Home

Affirmative action: friend or foe?

Affirmative action refers to policies and legislative measures that take into consideration factors such as gender, religion, race or colour, and that tend to correct certain social imbalances by promoting an underrepresented group using different tools.

Leyla-Denisa Obreja
16 April 2014

In today’s literature and discussions, the concept is regarded as either a justice seeking device or a failure in the system due to the fact that “it results in reverse discrimination and lowers the qualifications of those selected under the policy”. In a search for a definition, one easily stumbles into labour law issues, since affirmative action is mainly associated with the establishment of quotas, by which a certain percentage of jobs must be allocated to women, members of a certain ethnic group, people with a certain nationality…etc.

Moreover, these policies also affect education. In Romania, for example, a certain percentage of admissions to higher education is reserved for the Roma people.  These practices can be observed also in Brazil or the United States, although in the latter, the situation is obscure due to constitutional challenges that were invoked in certain cases such as Grutter v. Bollinger.

These corrective policies are partially legitimate due to the lack of limitations in the definitions that arise in different international instruments. Although they are generally regarded as temporal, the specific limitations of affirmative actions were never defined and neither were the social areas of their effective impact. In the Handbook on European Non-discrimination Law it is mentioned that affirmative action should “function as a short-term and exceptional mean”.

It is said that today, affirmative actions are insufficient, due to: 

  • The absence of a legal definition in international treaties
  • The absence of legally determined prerequisites and conditions
  • The inexistent clarification and limitations of the operating time-frame
  • The lack of a prototype for measuring the results and effects of these policies

It is my personal belief that corrective policies should not interfere with fundamental rights and criminal law but should be characterized by socio-economic interference. It appears to me that the best interpretation that could limit states'margin of appreciation is one linking the need for differential treatment to a scarcity of goods and rights. The prerequisites of affirmative action should then be:

  • A situation of quantitative imbalance for a certain underrepresented group, determined by a disproportionate distribution of rights and goods
  • An objective legal impossibility of accessing those goods and rights by the underrepresented group or an impractical legal machinery to help them access such goods and rights
  • A casual link between the differential treatment to be accorded and the shortcoming of the legal system that should be corrected by the policy.
  • Sufficient proof based on sociological predictions that the policies would be effective in assuring an equal access to rights and goods.

Affirmative action has brought a wide recognition of the separation between women’s work life and private life and in the employment areas, incentives and trainings helped smooth the progress of including women in the labour market.

The debate regarding the implementation of the policies and their reversed discrimination effect as well as the compatibility with the principle of equality before the law remains open on a transnational level. We can’t know for sure for how long these measures will be taken and what long-term impact they will have on the contours of a new definition of differential treatment, whether domestic or international.

What we do know is that affirmative action is becoming part of modern international law and unlike during the classical period, this one is characterized by the international organizations’ endorsement of differential treatment. Since affirmative action is present mostly in General Comments and Recommendations that are not treaties and therefore, do not possess a legally binding character, it is questionable whether states will achieve the non-discrimination goals set in different treaties.

For those states who decide to follow the guidelines contained in these non-binding documents due to their interpretative authority, it is necessary to create a strict set of rules that would determine when such measures are objectively needed and justified.

Clearly defined and lawfully implemented, corrective policies have the ability to change the discriminatory landscapes of states. Maxwell Chibundu argues in ”Affirmative action and International Law” that there is a need for the codification of affirmative action as to make it part of the international law doctrine, for it possesses “pragmatism and moral strength’’ along with the traits of a just logic of redistribution. He also warns us of the fact that the ability of these policies to influence change depends on the power struggles and relationships that delineate each society.

Another problem that is yet to be addressed relates to the social support and information revolving around affirmative action. There are no sufficient national surveys to reflect attitudes towards racial or gender corrective policies or the difference between those and any meritocracy. In the US, a small number of studies have concluded that women and African-Americans are more likely to sustain the ideology of the state’s corrective duty but there is not enough data to predict gender-related positive action positions.

If affirmative action becomes a fair distribution tool and is properly promoted by international law, not only will it shape non-discrimination but it has the power to consolidate development strategies that are more likely to generate economic equity and respect for social, economical and cultural rights.

 

Stop the secrecy: Publish the NHS COVID data deals


To: Matt Hancock, Secretary of State for Health and Social Care

We’re calling on you to immediately release details of the secret NHS data deals struck with private companies, to deliver the NHS COVID-19 datastore.

We, the public, deserve to know exactly how our personal information has been traded in this ‘unprecedented’ deal with US tech giants like Google, and firms linked to Donald Trump (Palantir) and Vote Leave (Faculty AI).

The COVID-19 datastore will hold private, personal information about every single one of us who relies on the NHS. We don’t want our personal data falling into the wrong hands.

And we don’t want private companies – many with poor reputations for protecting privacy – using it for their own commercial purposes, or to undermine the NHS.

The datastore could be an important tool in tackling the pandemic. But for it to be a success, the public has to be able to trust it.

Today, we urgently call on you to publish all the data-sharing agreements, data-impact assessments, and details of how the private companies stand to profit from their involvement.

The NHS is a precious public institution. Any involvement from private companies should be open to public scrutiny and debate. We need more transparency during this pandemic – not less.


By adding my name to this campaign, I authorise openDemocracy and Foxglove to keep me updated about their important work.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email

Comments

We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData