; Dominguez-Redondo, E. (Eds.) The existence and efficacy of affirmative action measures in UK, South Africa, India, China, Latin America and Brazil. Joacaba: Editora UNOESC, 2018.

This book is divided into three parts with 11 constituent chapters overall. The first part (Chapters 1 and 2) describes and classifies the emerging and/or consolidated typology of affirmative action measures. The research supporting this section seeks to offer a commentary on the extent to which affirmative action forms an integral part of the international norm prohibiting discrimination, reflecting on trends emerging from State practice and opinio juris. The decision to establish affirmative action measures remains a prerogative of the State, but growing international jurisprudence is advocating their adoption, particularly when engaging with African-descent discrimination and discrimination against women. This development seems concomitant to the progressive acceptance of an autonomous right to ‘equality’ rather than its understanding as a principle underpinning the human rights agenda or as an accessory to the enjoyment of other rights, although the scope and concrete meaning of such a right remain controversial. Whether this advancement bears fruits in terms of a more effective enjoyment of human rights, or in saving the human rights discourse currently under attack, remains uncertain.

The second part of this collection (Chapters 3–7) aims at providing a coherent and systematic approach to the analysis of special temporary measures in the targeted countries. The final part of the book (Chapters 8–10) comprises two thematic case-studies seeking to provide insight into the outcomes derived from implementing affirmative actions in concrete areas. This part also has a chapter suggesting an alternative way towards greater equality which can be used to complement affirmative action measures. Chapter 11 contains main conclusions derived from the comparative analysis of the success or failure of affirmative action measures which will be systematically presented in the final, concluding section of the book.

This introductory chapter will start with an overview of the conceptual framework of affirmative action measures for the purpose of this book, followed by the typology of affirmative action measures in State practice. The last part of this introduction gives an overview of the subsequent chapters.

Conceptual framework of affirmative action

State practice reveals a great variety of affirmative action measures in terms of identification of the groups benefiting from them, the ‘soft’ or ‘hard’ approach adopted, the legal framework embedding special measures and the forms of implementation. Moreover, the term ‘affirmative action’ is not the only term used in this context, as, for example, in Europe, ‘positive action’ is more common; international institutions tend to prefer the term ‘special measures’; other terms such as ‘remedial measures’, ‘preferential policies or treatment’, ‘reservations’, ‘compensatory actions’ or ‘distributive justice’ can also be found. These terms are often used as synonyms without much explanation as to what the terms mean and there is, therefore, a lack of unified terminology. In this book, the terms ‘affirmative action’, ‘special measures’ or ‘positive action’ will be used to describe the use of policies, programs, rules and administrative actions that treat members of disadvantaged groups differently to assist in overcoming the obstacles and discrimination they face in contemporary society.²

In simple terms, the objective pursued through the adoption of affirmative action measures is de facto equality. However, here again, there is lack of agreement on what exactly this means and there is confusion about the terms used; for example, terms like ‘equal opportunities’, ‘effective equality’, ‘substantive equality’, ‘factual equality’ or ‘equality in practice’ can all be found in the literature. For a better understanding of the intended meaning, when referring to de facto equality, it is necessary to examine the rationale explaining the creation and development of affirmative action measures.

When States adopt measures with the aim of achieving equality, the first step is usually to adopt legislation which declares that everyone is equal before the law and has a right to equal protection of the law. This includes a right to be treated equally to everyone else who is in the same situation. This is often referred to as formal equality, equality before the law, de jure equality or equal treatment. This concept of equality is based on the Aristotelian premise that like should be treated alike. Therefore, formal or de jure equality lies in the consistency of treatment.

However, looking at equality in this way raises the question: who is like whom? This concept does not appear to take account of or recognise the material differences between people. Neither is there any attention for inequalities and social disadvantages that exist for certain groups in society because of past and ongoing discrimination. For this reason, a more substantive concept of equality as an additional basis for anti-discrimination legislation has been introduced in most countries to correct these inequalities and, thus, aiming for de facto equality³ or equality in practice.⁴

2 O’Cinneide, C. Positive action. ERA, 2012. P. 1: http://www.era-comm.eu/oldoku/SNLLaw/04_Positive_Action/2012_Cinneide_EN.PDF (accessed 6 April 2020).

3 This term is used in Article 4 of the Convention on the Elimination of All Discrimination Against Women which mentions: ‘temporary special measures aimed at accelerating de facto equality between men and women…’.

4 The term ‘equality in practice’ is, for example, used by the European Union in its legislation allowing affirmative action measures, see, for example, article 157(4) of the Treaty on the ­Functioning of the European Union (TFEU). This section starts with: ‘with a view to ensuring full equality in practice…’. The articles regarding affirmative action in the EU anti-­discrimination Directives contain the same words. See further on this: Howard, E. Affirmative action in the UK and in South Africa. In: Baez, N; Dominguez-Redondo, E. (supra note 2, PP. 186–190).

Laws allowing for affirmative action and aiming at substantive equality could fall into either of two types of substantive equality: equality of opportunity or equality of results. Both concepts recognise that some groups cannot reach the situation of ‘being alike’ because of past and ongoing discrimination and thus that applying a formal equality concept to them will not lead to more equality. Laws aiming at a concept of equality of opportunity concentrate on equalising the starting point for everybody, on reaching the point where they are alike and thus can be treated alike. Laws aiming at equality of results concentrate on equalising not the starting point but the end result. Such laws aim to correct the unequal distribution of goods and resources in society and to achieve a more representative participation of all groups in public life.⁵

The objective of affirmative action measures is thus substantive or de facto equality, and this can encompass either or both equality of opportunity and equality of results, depending on how these measures are laid down in legislation. Independent of the objective, the kind of affirmative action this book focuses on involves preferential or more favourable treatment to some groups, and this means that other groups are treated less favourably or unequally. Many affirmative action measures are considered to be going against the idea of equal treatment and are thus seen ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of contributors
• Part I Typology of affirmative action measures
• Part II Analysis of affirmative action measures
• Part III Case studies
• Index