The concept of “formal” equality is an expression of the Aristotelian principle that “treats like cases as like”. However, formal equality may not be sufficient to provide “equality in practice” or “substantive equality.” The implementation of substantive equality often requires the adoption of compensatory policies or measures designed to correct the effects of discrimination suffered by various population groups in the past or present. Such compensatory measures are known as affirmative or positive action. The term “affirmative action” had its beginnings in the 1960s in the USA, as a response to the racial segregation rooted in the country’s history and still prevalent in that decade. In the European Union, the concept of positive action appeared in the 1970s, and was initially associated with promoting gender equality, and subsequently with “substantive” equality of men and women in the workplace. In this chapter the legislative framework and the case law of the Supreme Court is examined in respect to affirmative action in the United States followed by the corresponding European Union legislation and the case law of the ECJ, attempting, finally, to give a comparative review of the law of affirmative action. This study should help us, through the spectrum of Comparative Law, to better understand not only the concept of social rights but also the different values and different perceptions of the law prevailing in different legal cultures.
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The concept of ‘formal’ equality is an expression of the Aristotelian principle that ‘δειν τοις ίσοις ίσον είναι’ (“treats like cases as like”) (Ross, 1957). However, formal equality may not be sufficient to provide ‘equality in practice’ or ‘substantive equality’ (Barnard & Hepple, 2000; Manitakis, 1978; Yotopoulou-Marangopoulou, 1998a; Gerapetritis, 2007; Papadopoulou, 2006). The implementation of substantive equality often requires the adoption of compensatory policies or measures designed to correct the effects of discrimination suffered by various population groups in the past or present. Such compensatory measures are known as affirmative or positive action (De Schutter, 2007, pp. 759-869). The question of whether this affirmative action is a derogation from the general principle of equality in itself is highly critical. Where such an action is considered a derogation, it is interpreted narrowly (Waddington & Bell, 2001) meaning that the taking of affirmative action is seen as a form of preferential treatment in favor of a particular category of citizens breaching the right to equal treatment of all other citizens (Schiff, 1985). If, however, affirmative action is seen as a necessary means to achieving substantive equality, then it is not only a permissible but a necessary means of securing complete equality within the broader context of the international protection of human rights (Yotopoulos-Marangopoulos, 1998c).
The term ‘positive action’ in the case law terminology of the European Court of Justice (ECJ), or ‘affirmative action’ in that of the Federal Supreme Court of the United States (Supreme Court), covers a wide range of measures, some ‘rigid’ and some ‘soft.’ ‘Rigid’ affirmative action pertains to the privileges of the favored groups and has often been described, in the case law of the ECJ or Supreme Court, as ‘positive discrimination’ or ‘reverse discrimination.’ It might involve measures, which seek the automatic and unconditional preferential treatment of one population group over another relatively more privileged group, such as, for example, the quotas intended to ensure the appointment or promotion of women less well-qualified for a position than their male counterparts, in order to increase the participation of women in the labour market. An example of ‘soft’ positive action, on the other hand, would be a job advertisement in which the employer stated it would welcome applications from members of population groups not adequately represented in its workforce (e.g. women) (Bell, 2001, p. 7).