Changing the Norm: Positive Duties in Equal Treatment Legislation

Abstract

This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints-led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model remains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland, Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model.