Positive Action and the Limits of Existing Law

Abstract

Conventional anti-discrimination law has often little impact upon structural and complex forms of discrimination. As a result, states throughout the EU are attempting to use various types of positive action strategies to address many of the inequalities experienced by disadvantaged groups. However, at both EU and national levels, the development of these positive action strategies has been stunted by the existence of two types of legal obstacles. Firstly, a lingering attachment to ‘formal’ equality concepts has resulted in a confusing, incoherent and complex case-law that has a ‘chilling effect’ on the use of positive action. Secondly, there are few effective and substantial legal requirements imposed upon public and private bodies to implement ‘mainstreaming’ and other positive action strategies. These deficiencies in both EC and national equality law mean that the use of positive action strategies has in practice often been half-hearted and lacking in real impact. Without significant shifts in how EC and national legal frameworks conceptualise and regulate positive action measures, the much discussed shift towards a ‘substantive equality’ approach that many commentators have advocated will remain a vague aspiration rather than a concrete reality.