Reverse discrimination, or positive discrimination, is a reaction to the discrimination of certain groups in society on the grounds of race, color, religion, sex or age. Based on the preferential treatment of members of a minority group over a majority group, positive discrimination seeks to address social inequalities, to improve the status of minority groups and to eliminate the dominance of the majority group.
Reverse discrimination is a highly controversial issue. While making efforts to eliminate discrimination, both governments and the international community have made efforts to avoid positive discrimination. As an illustration of these efforts, the International Convention on the Elimination of All Forms of Racial Discrimination, which has been effective since 1969, obliges its signatories to "take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." It also states that these measures "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved."
Generally, reverse discrimination is considered illegal as it contradicts the "selection on merit principle." Although it ensures the favorable treatment of members of traditionally underprivileged groups, this attitude is still regarded as unfair as privileges are granted on the ground of race, marital status and sexual orientation. However, the preferential treatment of disabled employees in many countries remains acceptable.
Positive discrimination is tolerated by the law if it is presented as a genuine occupational requirement (GOR) or a genuine occupational qualification (GOQ). This occurs in situations where certain jobs are unsuitable for people with particular personal characteristics. In order to resort to the use of GOR and GOQ, the employer has to meet a number of strict requirements.
As the civil rights movement in the United States gathered strength in the 1960s, positive discrimination took the form of affirmative action, a tool which was used to fight against discrimination. The decade was marked by dramatic changes in American society, with campaigns organised on human rights, civil liberties and equality. One of the most influential supporters of the preferential treatment of certain members of society was President J. F. Kennedy, who signed Executive Order 10925 in 1961. This was the first public document to use the term "affirmative action." In 1965, Executive Order 11246 was issued, forcing federal contractors to apply affirmative action as regards race, national origin and religion. Three years later, this list was extended to cover gender.
Despite the initial enthusiasm about this measure, affirmative action has generated considerable controversy. The period between 1972 and 1980 saw a heated debate about the application of this concept. The opponents of this method argued that "discrimination cannot be ended with discrimination." Furthermore, they insisted that affirmative action cannot erase past injustice such as slavery or gender inequality. Affirmative action also put a stigma on its beneficiaries, as they were doomed to remain different from the majority group. Therefore, some minorities discarded affirmative action as a humiliating and ineffective approach.
As reverse discrimination and affirmative action proved to be inapplicable, the authorities and civil rights organizations started to look for other means to promote equality and address under-representation of certain groups in higher education institutions and in the workforce. One of the measures adopted at the time was positive action. Like positive discrimination, positive action aims to deal with discrimination and to promote the better treatment of disadvantaged groups. Unlike reverse discrimination, however, positive action is permitted by the law. Positive action enables the employer to provide disadvantaged members of society with access to training and to encourage them to apply for a job. However, the employer is not simply allowed to select job applicants because they belong to an under-represented group.
According to the definition of the British Advisory, Conciliation and Arbitration Service (ACAS), an employer is allowed to publish a job advertisement through any means which is seen as more accessible to disadvantaged groups. The employer can also provide specialist training for job seekers, which can increase the number of applications of under-represented groups. In these cases, the employer must prove that the target group is not well represented.