Affirmative Action in Employment: Recent Court Approaches to a Difficult Concept

By Hodges-Aeberhard, Jane | International Labour Review, January 1, 1999 | Go to article overview

Affirmative Action in Employment: Recent Court Approaches to a Difficult Concept


Hodges-Aeberhard, Jane, International Labour Review


Affirmative action is an extension of the notion of equality of opportunity and non-discrimination. It aims to overcome the effects of past discrimination by enabling the person or group discriminated against either to compete on level terms with the favoured group or, more controversially, to achieve equality outright ("equal results"). Special measures with this aim, whether they are called affirmative action, positive action, employment equity, workplace diversity, maximalization or inclusion,1 are not a new idea: they were first introduced in the United States2 in the 1930s to make up for past unfair labour practices against union organizers and members and later used to assist war veterans' reinsertion in the labour market. Other groups, too, have long benefited from special programmes in employment linked to their special needs, such as persons with disabilities.3 The use of this form of labour market intervention, however, aroused controversy from the moment it was applied to two particular areas of discrimination, namely race and sex.

Critics of affirmative action - leaving aside those who play the semantic game of calling it a form of "reverse" or "negative" discrimination - claim that the concept has several fatal flaws and that it should be removed from the toolbox of possible instruments for use in adjusting imbalances in the labour market. It is variously argued that non-discrimination is such an absolute concept that it can brook no exemption; that such measures start out as temporary and narrowly tailored to the goal to be achieved but end up permanent and broad; that within the favoured group the benefits of the measure go disproportionately to those already at the top of the group in employment status; that in any case there is very little in the way of data on the real successes or achievements of affirmative action; that such measures create distortions and inefficiencies in labour markets; that the measures are usually poorly planned and permit cheating on the results; and - in relation to race-based programmes in particular - that colour-conscious policies are polarizing and fuel resentment and violence.4 There are also politically motivated critics who claim that affirmative action implies equal results, which make it anathema in certain laissez-- faire cultures.

Those in favour of affirmative action argue back that labour market policies should be realistic and admit that since society is not colour-blind or nonsexist some proactive policies are essential; that, while the planning might not always be perfect, any measure is better than inaction; that data gathering is improving and that cheating, in any system, can be controlled by better monitoring and stronger penalties; that such programmes have in fact provided too little rather than too much assistance; and that, apart from the societal advantage of better utilization of the full workforce, there are proven economic advantages.'

Behind this debate lies a subtler contradiction. Affirmative action allows disadvantaged groups the chance to get experience and prove themselves, but at the same time it perpetuates the perception that they intrinsically lack the characteristics for success in employment and will always need special assistance.

Despite this four-decade-old controversy, governments continue to legislate for affirmative action in employment to favour designated groups (most commonly those described as suffering the effects of past discrimination on the basis of their race, colour, sex or disability). Witness the adoption by South Africa and Namibia, near the end of 1998, of legislation requiring employment equity through means including affirmative action (the Employment Equity Act, No. 55 of 1998 in South Africa and the Affirmative Action (Employment) Act, No. 29 of 1998 in Namibia).6 In some countries the concept is well accepted in the fight against sex discrimination, but women are not the only beneficiaries: Norway's Ordinance No. …

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Affirmative Action in Employment: Recent Court Approaches to a Difficult Concept
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