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Positive Action and the Link with Ethnic Data

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Legal Aspects of Ethnic Data Collection and Positive Action

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Abstract

This chapter considers the notion positive action and the link with ethnic data collection. It discusses working definitions used by various actors in the absence of a generally accepted legal definition of positive action and identifies its group-focus, proportionality, and temporary nature as key elements. Positive action is also compared to and delineated from other concepts and instruments, including indirect discrimination, reasonable accommodation, genuine occupational requirements, equality mainstreaming, and equality impact assessments. The boundaries of the traditional approach to equality are explored and it is considered whether positive action constitutes an exception to, or an aspect of, the equality principle. Next, the chapter delves into the six factors creating a wide variety of positive action measures. There may be differences according to the discrimination grounds, beneficiaries, and fields covered as well as regarding their nature and implementation. Because positive action may also vary greatly per type, special consideration is given to the difference between soft measures that do not include preferential treatment and strong measures that do. The chapter emphasises the need for an analytical and regulatory framework, the active participation of all stakeholders, political will and funding, and reliable ethnically disaggregated data when implementing positive action schemes. Furthermore, this chapter explores the five main justifications of positive action. Measures may pursue compensational, cultural, societal, pedagogical, and/or economic aims. Lastly, the possible barriers to, and limits of, positive action are considered.

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Notes

  1. 1.

    The two main topics of the book were introduced in Chap. 1 (Sect. 1.3).

  2. 2.

    This chapter on positive action and the link with ethnic data, Chap. 7 on the international framework on positive action, and Chap. 8 on the European frameworks on positive action.

  3. 3.

    Chapter 9 on positive action for the Roma minority in Europe, Chap. 10 on positive action for Roma in four key areas, and Chap. 11 on inter-cultural mediation to enhance Roma inclusion.

  4. 4.

    Ramos Martín (2013), p. 15. European Roma Information Office (ERIO) (2010), p. 9. European Network Against Racism (ENAR) (2008), p. 1.

  5. 5.

    European Commission (2009), pp. 34 and 64.

  6. 6.

    European Commission (2009), p. 11. Hollo (2006), p. 28. Final report ‘The concept and practice of Affirmative Action’ submitted by Special Rapporteur Mr. Marc Bossuyt to the Sub-Commission on the Promotion and Protection of Human Rights of the Commission of Human Rights in accordance with Sub-Commission resolution 1998/5 (Final report Bossuyt) (17 June 2002), para. 6.

  7. 7.

    European Commission (2009), p. 11.

  8. 8.

    See, for instance: Final report Bossuyt (17 June 2002; para. 6) describes it as “a coherent packet of measures, of a temporary character, aimed specifically at correcting the position of members of a target group in one or more aspects of their social life, in order to obtain effective equality”. ENAR (2007a, pp. 2 and 3) defines it as “any measure promoting equality”. According to De Vos (ENAR 2007b, p. 10), it includes “any measure that contributes to the elimination of inequalities in practice”. O’Cinneide (2012, pp. 5 and 25) broadly defines it as “all measures which seek by means of positive steps to alter existing social practices so as to eliminate patterns of group exclusion and disadvantage”. Bell et al. (1996, p. 234) cite “any measures which go beyond the prohibition of discrimination and seek instead to positively alter the composition of a public or private institution, such as a school or workplace. Such measures generally have as their objective ensuring that the composition of that institution is more representative, either of those people eligible to be a part of it or of society as whole”. This will be discussed further in Sect. 6.1.4 on the limits of the traditional approach to equality. The distinction between formal and substantive equality was explained in Chap. 2 (Sect. 2.1.3).

  9. 9.

    Committee on the Elimination of Racial Discrimination (CERD Committee), General Recommendation No. 32: The meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination (24 September 2009), para. 11. Commission Communication, Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’) (17 January 2014), p. 9. European Union Agency for Fundamental Rights (FRA) and CoE (2011), pp. 37 and 38. Farkas (2007), p. 36. Szyszczak (2006). The broad spectrum of measures covered by the notion positive action will be analysed in Sects. 6.2–6.4. See also Sects. 6.1.4 and 6.1.5 for a discussion on the limits of the traditional formal approach to equality. Chapter 10 will consider positive action for Roma in four key areas.

  10. 10.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 13. United Nations Development Programme (UNDP) (2010), p. 22. European Commission (2009), pp. 25 and 40.

  11. 11.

    UNDP (2010), p. 37. Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance: Follow-up to and implementation of the Durban Declaration and Programme of Action (19 May 2009), para. 19. The remedial aim of positive action will be discussed in Sect. 6.4.1.

  12. 12.

    European Commission (2009), pp. 40, 54, 62 and 63. The pedagogical aim of positive action will be presented in Sect. 6.4.4. On the other hand, as will be discussed in Sect. 6.5.1, positive action may have potential side effects on (persons belonging to) the target group.

  13. 13.

    Final report Bossuyt (17 June 2002), paras. 23 and 26. European Commission (2009), pp. 39, 40, 54, 62, 63 and 65. Perceptions by (members of) non-targeted groups are not always favourable, as will be explained in Sect. 6.5.2.

  14. 14.

    Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance (19 May 2009), para. 38. For more on the enhancement of culture by promoting diversity as the second aim of positive action, see Sect. 6.4.2.

  15. 15.

    Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance (19 May 2009), paras. 38–39. Final report Bossuyt (17 June 2002), para. 22. The enhancement of social homogeneity will be analysed as the third aim of positive action in Sect. 6.4.3. On the other hand, it will be explained in Sect. 6.5.3 that positive action may also have implications for society as a whole.

  16. 16.

    See Chap. 10 on positive action for Roma in four key areas, and in particular Sect. 10.1 in which the author promotes the adoption of a sectorial bottom-up approach to positive action in order to achieve tailored and proportionate measures.

  17. 17.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 16.

  18. 18.

    International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965) (ICERD), arts. 1.4. and 2.2. Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) (CEDAW), art. 4.1. The Committee on the Elimination of Discrimination against Women (CEDAW Committee) points out in its General Recommendation No. 25: Article 4, paragraph 1, of the CEDAW, on Temporary Special Measures (2004, para. 21) that special means “that the measures are designed to serve a specific goal” and thus not implies that women are weak, vulnerable or need extra or special measures to enhance their full participation in society.

  19. 19.

    CEDAW, art. 4.

  20. 20.

    Human Rights Committee, General Comment No. 18: Non-Discrimination (10 November 1989), para. 10.

  21. 21.

    CERD Committee, General Recommendation No. 32 (24 September 2009), paras. 11 and 12. Committee on Economic, Social and Cultural Rights (CESCR Committee), General Comment No. 13: The Right to Education (Art. 13) (8 December 1999), para. 32.

  22. 22.

    ERIO (2010), p. 9.

  23. 23.

    De Vos (2007, p. 12) argues that this demonstrates the immense diversity encompassed by positive action processes that cannot be reflected in one single denomination. Gerapetritis (2016), pp. 2 and 3. Bell (2007b), p. 5.

  24. 24.

    McCrudden (1986, pp. 220 and 221) explains that the notion affirmative action in the USA was originally mainly used in relation to the removal of discriminatory employment practices affecting women and minorities. The notion of positive action was already used by the American Government in 1976 in relation to the under-representation of racial minorities, in order to circumvent the (incorrect) association between and accompanying controversy surrounding affirmative action and quotas. However, McCrudden argues that there is no real difference in substance between both notions. On the other hand, ENAR (2008, p. 5) warns that the American notion affirmative action may not be reduced to preferential treatment, but covers a wide range of measures like the European notion positive action. The diverse types of positive action will be presented in Sect. 6.2.2.

  25. 25.

    De Vos (2007, p. 12) advises against identifying these notions with one another. Even though they are broadly similar, they each different legal and societal backgrounds. The difference between positive action and affirmative action is sometimes explained as one of equality in opportunity and equality of results (see, for example: ERIO 2010, p. 13), but the author does not support such differentiation and consider both terms to embrace a diversity of measures that may, but do not necessarily, involve preferential treatment and thus equality of results. European Commission (2009), p. 25. Final report Bossuyt (17 June 2002), para. 5. For more on the broad spectrum of measures covered by the positive action, see Sects. 6.2.2–6.2.4.

  26. 26.

    Gerapetritis (2016), p. 5. ERIO (2010), p. 13. De Schutter (2007a), p. 757. Szyszczak (2006).

  27. 27.

    See, for example: ENAR (2008), p. 5. This will be discussed further when exploring the limits of the traditional approach to equality (Sect. 6.1.4) and when analysing the wide range of soft and strong positive action measures (Sects. 6.2.2–6.2.4).

  28. 28.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 12. Final report Bossuyt (17 June 2002), para. 5. Gerapetritis (2016), p. 3. The author use the notion positive action as an umbrella term encompassing a broad variety of preferential and non-preferential measures, as will be explained in Sects. 6.2.2–6.2.4. See also Chap. 7 on the international framework on positive action and Chap. 8 on the European framework on positive action.

  29. 29.

    In addition to this section, the proportional and temporary nature of positive action will be discussed in the next chapters when analysing the international (Chap. 7) and the European framework on positive action (Chap. 8). Specifically in relation to positive action for Roma in Europe, see Chap. 9 (Sect. 9.1.3) and Chap. 10 (Sect. 10.1).

  30. 30.

    Gerapetritis (2016), pp. 240–246 and 249. O’Cinneide (2012), p. 14. Henrard (2007), p. 29. Shaw (2004), p. 30.

  31. 31.

    De Vos (2007), p. 34. See Sect. 6.1.3 on the similarities and the differences between positive action and other concepts and instruments.

  32. 32.

    Gerapetritis (2016), p. 240. Interights (2011), p. 84. The limits of the formal approach to equality will be explored in Sect. 6.1.4. See, in particular, Sect. 6.1.3.2 on reasonable accommodation and Sect. 6.1.3.3 on genuine occupational requirements.

  33. 33.

    Exceptions include art. 9.2 Spanish Constitution (1978), which mentions real and effective freedom and equality of individuals and groups) and art. 15.2 Canadian Charter of Rights and Freedoms as included in the Constitution Act (1982), which covers measures improving the conditions of disadvantaged individuals or groups. Gerapetritis (2016), p. 241.

  34. 34.

    In the 1995 case Eckhard Kalanke v. Freie Hansestadt Bremen, Advocate General Tesauro stated that “in taking the group as such into consideration, positive action moreover marks a transition from the individual vision to the collective vision of equality”. See: CJEU, Eckhard Kalanke v. Freie Hansestadt Bremen, Opinion of Advocate General Tesauro (6 April 1995), para. 8. On the other hand, in the 2004 case Serge Brihech v. Ministre de l’Intérieur, Ministre de l’Education nationale and Ministre de la Justice, Advocate General Maduro stated that “(i)t appears that such reconciliation with the principle of equality excludes any type of automatic preference for women and requires that measures to be proportionate in balancing the benefits of the positive action in promoting equality for women against the costs imposed on other individuals” and that “(t)hese requirements appear necessary to prevent equality between individuals from being overridden by concerns of substantive equality between groups”. See: CJEU, Serge Briheche v Ministre de l’Intérieur, Ministre de l’Éducation nationale and Ministre de la Justice, Opinion Advocate General Maduro (29 June 2004), para. 41. Gerapetritis (2016), p. 242. The CJEU case law on positive action will be analysed in Chap. 8 (Sect. 8.2.2).

  35. 35.

    The role of proportionality will be discussed when analysing the international and European framework on positive action in Chaps. 7 and 8 respectively. The notions equality and anti-discrimination were introduced in Chap. 2 (Sect. 2.1).

  36. 36.

    De Schutter (2007a), p. 820.

  37. 37.

    European Commission (2009), p. 26. The remedying of discrimination will be analysed as the first aim of positive action in Sect. 6.4.1. The different types of positive action will be explained in Sects. 6.2.2–6.2.4. This argument will be further developed in Chap. 8 (Sect. 8.2.2.5) on the derogatory approach adopted by the Court of Justice of the European Union in its case law on positive action.

  38. 38.

    Chapter 7 on the international framework on positive action and Chap. 8 on the European framework on positive action. See also Chap. 9 (Sect. 9.1.3) on the need for a soft and strong positive action measures to advance Roma inclusion and Chap. 10 (Sect. 10.1) on the implementation of tailored and proportionate measures for Roma in four key areas.

  39. 39.

    The temporary nature is not only a key characteristic of positive action in Europe where the main aim of such measures is compensatory, but also in the USA where the diversity aim dominates in relation to race-conscious public contracting and university admission policies. See, for instance: US Supreme Court, Grutter v. Bollinger (2003), pp. 342 and 343. US Supreme Court, Richmond v. Croson (1989), p. 510. These two aims of positive action will be analysed in Sect. 6.4.1 (remedial) and Sect. 6.4.2 (cultural). Gerapetritis (2016), pp. 232 and 233. European Network of Equality Bodies (Equinet) (2014), p. 26. Ramos Martín (2013), p. 17. European Commission (2009), p. 26. De Schutter (2007a), p. 851.

  40. 40.

    ICERD, art. 1.4. CEDAW, art. 4.1. CEDAW Committee, General Recommendation No. 25 (2004), paras. 19 and 20. This will be discussed further in Chap. 7 on the prohibition of maintaining permanent, separate standards in the UN framework on positive action (Sect. 7.3.3).

  41. 41.

    This will be discussed in Chap. 8 (Sect. 8.2) on the EU framework on positive action.

  42. 42.

    Equinet (2014), p. 28. Section 6.1.3 will consider how positive action is similar to and differs from other concepts and human rights instruments, including reasonable accommodation (see Sect. 6.1.3.2).

  43. 43.

    European Commission (2009), p. 28.

  44. 44.

    This will be discussed in Sect. 6.3.4, where the availability of ethnically disaggregated data is cited as the fourth premise to render positive action schemes effective.

  45. 45.

    European Commission (2009), p. 26.

  46. 46.

    For instance, interpretation services for linguistic minorities. CESCR Committee, General Comment No. 20: Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2) (2 July 2009), para. 9.

  47. 47.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 35. CEDAW Committee, General Recommendation No. 25 (2004), para. 20.

  48. 48.

    This will be discussed further when reviewing the international and the European frameworks on positive action in Chaps. 7 and 8. De Schutter (2007a), p. 852.

  49. 49.

    In this sense, using the notion temporary might be confusing and misleading, particularly so when raising awareness and trying to get the support of the majority regarding the implementation of positive action for disadvantaged and marginalised population groups.

  50. 50.

    The difference between direct and indirect discrimination was explained in Chap. 2 (Sect. 2.1.2).

  51. 51.

    Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (29 June 2000) (RED), art. 2.1(b).

  52. 52.

    Equinet (2014), p. 27. De Vos (2007), p. 14.

  53. 53.

    Indirect discrimination is non-dynamic and non-redistributive. Ellis and Watson (2012), p. 176. For more on this, see Sects. 6.4.2 and 6.4.3 on the cultural and the societal aim of positive action.

  54. 54.

    See, for example: CJEU, Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Judgment (13 May 1986), para. 42. The case concerned the question whether the employer is obliged to take into consideration the impact of family responsibilities on female workers in light of the legal rules on pay discrimination. Treaty on the Functioning of the European Union (Consolidated version) (TFEU), art. 143. Formerly Treaty establishing the European Community (Nice Consolidated version) (21 February 2001), art. 119. De Vos (2007), p. 14.

  55. 55.

    See also: De Vos (2007), p. 14.

  56. 56.

    De Vos (2007), pp. 14 and 15. The CJEU case law on positive action will be analysed in Chap. 8 (Sect. 8.2.2).

  57. 57.

    For persons with disabilities, appropriate measures must not be taken when they would impose a disproportionate burden on the employer. See: Council Directive 2000/78 establishing a general framework for equal treatment in employment and occupation (27 November 2000) (EED), art. 5. For young workers, see: Council Directive 94/33/EC on the protection of young people at work (22 June 1994). For pregnant workers and workers who have recently given birth, see: Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers who have recently given birth or are breastfeeding (19 October 1992).

  58. 58.

    Equinet (2014), p. 27.

  59. 59.

    CEDAW art. 4.1. De Schutter (2007a), p. 760. Equinet (2014), p. 27. Interights (2011), p. 85. De Vos (2007), pp. 33, 34 and 69. The group-focus and the temporary nature of positive action were identified as two key elements of this human rights instrument in Sects. 6.1.2.1 and 6.1.2.3 respectively. The optional nature of positive action in the EU framework will be considered in Chap. 8 (Sect. 8.2).

  60. 60.

    CEDAW, art. 4.2. The CEDAW Committee explains that “(w)omen’s biologically determined permanent needs and experiences should be distinguished from other needs that may be the result of former and current discrimination against women by individual actors, the dominant gender ideology, or by manifestations of such discrimination in social and cultural structures and institutions”. See: CEDAW Committee, General Recommendation No. 25 (2004), paras. 11 and 16. De Schutter (2007a), p. 760. Equinet (2014), p. 27. Interights (2011), p. 85. De Vos (2007), pp. 33, 34 and 69.

  61. 61.

    De Vos (2007), p. 33. The limits of the traditional approach to equality will be explored in Sect. 6.1.4 and it will be considered in Sect. 6.1.5 whether positive action constitutes a derogation or an aspect of equality.

  62. 62.

    See Sects. 6.2.2–6.2.4 for a discussion on the diverse types of positive action measures.

  63. 63.

    RED, art. 4. EED, art. 4.

  64. 64.

    De Vos (2007), p. 35.

  65. 65.

    Id.

  66. 66.

    Since the entry into force of the Treaty of Lisbon on 1 December 2009, the legal basis for equality mainstreaming within the EU is found in article 10 TFEU, which stipulates that “in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation”. Prior to this date, gender and to a lesser extent disability and anti-racism mainstreaming was well-developed in EU and national law and policymaking. The Convention on the Rights of Persons with Disabilities includes two explicit references to disability mainstreaming. See: Convention on the Rights of Persons with Disabilities (31 December 2006) (CRPD), preamble recital g and art. 4.1(c). Treaty of Lisbon amending the Treaty on the European Union and the Treaty Establishing the European Community (13 December 2007). Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), pp. 6–8. Shaw (2004), pp. 5, 6, 16 and 80.

  67. 67.

    European Commission (2011), pp. 8 and 19. European Commission (2009), p. 27. Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), pp. 6 and 7. Commission Communication, Incorporating equal opportunities for women and men into all community policies and activities (21 February 1996), p. 2.

  68. 68.

    De Schutter (2005), pp. 43 and 44. Fredman (2002), p. 176. Suggested further reading on equality mainstreaming in general, see: Rees (1998).

  69. 69.

    European Commission (2009), p. 27. Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), pp. 6 and 7. De Schutter (2005), p. 47.

  70. 70.

    For De Schutter (2014, pp. 1646 and 1647; 2005, pp. 46, 47, 49 and 50), equality mainstreaming is about taking into account the impact that different policy options may have on the further realisation of fundamental rights of disadvantaged groups. By doing so, it surpasses the negative obligation to comply with fundamental rights and not to discriminate. Fredman (2002, p. 176) calls mainstreaming “a pro-active, anticipatory and integrative method”. It may not be a simple tick-box exercise, but should inspire policymakers to develop new and better policy instruments that tackle exclusion and discrimination at its roots instead of remedying their manifestations. European Commission (2011), p. 26. The remedial aim of positive action will be discussed in Sect. 6.4.1.

  71. 71.

    European Commission (2009), p. 27.

  72. 72.

    UNDP (2010), p. 80. The importance of combining equality mainstreaming with targeted positive action will be highlighted in Chap. 9 (Sect. 9.2.2.2) when discussing positive action for Roma in Europe.

  73. 73.

    Interights (2011), p. 86. European Commission (2011), pp. 5, 18, 19, 24 and 25. De Schutter (2005), pp. 50 and 51. Shaw (2004), p. 15. McCrudden (1999), pp. 1770 and 1171. Active participation of all relevant stakeholders will be identified as the second premise of positive action in Sect. 6.3.2.

  74. 74.

    Data is needed to analyse the situation and the needs of disadvantaged groups before mainstreaming and to monitor the actual impact of policies. The availability of ethnically disaggregated data is the fourth premise of positive action (see Sect. 6.3.4). European Commission (2011), pp. 5, 10, 21, 22 and 25. UNDP (2010), p. 80.

  75. 75.

    O’Cinneide (2012), p. 12. Shaw (2004), p. 29. Problems with lack of political will and funding in relation to positive action will be considered in Sect. 6.3.3.

  76. 76.

    European Commission (2011), p. 25. Henrard (2007), p. 31. Shaw (2004), p. 15. McCrudden (2001), p. 110.

  77. 77.

    European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 7: National legislation to combat racism and racial discrimination (13 December 2002), para. 8 and Explanatory Memorandum para. 27. McCrudden and Prechal (2009), p. 46. ENAR (2008), p. 5. Shaw (2004), pp. 7, 26 and 30. Suggested further reading on positive duties: Fredman (2002), pp. 176–195.

  78. 78.

    Equinet (2014), p. 48. McCrudden (2003), p. 16. This will be discussed further in Chap. 8 (Sect. 8.1.1) on positive action within the ECHR framework.

  79. 79.

    When addressing the challenges that limit positive action for Roma in Chap. 9 (Sect. 9.2.2.2), it will be suggested that the EU can promote the use of this human rights instrument by adopting a positive duty to promote equality for racial and ethnic minorities in the areas covered by the RED.

  80. 80.

    Art. 10 Bulgarian Protection against Discrimination Act (2006) states that “(i)n the course of exercising their powers, State and local government bodies shall take all possible and necessary measures in order to accomplish the aims of this Act”.

  81. 81.

    Art. 9.2 Spanish Constitution states that “(i)t is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove the obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life”.

  82. 82.

    Section 149 UK Equality Act (England and Wales) (2010) protects age, disability, gender reassignment, pregnancy and maternity, race, religions or belief, sex and sexual orientation, covers Great-Britain (England, Scotland and Wales), contains a public sector equality duty. It states that “(a) public authority must, in the exercise of its functions, have due regard to the need to (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant characteristic and persons who do not share it.”

  83. 83.

    Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), pp. 7 and 8. Chopin and Do (2011), p. 89.

  84. 84.

    It will be explained in Sect. 6.2.1 that positive action measures may also differ according to discrimination ground (Sect. 6.2.1.1) and applicable field (Sect. 6.2.1.3). ENAR (2008), p. 5.

  85. 85.

    The nine discrimination grounds include religious belief, political opinion, racial group, age, marital status or sexual orientation, gender, disability and dependency (persons with dependents and persons without). United Kingdom, Northern Ireland Act (1998), Section 75. ENAR (2008), p. 5.

  86. 86.

    This is the case in the UK. Positive action also requires close co-operation with target groups and the collection of ethnic data, as will be stressed in Sects. 6.3.2 and 6.3.4. Chopin and Do (2011), pp. 89 and 90. European Commission (2011), p. 30. Interights (2011), p. 86. ENAR (2008), p. 5. Bell (2007a), pp. 26 and 27. Hollo (2006), p. 7.

  87. 87.

    United Kingdom, Fair Employment Act (Northern Ireland) (1989), Sections 27–30.

  88. 88.

    This could include goals and timetables, but not quotas. Employers must consider how their programmes and policies can be amended so as to achieve greater equality. The difference between soft and strong positive action measures will be explored in Sects. 6.2.2–6.2.4. United Kingdom, Fair Employment and Treatment (Northern Ireland) Order (1998), Sections 31, 36 and 37. ENAR (2007b), p. 13.

  89. 89.

    De Schutter (2005), p. 45.

  90. 90.

    See the website of the International Association for Impact Assessment: www.iaia.org (Accessed 31 January 2019). Toner (2014), p. 2.

  91. 91.

    Toner (2014), p. 2. Shaw (2004), p. 6.

  92. 92.

    Accountability through data protection impact assessments was considered in Chap. 3 (Sect. 3.4.9.2).

  93. 93.

    Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (27 April 2016) (GDPR), art. 35. See, similarly: Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (28 January 1981), as updated by Protocol amending Convention 108 (18 May 2018) (Convention 108+), art. 10.2.

  94. 94.

    GDPR, art. 35.3(b).

  95. 95.

    Toner (2014), p. 16. European Commission (2011), p. 18.

  96. 96.

    De Schutter (2014), p. 1646.

  97. 97.

    Toner (2014), p. 5.

  98. 98.

    Commission Staff Working Paper, Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments (6 May 2011), pp. 5 and 10. Suggested further reading on impact assessments: De Schutter (2005), pp. 51–65.

  99. 99.

    The Environmental Impact Assessment Directive has been in force since 1985 and has been amended three times (1997, 2003 and 2009), all of which was codified by Directive 2011/92/EU of the European Parliament and of the Council on the assessment of the effects of certain public and private projects on the environment (13 December 2011). This Directive was amended in turn by Directive 2014/52/EU of the European Parliament and of the Council (16 April 2014). Toner (2014), p. 2. Shaw (2004), p. 28.

  100. 100.

    Resolution 51/242 of the General Assembly on Supplement to an Agenda for Peace (26 September 1997), par. 16. Report of the Secretary-General on Supplement to an agenda for peace: Position paper on the occasion of the fiftieth anniversary of the United Nations (3 January 1995), para. 75. Suggested further reading: De Hert and Van Laethem (2008), pp. 11–14.

  101. 101.

    European Commission (2002b), p. 3.

  102. 102.

    See, for example: CERD Committee, Concluding Observations on the United Kingdom (1 September 2011), para. 13. CEDAW Committee, Concluding Observations on Greece (1 March 2013), paras. 11(a), 13(c) and 40. Resolution CM/ResCSS(2012)8 of the Committee of Ministers on the application of the European Code of Social Security and its Protocol by Greece (12 September 2012). Council of Europe Commissioner for Human Rights (2013), pp. 9 and 11. Open Letter of the Committee on Economic, Social and Cultural Rights (CESCR Committee) to States Parties regarding the protection of rights in the context of economic crisis (16 May 2012).

  103. 103.

    Commission Communication, Impact Assessment (5 June 2002). The Communication has been replaced several times. See: Commission Communication, Better regulation for better results—an EU agenda (19 May 2015) COM(2015) 215 final.

  104. 104.

    The 2002 Guidelines have been replaced several times. See: Commission Staff Working Document, Better Regulation Guidelines (7 July 2017). European Commission, Impact Assessment Guidelines (15 January 2009).

  105. 105.

    Integrated includes economic, social and environmental impacts. The impact on fundamental or human rights, equality, social exclusion and poverty is included in the social dimension. See: Commission Communication, Impact Assessment (5 June 2002), p. 15 (Annex 2—The main components of the Extended Impact Assessment). European Commission (2002a). The handbook has been replaced since. See: European Commission (2008).

  106. 106.

    The original agreement of 2003 was replaced in 2005 and in 2016. Inter-institutional agreement on better law-making between the European Parliament, the Council of the European Union and the European (13 April 2016), paras. 13–15 and 27–30. Lein (2015) criticises the EU Institutions for not implementing the provisions of the Interinstitutional Agreements. He does credit the European Parliament for establishing a Directorate for Impact Assessment and European Added Value in 2012 that has produced impact assessments on more than 20 major legislative amendments since.

  107. 107.

    Toner (2014), pp. 12 and 13.

  108. 108.

    The CFEU is legally binding since the entry force of the Treaty of Lisbon on 1 December 2009. Commission Staff Working Paper, Operational Guidance on taking account of Fundamental Rights in Commission Impact Assessments (6 May 2011), p. 3. European Commission (2011), p. 11. Commission Communication, Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union (19 October 2010) COM(2010), pp. 4 and 6.

  109. 109.

    See Sect. 6.1.1 on the varying understandings of the notion positive action.

  110. 110.

    See Chap. 2 (Sect. 2.1.3) on the notions formal and substantive equality.

  111. 111.

    This notion of equality in law is reflected in the definition of direct discrimination in art. 2.2(a) RED. Gerapetritis (2016), p. 12. Ramos Martín (2013), p. 11. Bell (2007b), p. 5. Fredman (2002), pp. 7 and 127.

  112. 112.

    Gerapetritis (2016), p. 14. Fredman (2002), p. 127.

  113. 113.

    De Vos (2007), p. 10. Chalmers et al. (2006), p. 879. McCrudden (2003), p. 17. Fredman (2002), pp. 2, 10 and 11.

  114. 114.

    Cohen (2005), p. 5. The notions assimilation and pluralism were explored in Chap. 2 (Sects. 2.3.2 and 2.3.3).

  115. 115.

    Interim Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on combating racism, racial discrimination, xenophobia and related intolerance and the comprehensive implementation of the follow-up to the Durban Declaration and Programme of Action (10 August 2009), para. 42. Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance (19 May 2009), para. 36. ENAR (2008), p. 2. De Schutter (2007a), p. 780. ENAR (2007b), pp. 14 and 15. McCrudden (2003), p. 17. Chalmers et al. (2006), p. 879.

  116. 116.

    Ramos Martín (2013), p. 12. ENAR (2008), p. 2. Bell (2007a), p. 26. ENAR (2007b), p. 2. Fredman (2002), p. 165. Mulder (1999), p. 66.

  117. 117.

    Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), p. 5. ERIO (2010), p. 8. Oppenheimer (1988–1990), p. 61.

  118. 118.

    O’Cinneide (2012), p. 2.

  119. 119.

    Commission Green Paper, Equality and non-discrimination in an enlarged European Union (28 May 2004), pp. 7–10. Koldinská (2011), pp. 245 and 257. Howard (2010), pp. 136 and 137. Niessen (2001), p. 15.

  120. 120.

    Fredman (2005), p. 373. ENAR (2008), p. 2.

  121. 121.

    The five main aims of positive action will be presented in Sect. 6.4. Interights (2011), p. 84. De Schutter (2007a), pp. 757 and 780. Cohen (2005), p. 6.

  122. 122.

    ENAR (2008), p. 3. De Schutter (2007a), p. 757. For more on the group-focus of positive action, see Sect. 6.1.2.1.

  123. 123.

    It is colour-aware. The notion substantive equality was introduced in Chap. 2 (Sect. 2.1.3). Several instruments reflect the notion of equality in fact. See: CEDAW, art. 4.1 (de facto equality). Protocol 12 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 2000), third recital (full and effective equality). Gerapetritis (2016), p. 15. De Vos (2007), p. 10.

  124. 124.

    Fredman (2002), p. 160.

  125. 125.

    Gerapetritis (2016), pp. 11–17. Henrard (2007), p. 29. Not everyone agrees with this division. For instance, De Vos (2007, p. 10) considers equality of opportunities to be the middle ground between formal and substantive equality; equality of results is then synonymous to substantive equality. Cohen (2007, p. 3) also mentions substantive equality and equality of results as synonyms.

  126. 126.

    All positive action measures aim to achieve a higher degree of substantive equality, but those that do not provide preferential treatment pursue equality of opportunities and those that involve preferential treatment pursue equality of results. The difference between soft and strong positive action measures will be explained in Sects. 6.2.2–6.2.4.

  127. 127.

    Gerapetritis (2016), p. 14. De Schutter (2007a), p. 759. Chalmers et al. (2006), p. 879.

  128. 128.

    Chalmers et al. (2006), p. 879.

  129. 129.

    Gerapetritis (2016), p. 14. Chalmers et al. (2006), p. 879. Fredman (2002), p. 129.

  130. 130.

    Gerapetritis (2016), p. 15.

  131. 131.

    Equinet (2014), pp. 13 and 47. De Vos (2007), p. 11. Chapter 8 (Sect. 8.2) will focus on positive action in the EU framework.

  132. 132.

    Gerapetritis (2016), p. 14. Fredman (2002), p. 130.

  133. 133.

    McCrudden (2003), p. 17.

  134. 134.

    De Vos (2007), pp. 10 and 11.

  135. 135.

    The CJEU’s case law on positive action will be analysed in Chap. 8 (Sect. 8.2.2).

  136. 136.

    Gerapetritis (2016, pp. 17 and 18) ironically points out that this difference “is not clear-cut, since no one is in a position to say what constitutes an expression as opposed to an exception of equality”.

  137. 137.

    Resolution of the European Parliament on Non-Discrimination and Equal Opportunities for All—A Framework Strategy (14 June 2006), general consideration 8. Equinet (2014), pp. 5, 27 and 48. Ramos Martín (2013), p. 163. ERIO (2010), p. 17. De Vos (2007), p. 5.

  138. 138.

    De Vos (2007, p. 12) explains that positive action measures instituting differential treatment constitute discrimination under EU law, irrespective of their positive or benign character. Many Member States also take a derogatory approach to positive action in their national equality legislation. Equinet cites Austria, Croatia, Denmark, Finland, Germany, Hungary, Malta, Poland, Serbia, and the Netherlands. Equinet (2014), pp. 47 and 48. Ramos Martín (2013), p. 29. McCrudden (2003), p. 18. Formal and substantive equality were considered in Sect. 6.1.4. These notions were first introduced in Chap. 2 (Sect. 2.1.3) on the notions equality and anti-discrimination.

  139. 139.

    Gerapetritis (2016), p. 250. Equinet (2014), pp. 5, 25 and 47. Ramos Martín (2013), pp. 21 and 22. FRA and CoE (2011), p. 38. ERIO (2010), p. 17. De Vos (2007), pp. 5 and 31. Proportionality was defined as a key element of positive action in Sect. 6.1.2.2. The interpretation of this principle by the CJEU will be analysed in Chap. 8 (Sect. 8.2.2).

  140. 140.

    Gerapetritis (2016), p. 21.

  141. 141.

    Gerapetritis (2016), pp. 21 and 202. Ramos Martín (2013), pp. 29 and 30.

  142. 142.

    Mulder (1999), p. 69. For more on the distinction between formal and substantive equality, see Sect. 6.1.4. See also Chap. 2 (Sect. 2.1.3).

  143. 143.

    Cohen (2007), p. 6. The different types of positive action will be analysed in Sects. 6.2.2–6.2.4.

  144. 144.

    Equinet (2014), p. 48. Chapter 7 will focus on the international framework on positive action.

  145. 145.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 18.

  146. 146.

    This is the case “so long as such measures do not lead to the maintenance of unequal or separate standards for different groups, and provided they are not continued after the objectives for which they were taken have been achieved”. CESCR Committee, General Comment No. 13 (8 December 1999), paras. 32 and 33. The temporary nature of positive action was identified as a key element in Sect. 6.1.2.3. See also Chap. 7 (Sect. 7.3.3), where it will be explained that the UN bodies prohibit the maintenance of permanent, separate standards.

  147. 147.

    Fredman (2002), pp. 192–194. Fredman and Szysczak (1992), pp. 214–226. Fiss (1977), p. 85.

  148. 148.

    The anti-discrimination principle establishes the limits of positive action, meaning that they must be applied in a proportionate manner. This will be discussed further in Chap. 7 on the international framework on positive action. See, for example: CESCR Committee, General Comment No. 5: Persons with disabilities (9 December 1994), para. 19. Gerapetritis (2016), pp. 21 and 202. O’Cinneide (2012), p. 25. Hollo (2006), p. 41. Final report Bossuyt (17 June 2002), paras. 83 and 113.

  149. 149.

    European Commission (2009), pp. 11 and 25. See this book’s definition of positive action in Sect. 6.1.1.

  150. 150.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 13. Committee on the Rights of the Child (CRC Committee), General Comment No. 11: Indigenous children and their rights under the Convention (12 February 2009), para. 26. CEDAW Committee, General Recommendation No. 25 (2004), para. 22. European Commission (2009), pp. 25 and 26. De Vos (2007), p. 5. Final report Bossuyt (17 June 2002), para. 7. The international and European framework on positive action are considered in Chaps. 7 and 8 respectively.

  151. 151.

    O’Cinneide (2012), pp. 9 and 10.

  152. 152.

    Section 6.2.1 on discrimination grounds, beneficiaries, fields, nature and implementation.

  153. 153.

    Section 6.2.2 on the distinction between soft and strong types of positive action, Sect. 6.2.3 on four soft measures that do not provide preferential treatment, and Sect. 6.2.4 on three strong measures that involve preferential treatment.

  154. 154.

    O’Cinneide (2012), p. 12.

  155. 155.

    O’Cinneide (2012), p. 12. The five main aims of positive action will be presented in Sect. 6.4.

  156. 156.

    CEDAW, art. 4.1. CEDAW Committee, General Recommendation No. 25 (2004), para. 23. The conception of positive action as an aspect of equality at the international level was considered in Sect. 6.1.5.

  157. 157.

    Beijing Platform for Action as annexed to the Report of the Fourth World Women Conference (17 October 1995), para. 1 (Annex II).

  158. 158.

    Recommendation CM/Rec(85)2 of the Committee of Ministers to Member States on legal protection against sex discrimination (5 February 1985), part III (special temporary measures).

  159. 159.

    O’Cinneide (2012), p. 1. Van Gerven (2005), p. 176. The CJEU’s case law on positive action will be discussed in Chap. 8 (Sect. 8.2.2).

  160. 160.

    See arts. 157.3 and 157.4 TFEU and art. 23 Charter of Fundamental Rights of the European Union (7 December 2000) for gender. Compare with art. 5 RED (racial or ethnic origin) and art. 7 EED (religion or belief, age or sexual orientation as regards employment). Gerapetritis (2016), p. 182. Positive action at the EU level will be analysed in Chap. 8 (Sect. 8.2).

  161. 161.

    Equinet (2014), 6.

  162. 162.

    CRPD, art. 5.4. EED, recital 27 and art. 7. CESCR Committee, General Comment No. 5 (9 December 1994). Commission Communication, Non-discrimination and equal opportunities: A renewed commitment (2 July 2008), p. 5.

  163. 163.

    The report mentions Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Spain, Great-Britain. Chopin and Do (2011), p. 91.

  164. 164.

    Equinet (2014, p. 36) mentions Austria, Hungary, Belgium, Slovenia, France, Germany, Poland, Italy, Romania, Slovakia, Slovenia, Austria and Serbia. Bell (2007b), p. 6. De Vos (2007), pp. 43–47. For a description of strong measures that involve preferential treatment, see Sect. 6.2.4.

  165. 165.

    Other groups include, among others, Native Americans and Hispanics. As will be explained in Sect. 6.4.2, the diversity rationale is used to justify such measures. Ramos Martín (2013), pp. 15 and 16. O’Cinneide (2012), p. 1. Van Gerven (2005), p. 176. Gerapetritis (2016), p. 181.

  166. 166.

    See, for instance: US Supreme Court, Regents of the University of California v. Bakke (1978). This will be discussed further in Sect. 6.2.4 on strong measures involving preferential treatment and in Sect. 6.4.2 on the promotion of diversity as the second aim of positive action. Gerapetritis (2016), p. 177.

  167. 167.

    O’Cinneide (2012), p. 1.

  168. 168.

    RED, art. 5. This will be considered in Chap. 8 (Sects. 8.2.3 and 8.2.4) on positive action on other discrimination grounds than gender in the EU framework.

  169. 169.

    Such positive action can be found in Bulgaria, Croatia, Estonia, the Former Yugoslav Republic of Macedonia (officially renamed the Republic of North Macedonia in February 2019), Germany, Hungary, Norway, Poland, Slovenia, and the UK. Gerapetritis (2016), p. 179. Equinet (2014), p. 6. Chopin and Do (2011), p. 91. De Vos (2007), pp. 41 and 42.

  170. 170.

    EED, art. 7. Chopin and Do (2011, p. 91) mention Bulgaria (social inclusion, education, healthcare), the Former Yugoslav Republic of Macedonia (now the Republic of North Macedonia; social protection and housing), Germany (integration of older and foreign workers), Hungary (employment), Poland (employment), Slovakia (disadvantage resulting from age in employment and occupation, social security and social advantages, healthcare, provision of goods and services including housing and education; age in employment and social security), Slovenia (employment) and the United Kingdom (employment).

  171. 171.

    Equinet (2014), pp. 6, 37 and 38.

  172. 172.

    See art. 7 EED for sexual orientation and religion or belief. Examples are found in the Netherlands and the UK. Measures relating to religion or belief are in place in Great-Britain (employment and goods and services) and Northern-Ireland (goods and services). For language, see art. 7.2 European Charter for Regional or Minority Languages (4 November 1992). Examples are found in the Former Yugoslav Republic of Macedonia (education and employment). Chopin and Do (2011), p. 91. European Commission (2009), pp. 29 and 58.

  173. 173.

    Equinet (2014), p. 45. ENAR and UKREN (2009), p. 5.

  174. 174.

    ENAR (2007b), p. 23.

  175. 175.

    Equinet (2014), p. 56.

  176. 176.

    The importance of paying attention to intersectional discrimination was highlighted in Chap. 1 (Sect. 1.2.3) and in Chap. 5 (Sect. 5.1.4) on the situation of Roma women and other vulnerable subgroups.

  177. 177.

    The RED and the EED currently do not cover dual discrimination. Equinet (2014), p. 56.

  178. 178.

    Gerapetritis (2016), p. 181.

  179. 179.

    The group-focus of positive action was addressed in Sect. 6.1.2.1.

  180. 180.

    Gerapetritis (2016), p. 4.

  181. 181.

    Id. at p. 182.

  182. 182.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 13. CERD Committee, General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent) (1 November 2002). CEDAW Committee, General Recommendation No. 25 (2004), para. 18. UNDP (2010), pp. 21 and 74. ENAR (2007b), p. 3. De Schutter (2007a), p. 762.

  183. 183.

    Gerapetritis (2016), p. 177. Equinet (2014), p. 56. European Commission (2009), p. 66. The EU framework on positive action will be discussed in detail in Chap. 8 (Sect. 8.2).

  184. 184.

    Suggested further reading: Gerapetritis (2016), pp. 177–181.

  185. 185.

    Equinet (2014, p. 29) reports that the adoption of positive action measures is obligatory in—among others—Romania, Slovenia and Sweden. It is voluntary in—among others—Denmark, Germany, Hungary, Latvia, the Netherlands, Slovakia and the UK. O’Cinneide (2012), p. 12.

  186. 186.

    Gerapetritis (2016), p. 180.

  187. 187.

    This will be discussed in Chap. 7 on the international framework on positive action and Chap. 8 on the European framework on positive action.

  188. 188.

    This could be the constitution, a statute or international law. Gerapetritis (2016), pp. 3 and 4.

  189. 189.

    According to Gerapetritis (2016, pp. 173–176), the level of institutional recognition of positive action (constitution or soft law declarations) appears to only play a minor role in relation to their effectiveness, because the adoption of such measures mainly depends on the discretion of the politicians in power. CRC Committee, General Comment No. 11 (12 February 2009), para. 26. CEDAW Committee, General Recommendation No. 25 (2004), para. 22. European Commission (2009), pp. 25 and 26. Final report Bossuyt (17 June 2002), para. 7.

  190. 190.

    Legislation is mainly used for positive action based on disabilities. For instance, see Austria, France and Ireland. The Irish quota system for equal representation of the two main religious groups in the police force is included in a statute. Commission Communication, Report on the implementation of the EU Framework for National Roma Integration Strategies (2 April 2014), p. 14. European Commission (2009), p. 29.

  191. 191.

    For instance, employers with 50 or more employees and a federal government contract of more than US$50,000 must submit a written affirmative action plan including minority, female and religious hiring goals and timetables to the government. See: USA, Executive Order 11246 (1964), Section 202(1).

  192. 192.

    For example, federal public authorities and federally regulated employers employing more than 100 persons must draw up employment equality plans to remedy the historical discrimination Aboriginals, members of visible minorities, women and people with disabilities. See: Canada, Federal Employment Equity Act (1995).

  193. 193.

    For example, public authorities and employers with more than 50 employees have the legal duty to ensure an equitable representation of the South African population in terms of ethnic origin, gender and disability, in all occupational categories and in all levels of the organisation. See: South Africa, Employment Equity Act (1998), Section 151(1).

  194. 194.

    European Commission (2009), p. 30. Suggested further reading on perceptions of positive action in the USA, Canada and South Africa, see: European Commission (2009), pp. 45–50.

  195. 195.

    European Commission (2009), p. 26. De Vos (2007), p. 12. Final report Bossuyt (17 June 2002), para. 7.

  196. 196.

    This is usually the case in the employment field. Shaw (2004), p. 13.

  197. 197.

    ENAR (2007b), p. 24. This will be discussed further in Sect. 6.3.3 on the need for political will and funding as a prerequisite to render positive action schemes successful.

  198. 198.

    European Commission (2009), p. 26.

  199. 199.

    See, for example: US Supreme Court, Griggs v. Duke Power Co. (1971). Ramos Martín (2013), p. 16.

  200. 200.

    International Centre for Migration Policy Development (ICMPD) (2008), para. 40.

  201. 201.

    These measures will be analysed in Sect. 6.2.3 on soft measures that do not provide preferential treatment to members of the target group.

  202. 202.

    De Vos (2007), p. 12.

  203. 203.

    ERIO (2010), pp. 4 and 7. De Schutter (2007a), p. 757. Hollo (2006), p. 28. Oppenheimer (1988–1990), pp. 42 and 50.

  204. 204.

    ERIO (2010), p. 10. ENAR (2008), p. 4. Bell et al. (1996), p. 234. See Sect. 6.1.1 on the different definitions of positive action. See also Sect. 6.4 on the five main justifications of positive action.

  205. 205.

    European Commission (2009), pp. 11 and 66. Cardinale (2007), p. 36. Hollo (2006), p. 41. Final report Bossuyt (17 June 2002), para. 102.

  206. 206.

    Interights (2011), p. 84. For more on this, see Sect. 6.1.1 on the varying understandings of the notion positive action, Sect. 6.1.4 on the limits of the traditional approach to equality, and Sect. 6.1.5 on the discussion whether positive action constitutes a derogation or an aspect of equality. The distinction between formal and substantive equality was first explained in Chap. 2 (Sect. 2.1.3) on the notion equality.

  207. 207.

    See, for example: South Africa, Employment Equity Act (1998), Sections 15 and 20. O’Cinneide (2012), pp. 5 and 9. Interights (2011), pp. 89 and 90.

  208. 208.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. The five main aims of positive action will be analysed in Sect. 6.4.

  209. 209.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. O’Cinneide (2012), p. 5. Hollo (2006), p. 41.

  210. 210.

    O’Cinneide (2012), p. 5. Final report Bossuyt (17 June 2002), para. 71.

  211. 211.

    For example, McCrudden (1986, pp. 223–225) proposes five basic categories; namely eradicating prohibited discrimination, purposefully facially neutral inclusive policies, outreach, preferences, and redefining merit. ENAR (2008, p. 4) and ERIO (2010, p. 11) add two categories to McCrudden’s classification: facially biased diversity policies and accommodation programmes. Bossuyt (2007) opts for three main categories: affirmative mobilisation, affirmative fairness and affirmative preference. De Schutter (2007, pp. 763–780) identifies six different types of positive action measures in the employment field, namely monitoring, redefining merit, general outreach measures targeting certain groups, individual outreach measures guaranteeing interviews, flexible quotas and strict quotas.

  212. 212.

    McCrudden (1986), p. 223. Soft measures not providing preferential treatment will be presented in Sect. 6.2.3 and strong measures involving preferential treatment in Sect. 6.2.4.

  213. 213.

    See Chap. 7 (Sect. 7.4) on the possibility of soft and strong measures in the UN framework on positive action, Chap. 8 on the apparent acceptability of strong measures in certain contexts within the CoE framework on positive action (Sect. 8.1.4) and on the role of the proportionality principles in the EU framework (Sect. 8.2).

  214. 214.

    De Schutter (2007a), p. 762.

  215. 215.

    See Sect. 6.3.4 on the availability of ethnically disaggregated data as the fourth premise of positive action. See, in particular, Sect. 6.3.4.2, where it will be explained that data needs depend on the type and the aim of positive action.

  216. 216.

    Non-preferential measures are sometimes also referred to as equal opportunities policies. See, for instance: Ramos Martín (2013), p. 18.

  217. 217.

    Bell (2007b), p. 6.

  218. 218.

    Sabbagh (2013, p. 31) explains that this is because discrimination grounds such as race enters “the picture only within the preliminary process of enlarging the set from which individuals would be selected eventually, not at the selection level itself.” Final report Bossuyt (17 June 2002), paras. 74 and 102.

  219. 219.

    According to Fredman (2002, pp. 2 and 14), the notion of equality of opportunity “steers a middle ground between formal equality and equality of results” and therefore it is an increasingly popular alternative to those two notions. See Sect. 6.1.4 for a discussion on the limits of the traditional approach to equality.

  220. 220.

    Final report Bossuyt (17 June 2002), para. 33.

  221. 221.

    Final report Bossuyt (17 June 2002), paras. 32 and 35. See Sect. 6.1.4 on the need to supplement a formal approach to equality with a substantive one.

  222. 222.

    Fredman (2002), p. 129.

  223. 223.

    Id. at p. 15.

  224. 224.

    Id. at pp. 14 and 130.

  225. 225.

    McCrudden (1986), p. 223.

  226. 226.

    O’Cinneide (2012), p. 5.

  227. 227.

    Cohen (2007), p. 3. Equality Advice Centre (2006).

  228. 228.

    ERIO (2010), p. 10. Final report Bossuyt (17 June 2002), para. 73.

  229. 229.

    According to Oppenheimer (1988–1990, pp. 48–50) such commitment has two aspects, namely active and passive non-discrimination. The eradication of discrimination, as described here, qualifies as active non-discrimination. On the other hand, passive non-discrimination relates to decisions to hire (in employment) or admit (in education) complainants who alleged discriminatory exclusion, because “the remedy is likely to be perceived as a form of affirmative action”.

  230. 230.

    ENAR (2008), p. 4. For more on equality mainstreaming and how it differs from positive action, see Sect. 6.1.3.4.

  231. 231.

    O’Cinneide (2012), p. 5. De Schutter (2007a), pp. 758, 763 and 765.

  232. 232.

    Ringelheim and De Schutter (2010), p. 38.

  233. 233.

    Such problems are more complex. O’Cinneide (2012), p. 5. This argument is most commonly formulated in relation to strong measures, which involve preferential treatment. It will be explained in Sect. 6.5.3 that this not necessarily needs to constitute a problem, considering that positive action should not be implemented in isolation.

  234. 234.

    McCrudden (1986, p. 223) uses the term facially neutral but purposefully inclusionary policies. O’Cinneide (2012, pp. 5 and 6) uses the term purposefully inclusive policies.

  235. 235.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. European Commission (2009), pp. 40, 56 and 58. ICMPD (2008), paras. 10–12. McCrudden (1986), p. 223.

  236. 236.

    ENAR (2008), p. 4. O’Cinneide (2012), pp. 5 and 6.

  237. 237.

    O’Cinneide (2012), pp. 5 and 6.

  238. 238.

    Id. at p. 6.

  239. 239.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. Sabbagh (2013), p. 31. O’Cinneide (2012), p. 6. Ringelheim and De Schutter (2010), p. 38. ICMPD (2008), para. 13. McCrudden (1986),), p. 224.

  240. 240.

    ENAR (2008), p. 4. De Schutter (2007a), p. 773. Final report Bossuyt (17 June 2002), para. 72.

  241. 241.

    Individual outreach will be considered in Sect. 6.2.4.1 on strong positive action measures involving preferential treatment.

  242. 242.

    ENAR (2008), p. 4. McCrudden (1986), p. 223.

  243. 243.

    De Schutter (2007a), pp. 772 and 773.

  244. 244.

    McCrudden (1986), p. 224.

  245. 245.

    O’Cinneide (2012), p. 6.

  246. 246.

    In the UK, for instance, the Household Cavalry initiated community and school visits to inform Black and Asian young men and their families about what the Army does and why it is a good career choice, so as to increase the recruitment among these groups after a formal investigation showed they were indirectly discriminated against. Four years later, the recruitment among these groups increased from 0% to approximately 14%. Cohen (2007), p. 4.

  247. 247.

    O’Cinneide (2012), p. 6. Interights (2011), p. 87. ERIO (2010), p. 7. ENAR (2008), p. 4. De Schutter (2007a), pp. 772 and 773.

  248. 248.

    Interights (2011), p. 87. McCrudden (1986), p. 224.

  249. 249.

    See, for example: UK, Sex Discrimination Act (England and Wales) (1975), Section 48. UK, Race Relations Act (England and Wales) (1976), Section 38. Bell (2007b), p. 6.

  250. 250.

    Bell (2007b), p. 6.

  251. 251.

    Examples include diversity, language, vocational and employment training. See: UK, Race Relations Act (England and Wales) (1976), Sections 37 and 38. UK, Sex Discrimination Act (England and Wales) (1975), Section 48. European Commission (2009), pp. 40 and 56. ICMPD (2008), para. 14. De Schutter (2007a), p. 763. De Vos (2007), p. 42. McCrudden (1986), p. 224.

  252. 252.

    O’Cinneide (2012), p. 6.

  253. 253.

    ERIO (2010), p. 11.

  254. 254.

    Final report Bossuyt (17 June 2002), para. 72.

  255. 255.

    Equinet (2014), p. 52. Interights (2011), p. 85. De Schutter (2007a), p. 773. The five main aims of positive action will be analysed in Sect. 6.4. Equality of opportunity was addressed in Sect. 6.1.4.

  256. 256.

    O’Cinneide (2012), pp. 6 and 7. Compensation will be discussed when presenting the remedial aim of positive action in Sect. 6.4.1.

  257. 257.

    O’Cinneide (2012), pp. 6 and 7. Interights (2011), p. 85.

  258. 258.

    The measures mentioned here (soft targets and the reservation of places) are sometimes included in the notion outreach in the typology of positive action, but the author will consider them separately.

  259. 259.

    ENAR (2008), p. 4.

  260. 260.

    ERIO (2010), p. 12.

  261. 261.

    Equinet (2014, p. 5) mentions France, Poland, Portugal and Sweden. The need for data will be highlighted in Sect. 6.3.4.

  262. 262.

    Cohen (2007), pp. 4 and 5.

  263. 263.

    See, for instance: UK Home Office (2011), pp. 3 and 7. O’Cinneide (2012), p. 6.

  264. 264.

    O’Cinneide (2012), p. 6. De Schutter (2007a), p. 774.

  265. 265.

    De Schutter (2007a), p. 774.

  266. 266.

    Such preferential measures are sometimes referred to as positive action measures in their strict sense. Ramos Martín (2013), p. 18. Sabbagh (2013), pp. 31 and 32. Final report Bossuyt (17 June 2002), paras. 72 and 78.

  267. 267.

    See Sect. 6.2.3 on four soft measures that do not provide preferential treatment.

  268. 268.

    Bell (2007b), p. 6.

  269. 269.

    Final report Bossuyt (17 June 2002), para. 35. The notion equality of results was mentioned in Sect. 6.1.4 when considering the limits of the formal approach to equality. See also Chap. 2 (Sect. 2.1.3) on the distinction between formal and substantive equality.

  270. 270.

    Fredman (2002), pp. 2, 11 and 12.

  271. 271.

    Sabbagh (2013), pp. 31 and 32. According to Final report Bossuyt (17 June 2002, para. 77) this can involve the application of lower standards to members of disadvantaged groups and/or the imposition of quota.

  272. 272.

    Group outreach was analysed in Sect. 6.2.3.3 on soft types of positive action measures.

  273. 273.

    Vocational training schemes that are only open to workers above a certain age limit or to members of a particular minority group are considered as such a strong form of positive action. Bell (2007b), p. 6. See, for instance: Germany, Hesse Women’s Equality Act for Public Administrations (1993), para. 7 (“Allocation of training places: 1. In trained occupations in which women are underrepresented, they are to be taken into account to the extent of at least one half in the allocation of training places. The first sentence shall not apply to training procedures in which the State exclusively provides training. 2. Suitable measures are to be taken to draw women’s attention to vacant training places in occupations within the meaning of the first sentence of subparagraph 1 and to induce them to apply. If despite such measures there are not enough applications from women, more than half of the training places may be filled with men, contrary to the first sentence of subparagraph 1.”)

  274. 274.

    See, for example: Germany, Hesse Women’s Equality Act for Public Administrations (1993), para. 9 (“Interviews: In sectors in which women are underrepresented, at least as many women as men, or all the women applicants, shall be called to interview, if interviews are carried out, if they satisfy the conditions laid down by law or otherwise for appointment to the post or the office to be conferred”). O’Cinneide (2012), p. 6. De Schutter (2007a), pp. 771 and 774.

  275. 275.

    De Schutter (2007a), p. 763.

  276. 276.

    O’Cinneide (2012), p. 6. De Schutter (2007a), p. 774.

  277. 277.

    De Schutter (2007a), p. 774.

  278. 278.

    Preferences can be given at any point of the employment relationship (hiring, promotion, selection for senior management, redundancy). O’Cinneide (2012), p. 7. McCrudden (1986), p. 224.

  279. 279.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. O’Cinneide (2012), p. 7. McCrudden (1986), p. 224.

  280. 280.

    McCrudden (1986), p. 223.

  281. 281.

    Interights (2011), pp. 89 and 90. Oppenheimer (1988–1990), p. 43.

  282. 282.

    O’Cinneide (2012), p. 7. McCrudden (1986), p. 224.

  283. 283.

    Quotas are however not allowed. See, for example: US Supreme Court, Regents of the University of California v. Bakke (1978), p. 306. Gerapetritis (2016), p. 177. Oppenheimer (1988–1990), p. 46. The promotion of diversity is cited as the second aim of positive action in Sect. 6.4.2.

  284. 284.

    See Sect. 6.4.2 on the enhancement of culture by promoting diversity.

  285. 285.

    O’Cinneide (2012), p. 7. De Schutter (2007a), p. 775.

  286. 286.

    De Schutter (2007a), p. 763.

  287. 287.

    De Schutter (2007a), p. 771. Schiek (1998), pp. 148–166. The EU’s focus on gender-based positive action in employment and the CJEU’s case law on such measures will be analysed in Chap. 8 (Sects. 8.2.1 and 8.2.2).

  288. 288.

    McCrudden (1986), p. 224.

  289. 289.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 22. Oppenheimer (1988–1990), p. 43.

  290. 290.

    As explained in Sect. 6.1.1, the author avoids the use of the notion reverse or positive discrimination. Gerapetritis (2016), p. 5. ENAR (2008), pp. 4 and 35. Fredman (2002), p. 126. McCrudden (1986), p. 224.

  291. 291.

    De Schutter (2007a), p. 763.

  292. 292.

    McCrudden (1986, pp. 224 and 226) explains that a quota may either attribute an absolute preference (the next x number of persons to be hired shall be of a particular disadvantaged group) or a hiring ratio (at least x per cent of the next x number of persons hired must be a member of a particular disadvantaged group). See also: O’Cinneide (2012), p. 7. De Schutter (2007a), p. 757. Oppenheimer (1988–1990), p. 43.

  293. 293.

    McCrudden (1986), p. 224. Fullinwider (1980), p. 17.

  294. 294.

    ERIO (2010), p. 7.

  295. 295.

    EED, art. 7.2. Equinet (2014, pp. 6, 36 and 44) cites Austria, Belgium, Czech Republic, France, and Ireland. According to De Vos (2007, pp. 43–47), the opt outs or compensatory payments for not meeting the quota reduces the efficiency of such a system. Chopin and Do (2011), p. 91. Suggested further reading: Waddington (1996), pp. 62–101.

  296. 296.

    O’Cinneide (2012, p. 7) refers to Norway, where legislation was implemented in 2004 requiring companies to ensure that their boards of management were composed of 40% female members by 2008 on punishment of a fine or dissolution of the board.

  297. 297.

    Equinet (2014, pp. 6, 46 and 47) cites France, Italy, Poland, Portugal, Slovenia and the UK. Quotas in electoral legislation or in selection procedures of political parties have increased the representation of women in parliaments beyond minimum levels. Szyszczak (2006). Suggested further reading: Russell and O’Cinneide (2003), pp. 587–614.

  298. 298.

    See, for example: US Supreme Court, Regents of the University of California v. Bakke (1978), pp. 319 and 320. This will be discussed further in Sect. 6.4.1 when analysing the remedial aim of positive action. Oppenheimer (1988–1990), p. 43.

  299. 299.

    Interights (2011), pp. 87 and 89. De Schutter (2007a), pp. 757 and 762. The limits of the formal approach to equality were explored in Sect. 6.1.4.

  300. 300.

    European Commission (2009), pp. 24 and 25. Ringelheim (2008/2009), pp. 55 and 56.

  301. 301.

    Proportionality was identified as a key element of positive action in Sect. 6.1.2.2. See also Chap. 8 (Sect. 8.2.2) for an analysis of the CJEU’s case law on gender-based positive action in employment.

  302. 302.

    This will be picked up again in Sect. 6.5.3 on the potential implications of positive action on society as a whole. Gerapetritis (2016), p. 62.

  303. 303.

    This argument will be picked up again in Chap. 8 (Sect. 8.2.4) when discussing the opportunities that arise for future case law of the CJEU on positive action based on other discrimination grounds than gender. In India, for instance, federal and State laws impose the reservation of a certain number of seats for members from lower casts in parliament, in the public service and in leading universities. India, Constitution (26 January 1950; modified 1 December 2007), arts. 14–17. O’Cinneide (2012), p. 8.

  304. 304.

    It concerns the soft measures in Sect. 6.2.3 and the strong measures in Sects. 6.2.4.1 and 6.2.4.2.

  305. 305.

    McCrudden (1986), p. 225.

  306. 306.

    Membership of the disadvantaged group constitutes a necessary condition for qualification. Interights (2011), p. 84. McCrudden (1986), p. 225.

  307. 307.

    McCrudden (1986), p. 223.

  308. 308.

    O’Cinneide (2012), p. 8. McCrudden (1986), p. 225.

  309. 309.

    De Vos (2007), p. 12.

  310. 310.

    O’Cinneide (2012), p. 8. Cohen (2007), p. 5.

  311. 311.

    See, for example: US Supreme Court, Grutter v. Bollinger et al. (2003), pp. 307 and 308. The promotion of diversity will be cited as the second aim of positive action in Sect. 6.4.2.

  312. 312.

    See Chap. 11 on inter-cultural mediation to enhance Roma inclusion.

  313. 313.

    The importance of a strong legal framework protecting the rights of data subjects was emphasised in Chap. 3 (Sects. 3.3–3.7), Chap. 4 (Sect. 4.2.5) and Chap. 5 (Sect. 5.7). Awareness-raising, active participation and political will when were considered throughout Part I, but special consideration was given to these three key elements in Chap. 5 (Sect. 5.8) on challenges to the collection of ethnic data on Roma.

  314. 314.

    See Sect. 6.1.2 on the key elements of positive action (proportional and temporary group-based measures). See also Chap. 7 on the international framework on positive action and Chap. 8 on the European framework on positive action.

  315. 315.

    Allen QC (2007), pp. 22 and 23.

  316. 316.

    Allen QC (2007), p. 22. Intersectionality was stressed in Sect. 6.2.1 on the different discrimination grounds and beneficiaries according to which positive action could be tailored. See also Chap. 1 (Sect. 1.2.3) on the particular vulnerability of Roma women and other sub-groups, and Chap. 5 (Sect. 5.1.3) where it was explained that existing data on Roma have insufficient regard for the gender dimension and therefore risk overlooking intersectional discrimination.

  317. 317.

    O’Cinneide (2012), p. 12. ENAR and UKREN (2009), p. 6. Allen QC (2007), pp. 22 and 23.

  318. 318.

    O’Cinneide (2012), p. 25.

  319. 319.

    Kennedy (2013), p. 15.

  320. 320.

    Allen QC (2007), p. 23. Chapter 8 (Sect. 8.2.2) will zoom in on the case law of the CJEU and the role of—proportionality.

  321. 321.

    See Chap. 3 (Sect. 3.7.5) on active and meaningful involvement as the fifth organisational principle for personal data processing, and Chap. 5 on awareness-raising (Sect. 5.8.1) and active participation (Sect. 5.8.2) as key principles of ethnic data collection on Roma. Political will was identified as the third key element of ethnic data collection (Sect. 5.8.3). It will be discussed in relation to positive action in Sect. 6.3.3. See also Chap. 12 (Sect. 12.2) on the three key elements identified throughout the book.

  322. 322.

    Final report Bossuyt (17 June 2002), para. 39.

  323. 323.

    ENAR (2007b), p. 25.

  324. 324.

    European Commission (2009), pp. 38, 63 and 65.

  325. 325.

    European Commission (2009), p. 65. As will be explained, Sect. 6.5.2 perceptions by (members of) non-targeted groups may negatively affect positive action.

  326. 326.

    ENAR (2007b), p. 23. Section 6.1.1 explored the varying understandings of the notion positive action.

  327. 327.

    Equinet (2014), p. 56. O’Cinneide (2012), p. 14. European Commission (2009), p. 63. Allen QC (2007), pp. 22 and 23.

  328. 328.

    Allen QC (2007), p. 23.

  329. 329.

    O’Cinneide (2012), p. 25.

  330. 330.

    Equinet (2014), pp. 48–50. ENAR (2007b), pp. 22 and 23.

  331. 331.

    Equinet (2014), pp. 48 and 49.

  332. 332.

    European Commission (2009), pp. 38, 63 and 65. Final report Bossuyt (17 June 2002), para. 106.

  333. 333.

    European Commission (2009), p. 63.

  334. 334.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 18. ICMPD (2008), paras. 3 and 4. ENAR (2007b), p. 20.

  335. 335.

    ENAR and UKREN (2009), p. 6.

  336. 336.

    See Chap. 5 (Sect. 5.8.3) on political will as a key principle of ethnic data collection on Roma. See also Chap. 12 (Sect. 12.2.3) on political will as a key element of ethnic data collection and positive action.

  337. 337.

    Equinet (2014), p. 57. The primary responsibility of States regarding positive action was previously highlighted in Sect. 6.2.1.5.

  338. 338.

    O’Cinneide (2012), p. 12. ENAR and UKREN (2009), p. 6. Allen QC (2007), pp. 22 and 23.

  339. 339.

    ENAR (2007b), p. 20.

  340. 340.

    The need for ethnic data will be highlighted in Sect. 6.3.4.

  341. 341.

    O’Cinneide (2012), p. 12.

  342. 342.

    European Commission (2009), p. 38. ENAR (2007b), p. 20.

  343. 343.

    This was previously done directly through the PROGRESS programme (2007–2013) and now goes via its successor, the EU Programme for Employment and Social Innovation (2014–2020) and indirectly through the Structural Funds and the European Agricultural Fund for Rural Development. Commission Communication, An EU Framework for National Roma Integration Strategies up to 2020 (5 April 2011), p. 9. Sobotka and Vermeersch (2012), p. 811. ENAR (2007b), p. 20. Kostadinova (2006), pp. 1 and 6. Issues with the funding of positive action for Roma will be addressed Chap. 9 (Sect. 9.2.5).

  344. 344.

    See Chap. 9 (Sect. 9.2.5) on how inadequate and short-term funding of positive action limits the achievement of long-term effects. See also: Commission Communication, An EU Framework for National Roma Integration Strategies up to 2020 (5 April 2011), p. 9. ENAR (2007b), p. 18.

  345. 345.

    See, inter alia, Chap. 1 (Sect. 1.3) on ethnic data collection and positive action as two missing pieces of Roma inclusion and Chap. 4 on the implementation, monitoring and evaluation of policies as the fourth benefit of positive action (Sect. 4.1.4) and on ethnic monitoring in employment and service delivery as the third source of ethnic data collection (Sect. 4.3.3).

  346. 346.

    McCrudden (1986), p. 225.

  347. 347.

    Examples include: CERD Committee, General Recommendation No. 32 (24 September 2009), paras. 17 and 37. CESCR Committee, General Comment No. 1: Reporting by State Parties (27 July 1981), para. 3. CRC Committee, General Comment No. 11 (12 February 2009), para. 26. CESCR Committee, Concluding Observations on Ukraine (13 June 2014), para. 8. CESCR Committee, Concluding Observations on Hungary (16 January 2008), para. 34.

  348. 348.

    See, for example: ACFC, First Opinion on Ireland (22 May 2003), para. 36. ACFC, First Opinion on Germany (1 March 2002), paras. 23 and 24.

  349. 349.

    Equinet (2014), p. 45. European Commission (2009), pp. 40 and 41. Farkas (2007), p. 5. The lack of (reliable) ethnic data in Europe and how this affects positive action was previously mentioned in Chap. 1 (Sect. 1.3) when introducing the main topics of the book, in Chap. 3 (Sect. 3.1.2) when highlighting that ethnic data collection for equality and anti-discrimination purposes is strongly encouraged by international and European actors, in Chap. 4 (Sects. 4.1 and 4.2) when reviewing the main benefits and the risks of ethnic data collection, and in Chap. 5 (Sect. 5.1) on the large data gaps on Roma in Europe.

  350. 350.

    Equinet (2014), p. 43. Like the collection of ethnic data for anti-discrimination purposes (see Chap. 3 Sect. 3.1.1), the adoption of positive action for racial and ethnic groups is also optional in the EU framework (see Chap. 8 Sect. 8.2.3).

  351. 351.

    CERD Committee, General Recommendation No. 32 (24 September 2009), para. 17. Fredman (2009), p. 84. Kóczé (2009), pp. 62 and 63. See also Sect. 6.2.1 for a consideration of the discrimination grounds (Sect. 6.2.1.1) and different beneficiaries (Sect. 6.2.1.2) positive action can focus on, and Sect. 6.3.1 where the need for special attention to multiple disadvantages was stressed. For more on intersectional discrimination, see Chap. 1 (Sect. 1.2.3.2) on the situation of Roma women, Chap. 3 (Sect. 3.1.2) on international and European calls for ethnic data collection for equality and anti-discrimination purposes, and Chap. 5 (Sect. 5.1.4) on how the gender dimension often is not given sufficient attention in current data collection practices. The importance of adopting a gender approach to positive action will also be stressed in Chap. 11 (Sect. 11.8) on inter-cultural mediation in the Roma context.

  352. 352.

    Equinet (2014), p. 45.

  353. 353.

    Id.

  354. 354.

    Equinet (2014), p. 43. Allen QC (2007), pp. 22 and 23. The different data sources and their complementarity was previous discussed generally in Chap. 4 (Sect. 4.3) and specifically in relation to the Roma minority in Chap. 5 (Sect. 5.2).

  355. 355.

    Chopin et al. (2014), p. 34. McDonald and Negrin (2010), p. 16. European Commission (2009), p. 64. Ringelheim (2008/2009), pp. 53–55. De Schutter (2007a), p. 856. Makkonen (2006), pp. 5, 12, 14, 15, 19, 20, 59, 84 and 98. The link between ethnic data and positive action was previously explained in Chap. 1 (Sect. 1.3) upon the introduction of the two main topics of the book. See also Chap. 2 (Sect. 2.1.2) on the notions direct and indirect discrimination and the link with statistics, Chap. 4 (Sect. 4.1.4) on the implementation, monitoring and evaluation of policies as one of the main benefits of ethnic data collection for equality and anti-discrimination purposes, and Chap. 5 (Sect. 5.1.1) on international and European calls for data on Roma.

  356. 356.

    Guidance Note of the United Nations Secretary-General on Racial Discrimination and Protection of Minorities (March 2013), p. 23. De Schutter (2007a), p. 856. ENAR (2007b), p. 20. Simon (2007), p. 24.

  357. 357.

    De Schutter (2007a), p. 856. McCrudden (2003), p. 18.

  358. 358.

    Equinet (2014), p. 43. Ramos Martín (2013), pp. 16 and 17. Ringelheim (2008/2009), p. 52. Hollo (2006), p. 41.

  359. 359.

    Equinet (2014), p. 43. Simon (2007), pp. 24 and 25. McCrudden (1986), p. 225. The uncovering of discrimination was cited as the second benefit of ethnic data collection in Chap. 4 (Sect. 4.1.2).

  360. 360.

    European Commission (2009), pp. 38 and 39. See also: ICMPD (2008), para. 3.

  361. 361.

    Equinet (2014), p. 43. ENAR (2007a), p. 4.

  362. 362.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 18.

  363. 363.

    Chopin et al. (2014), pp. 33 and 34. European Commission (2009), p. 38. ICMPD (2008), para. 3. See Sect. 6.2.1 for an overview of how positive action can differ based on discrimination grounds, beneficiaries, fields, nature and implementation. See also Sect. 6.2.2 for an introduction to the distinction between positive action measures that provide preferential treatment and those that do not.

  364. 364.

    Cohen (2007), p. 6.

  365. 365.

    Equinet (2014), p. 56.

  366. 366.

    The idea of goals and timetables is mainly associated with following soft positive action measures: the eradication of indirect discrimination, neutral but purposefully inclusive policies, outreach measures and facially biased diversity policies. Simon (2007), p. 25. McCrudden (1986), pp. 225 and 226. See Sect. 6.2.3 for an overview of soft positive action measures and Sect. 6.2.4 for strong positive action measures.

  367. 367.

    McCrudden (1986), p. 226.

  368. 368.

    O’Cinneide (2012), p. 16. De Schutter (2007a), p. 856. ENAR (2007a), p. 4. The five main aims positive action can pursue will be addressed in Sect. 6.4.

  369. 369.

    Equinet (2014), p. 56. European Commission (2009), p. 38.

  370. 370.

    European Commission (2009), p. 38. De Schutter (2007a), p. 856. Simon (2007), p. 25. The temporary nature was cited as a key element of positive action in Sect. 6.1.2.3.

  371. 371.

    Equinet (2014), p. 56. European Commission (2009), pp. 39, 43 and 65.

  372. 372.

    Simon (2007), p. 25.

  373. 373.

    European Commission (2009), pp. 39, 55, 64 and 65.

  374. 374.

    Id. at p. 55.

  375. 375.

    Equinet (2014), p. 45.

  376. 376.

    European Commission (2009), p. 40.

  377. 377.

    Szyszczak (2006).

  378. 378.

    Szyszczak (2006) states that this is particularly relevant with regard to forward-looking positive action measures, namely those promoting diversity. See Sect. 6.4.2 on the enhancement of culture through the promotion of diversity as the second aim that positive action measures can pursue.

  379. 379.

    De Schutter (2007b). The five main aims of positive action will be analysed in Sect. 6.4.

  380. 380.

    De Schutter (2007b).

  381. 381.

    Report of the Special Rapporteur on combating racism, racial discrimination, xenophobia and related intolerance on the comprehensive implementation of and follow-up to the Durban Declaration and Programme of Action (20 August 2015), para. 29. Equality data collection was defined in Chap. 1 (Sect. 1.3.1) upon the introduction of ethnic data collection as one of the two main topics of this book.

  382. 382.

    This was previously mentioned in Chap. 4 (Sect. 4.4.3) on the terminology and categories used in data collection efforts and in Chap. 5 (Sect. 5.3.2) when emphasising the importance of including open-ended categories when constructing ethnic categories for Roma.

  383. 383.

    UNDP (2010), p. 16.

  384. 384.

    Ringelheim and De Schutter (2010, p. 38) call this general monitoring purposes. De Schutter (2007b).

  385. 385.

    According to McCrudden (1986, p. 225), the first two goals are mainly associated with the soft positive action eradication of discrimination. Ringelheim and De Schutter (2010, p. 38) call the first two goals targeted monitoring purposes. De Schutter (2007b). ENAR (2007b), p. 11.

  386. 386.

    Personal data was defined in Chap. 2 (Sect. 2.6.4) when introducing the difference between anonymous, personal and sensitive data.

  387. 387.

    De Schutter (2007b). ENAR (2007b), p. 11. Group outreach was analysed as a soft measure in Sect. 6.2.3.3.

  388. 388.

    Ringelheim and De Schutter (2010), p. 38.

  389. 389.

    Ringelheim and De Schutter (2010), p. 38. ENAR (2007b), p. 11. De Schutter (2007b). Individual outreach and preferential treatment were cited as strong measures in Sect. 6.2.4.

  390. 390.

    Resolution of the European Parliament on Non-Discrimination and Equal Opportunities for All—A Framework Strategy (14 June 2006), para. 21. Ringelheim and De Schutter (2010), p. 38. Ringelheim (2008/2009), p. 55. See Sect. 6.2.4 for a discussion on strong measures that involve preferential treatment.

  391. 391.

    See Sect. 6.2.3 for a discussion on soft measures that do not provide preferential treatment.

  392. 392.

    Both targeted and aggregate data are useful in this regard. Ringelheim and De Schutter (2010), p. 38.

  393. 393.

    Gerapetritis (2016), p. 250. Equinet (2014, p. 27) refers to three reasons for positive action: (1) elimination of barriers in society, (2) redress of wrongs caused in the past accompanied by increasing participation of the vulnerable group’s representatives in public affairs, and (3) strengthening diversity in society.

  394. 394.

    Gerapetritis (2016), pp. 2 and 41.

  395. 395.

    The potential side affects and limitations of positive action will be discussed in Sect. 6.5.

  396. 396.

    Report of the Special Rapporteur on racism, racial discrimination, xenophobia and related forms of intolerance (19 May 2009), para. 38. Gerapetritis (2016), pp. 41, 42 and 250. Equinet (2014), p. 27. Fredman (2002), p. 259. O’Cinneide (2012), p. 4. Bell (2007b), p. 5. De Schutter (2007a), p. 780. Final report Bossuyt (17 June 2002), para. 17. Special measures pursuing the remedial aim are sometimes referred to as backward-looking positive action. See, for instance: De Schutter (2007a), pp. 819 and 820. De Vos (2007), p. 12. The remedial aim clearly reflects the group-focus of positive action, which was discussed in Sect. 6.1.2.1 as a key element of this human rights instrument. See: Henrard (2007), p. 29. Bell and Waddington (2003), pp. 354 and 355. The distinction between equality in law and equality in fact was explained in Chap. 2 (Sect. 2.1.3). See also Sect. 6.1.4 on the limits of the traditional approach to equality.

  397. 397.

    See, for example, the reference to broad remedial purposes in: US Supreme Court, United Steelworkers of America v. Weber (1979); remedial settings in the majority ruling US Supreme Court, Richmond v. Croson (1989), p. 493. Gerapetritis (2016), p. 151.

  398. 398.

    See, for example: US Supreme Court, United States v. Paradise (1987), pp. 171–77: the State of Alabama may impose quotas to promote Black troopers because it is considered to be the only method that could lead to success, taking into consideration their systematic exclusion from such employment in the past and the failure to meet goals for hiring and promotion imposed by the court in the past. Oppenheimer (1988–1990), p. 45.

  399. 399.

    Equinet (2014), p. 9.

  400. 400.

    Justice Thurgood Marshall (concurred in the judgment in part and dissented) stated that “(a)t every point from birth to death the impact of the past is reflected in the still disfavoured position of the Negro”. US Supreme Court, Regents of the University of California v. Bakke (1978), p. 306. Gerapetritis (2016), p. 41. This will be discussed further in Sect. 6.4.2 on the cultural aim.

  401. 401.

    Gerapetritis (2016), p. 41.

  402. 402.

    Id. at p. 219.

  403. 403.

    Final report Bossuyt (17 June 2002), paras. 18 and 29. Fredman (2002), p. 151.

  404. 404.

    Ramos Martín (2013), p. 16. O’Cinneide (2012), p. 13. Bell (2007b), p. 5. De Schutter (2007a), pp. 819 and 820. Henrard (2007), p. 29.

  405. 405.

    Fredman (2002), p. 259. De Schutter (2007a), p. 757.

  406. 406.

    Ramos Martín (2013), p. 16. De Vos (2007), p. 12. McCrudden (1986), p. 238.

  407. 407.

    De Schutter (2007a), pp. 819 and 820. For an analysis of the CJEU’s case law on positive action, see Chap. 8 (Sect. 8.2.2).

  408. 408.

    Veldman (1999), p. 287.

  409. 409.

    Sabbagh (2013), pp. 30, 32 and 33 (argument) and 39–41 (limitations of his argument).

  410. 410.

    Id. at pp. 32–35.

  411. 411.

    Sabbagh (2013), p. 37. See also: Loury (1995), p. 118.

  412. 412.

    Sabbagh (2013), p. 37.

  413. 413.

    Id. at p. 42.

  414. 414.

    Id. at p. 33 (reference 3).

  415. 415.

    See Chap. 9 (Sect. 9.1.2.1) on the remedial aim in the framework of positive action for Roma.

  416. 416.

    Henrard (2007, p. 29) states that the cultural aim is preventing rather than compensatory. According to De Schutter, the establishment or maintenance of diversity in a specific setting can even be an aim in situations where there are no inequalities to be remedied. Gerapetritis (2016), pp. 42 and 259. De Schutter (2007a), p. 759.

  417. 417.

    Gerapetritis (2016), pp. 63, 64 and 251. European Commission (2011), p. 9. De Schutter (2007a), pp. 819 and 820. Szyszczak (2006). The notion pluralism was discussed in Chap. 2 (Sect. 2.3.3).

  418. 418.

    Fredman (2002), pp. 156 and 157.

  419. 419.

    Gerapetritis (2016, p. 55) explains “(s)tereotyping suggests that a certain category of people have the same characteristics which are normally considered negative”. See also: Manfredi (2017). O’Cinneide (2012), p. 3. Equality Advice Centre (2006). Anderson (2002), p. 1270. Suggested further reading on how people think about and respond to diversity, including problems with regard to prejudice and discrimination towards diverse groups, see: Jones (2014).

  420. 420.

    Anderson (2002), p. 1270.

  421. 421.

    With regard to broadcasting, it is essential to public welfare that information from diverse sources is disseminated as widely as possible. See among others: US Supreme Court, Associated Press v. United States (1945), p. 20. US Supreme Court, Metro Broadcasting, Inc. v. Federal Communications Commission (1990), p. 549. Gerapetritis (2016), pp. 66 and 219.

  422. 422.

    See, for example: US Supreme Court, Regents of the University of California v. Bakke (1978), where Justice Powell pointed to racial diversity as the only sound justification for race-conscious policies. Quota are not allowed. See also US Supreme Court, Grutter v. Bollinger (2003), pp. 342 and 343. Gerapetritis (2016), pp. 220 and 221. O’Cinneide (2012), p. 8. Cohen (2007), p. 6. Van Gerven (2005), pp. 177 and 178. This was previously addressed in Sect. 6.2.4.2 on strong measures that involve preferential treatment. Suggested further reading on the shift from equality to diversity in discourses on race in the USA and the role of the Bakke ruling therein, see: Carr (2018). Suggested further reading on diversity in the US Supreme Court’s rulings, see: Sabbagh (2007), pp. 31–48.

  423. 423.

    Gerapetritis (2016), pp. 63–64.

  424. 424.

    Various authors refer to US Supreme Court, Grutter v. Bollinger (2003) as the point where the preference for the diversity purpose over the compensatory aim was clear, because the Court confirmed its Bakke ruling. Such preference was later confirmed. See, for instance: US Supreme Court, Parents Involved in Community Schools v. Seattle School District No. 1 (2007). Gerapetritis (2016), pp. 65, 66, 221, 222 and 232. Cohen (2007), p. 6. Several authors wonder whether the preference of the diversity approach over the compensatory one in the USA is perhaps merely opportunistic, because it draws the attention away from the very sensitive issue of past discrimination to diversity, which is a more objective, race-neutral issue. See, for instance: Gerapetritis (2016), p. 222. Schuck (2002), pp. 34–37. Rubenfeld (1997), pp. 443, 471 and 472. In the words of Gerapetritis (2016, pp. 65 and 66), diversity has operated “as a cohesion mechanism aiming at melting identities into a single national pot” and as a substitute to remedial measures.

  425. 425.

    Gerapetritis (2016), pp. 66 and 219. As will be seen in Chap. 8 (Sect. 8.2), the CJEU’s case law on positive is limited to gender-based positive action in public employment. It remains to be seen whether the CJEU will adopt the same or a different view in its future case law on positive action for racial and ethnic groups in employment, education, housing and health care, taking into consideration that different groups have different needs based on their different history and experience with discrimination.

  426. 426.

    Shaw (2004), p. 13. Suggested further reading: Barmes (2003), pp. 200–213. Barmes and Ashtiany (2003), pp. 274–296.

  427. 427.

    ENAR (2008), p. 3.

  428. 428.

    Shaw (2004), p. 13.

  429. 429.

    Gerapetritis (2016), p. 64.

  430. 430.

    European Commission (2009), pp. 40, 62 and 63. McCrudden and Prechal (2009), p. 38. De Schutter (2007a), p. 780.

  431. 431.

    It concerns Roman Catholics and Protestants. Fredman (2002), p. 190.

  432. 432.

    Gerapetritis (2016, pp. 2, 70 and 71) wonders at the same time how to translate such a theoretical concept into reality as critical mass may fluctuate from mere participation to proportionate representation. He states that the choice will vary according to whether diversity is process (mere participation to allow members of disadvantaged groups to express their opinion without fearing isolation) or results-oriented (requires proportionate representation).

  433. 433.

    Gerapetritis (2016, pp. 29, 68–71, 251 and 252) warns that the claim that increased participation will lead to a better quality of decisions, cannot be empirically substantiated and should be considered as a rather formalistic goal. He points out that in Europe, women do apply gender solidarity criteria when taking decisions. On the other hand, in the USA and elsewhere, racial minority positive action beneficiaries do not appear to be rendering race-conscious decisions but contribute by using their own experience and social understanding. Suggested further reading: O’Cinneide (2012), pp. 3 and 4. ENAR (2007b), p. 14. Final report Bossuyt (17 June 2002), para. 23. Fredman (2002), pp. 22, 23 and 153–155. McCrudden (1986), p. 239.

  434. 434.

    Such under-representation is often due to past discrimination. This is the idea of a representative democracy. More broadly, quotas and targets can increase the participation of under-represented groups. Gerapetritis (2016), pp. 29 and 179. Ramos Martín (2013), p. 18. O’Cinneide (2012), p. 8.

  435. 435.

    Final report Bossuyt (17 June 2002), para. 24.

  436. 436.

    Gerapetritis (2016), p. 219.

  437. 437.

    For an overview of the main arguments, see among others: Card (2005). Killenbeck (2004).

  438. 438.

    Ingram (2000), pp. 42 and 43. Posner (1974), p. 12.

  439. 439.

    This goes against the very idea of promoting diversity by eliminating perceptions and assumptions. Gerapetritis (2016), p. 67. Ingram (2000), pp. 42 and 43.

  440. 440.

    US Supreme Court, Metro Broadcasting, Inc. v. Federal Communications Commission (1990), p. 547.

  441. 441.

    Suggested reading on this: Gerapetritis (2016), pp. 68–70. For more on the possible side effects of positive action, see Sect. 6.5.

  442. 442.

    Following Gerapetritis (2016, pp. 70 and 71) this could range from mere participation to proportional representation. The appropriate level of representation will depend on the process or result-oriented operation of diversity. Whereas critical mass representation suffices for the former, proportionate representation is more appropriate for the latter. Suggested further reading on how diversity is measures and when diversity is considered sufficient by the Supreme Court, see: Ngov (2017), pp. 423–462.

  443. 443.

    O’Cinneide (2012), p. 15. See also: Collins (2003), pp. 16–43.

  444. 444.

    Gerapetritis (2016), pp. 71 and 250.

  445. 445.

    The other two are compensation and distributive justice. McCrudden (1986), p. 239. See also: Fullinwider (1980), pp. 18 and 19. Suggested further reading on the social utility argument: Fullinwider (1980), pp. 68–92.

  446. 446.

    McCrudden (1986), p. 239. Preferential treatment was discussed in Sect. 6.2.4.2 on strong positive action measures.

  447. 447.

    Final report Bossuyt (17 June 2002), para. 22.

  448. 448.

    See Sect. 6.4.2 on the enhancement of culture through the promotion of diversity.

  449. 449.

    See Sect. 6.4.1 on the remedying of discrimination through compensation.

  450. 450.

    See Sect. 6.4.4 on the pedagogical aim of generating role models.

  451. 451.

    McCrudden (1986), p. 239.

  452. 452.

    Gerapetritis (2016), p. 71.

  453. 453.

    Id. at p. 71.

  454. 454.

    Id. at p. 42.

  455. 455.

    See, for example: US Supreme Court, Brown v. Board of Education (1954), p. 94. Gerapetritis (2016), p. 222.

  456. 456.

    Gerapetritis (2016), p. 71.

  457. 457.

    Gerapetritis (2016), p. 71. Sowell (2004), pp. 177 and 178.

  458. 458.

    Gerapetritis (2016), pp. 42 and 250.

  459. 459.

    McCrudden (1986), p. 239.

  460. 460.

    Gerapetritis (2016), pp. 79 and 81.

  461. 461.

    Gerapetritis (2016), p. 79. O’Cinneide (2012), p. 4. Fredman (2002), pp. 156 and 157.

  462. 462.

    O’Cinneide (2012), p. 4.

  463. 463.

    Gerapetritis (2016), p. 79.

  464. 464.

    Section 6.4.3 focused on the societal aim.

  465. 465.

    In the USA, the role model rationale is mainly considered as part of the diversity approach understood as allowing broader representation. See, for example: US Supreme Court, Grutter v. Bollinger (2003), pp. 332 and 333. However, the US Supreme Court has not always accepted it. For example, it explicitly rejected the role model rationale in Wygant v. Jackson Board of Education (1986, p. 268), after the District Court and the Court of Appeals had declared the racial preferences in layoff provisions permissible as they aimed at remedying societal discrimination through the provision of role models for minority pupils. Gerapetritis (2016), pp. 42, 79 and 80.

  466. 466.

    Section 6.4.2 analysed the cultural aim.

  467. 467.

    Gerapetritis (2016), p. 80.

  468. 468.

    Gerapetritis (2016), pp. 42, 81, 86 and 250. The societal aim (Sect. 6.4.3) and the pedagogical aim (Sect. 6.4.4) are also auxiliary purposes of positive action.

  469. 469.

    ENAR (2007b), p. 20.

  470. 470.

    The cultural aim was discussed in Sect. 6.4.2.

  471. 471.

    European Commission (2007), p. 10. See also: ENAR and UKREN (2009), p. 5.

  472. 472.

    Gerapetritis (2016), pp. 82 and 83.

  473. 473.

    McCrudden (1986), p. 239. See also: Final report Bossuyt (17 June 2002), para. 28.

  474. 474.

    McCrudden (1986), p. 239. See also: Fullinwider (1980), pp. 68 and 69.

  475. 475.

    This is not surprising, considering that the EU started out as a European Economic Community. Fredman (2002), pp. 188, 189 and 193.

  476. 476.

    Fredman (2002), p. 189.

  477. 477.

    See Sect. 6.3.2 on awareness raising and active participation of all stakeholders as the second premise of positive action.

  478. 478.

    This argument relates to strict quotas, which were mentioned in Sect. 6.2.4.2 on the strong types of positive action involving preferential treatment. CEDAW Committee, General Recommendation No. 25 (2004), para. 23.

  479. 479.

    CEDAW Committee, General Recommendation No. 25 (2004), para. 23. Final report Bossuyt (17 June 2002), paras. 25 and 78.

  480. 480.

    Final report Bossuyt (17 June 2002), para. 78.

  481. 481.

    The CJEU’s case law will be analysed in Chap. 8 (Sect. 8.2.2).

  482. 482.

    For an overview of soft measures not providing preferential treatment, see Sect. 6.2.3.

  483. 483.

    Gerapetritis (2016), p. 56. ENAR (2008), p. 3.

  484. 484.

    This is called the quota trap. Interights (2011), p. 89.

  485. 485.

    Final report Bossuyt (17 June 2002), para. 78. McCrudden (1986), p. 241.

  486. 486.

    The minority candidate directly competes with non-minority members in such a system and they are also considered more valuable overall rather than solely on the basis of their protected characteristic. McCrudden (1986), p. 241.

  487. 487.

    Gerapetritis (2016, p. 55) defines stigma, which usually follows stereotyping, as “social infamy, disgrace, or reproach attributed to people or groups either because of idiosyncratic characteristics they are presumed to carry or because of externalities associated with them”.

  488. 488.

    Gerapetritis (2016), pp. 56, 57 and 253.

  489. 489.

    US Supreme Court, Brown v. Board of Education (1954), p. 494.

  490. 490.

    Roma Education Fund (2009), p. 26. McCrudden (1986), p. 241.

  491. 491.

    O’Cinneide (2012), p. 14. See, for example: Gardner (1998), pp. 167–187. Gardner (1989), pp. 1–22.

  492. 492.

    Section 6.4.4 expanded on the pedagogical aim of positive action.

  493. 493.

    Gerapetritis (2016), p. 77. European Commission (2009), p. 42.

  494. 494.

    Smis et al. (2011), p. 528.

  495. 495.

    Gerapetritis (2016), p. 63. Bell (2007a), p. 26.

  496. 496.

    See Sect. 6.4.4 on the pedagogical aim and its focus on generating role models.

  497. 497.

    Gerapetritis (2016), p. 63. Lynch (2007), p. 17. Szyszczak (2006). Fredman (2002), p. 152. Final report Bossuyt (17 June 2002), para. 15. McCrudden (1986), pp. 238 and 240. Fullinwider (1980), p. 91.

  498. 498.

    Gerapetritis (2016), p. 48.

  499. 499.

    Id. at p. 46.

  500. 500.

    The availability of ethnic data was cited as the fourth premise of positive action in Sect. 6.3.4.

  501. 501.

    Final report Bossuyt (17 June 2002), para. 15.

  502. 502.

    This was covered in Sect. 6.5.1.2 on the potential side effects positive action may have on (persons belonging to) the target group.

  503. 503.

    This is called stereotypical stigma. Gerapetritis (2016), p. 56. Equinet (2014), p. 56.

  504. 504.

    Gerapetritis (2016), pp. 238, 239 and 253. O’Cinneide (2012), pp. 1, 7 and 13. Lynch (2007), p. 17. Szyszczak (2006). McCrudden (1986), p. 240.

  505. 505.

    European Commission (2009), pp. 42, 63 and 65.

  506. 506.

    The study cites Hungary and Slovakia. European Commission (2009), p. 41. Chapters 9–11 will focus on positive action for Roma.

  507. 507.

    Gerapetritis (2016), p. 60. Equinet (2014), p. 47. European Commission (2009), pp. 41 and 63–65. ENAR (2007b), p. 14.

  508. 508.

    Equinet (2014), p. 47. ENAR and UKREN (2009), p. 7. ENAR (2007b), p. 22.

  509. 509.

    This was addressed in Sect. 6.3.2 on the need for awareness-raising among and active participation of all relevant stakeholders in positive action. European Commission (2009), pp. 41 and 43.

  510. 510.

    See, for example: ACFC, First Opinion on Azerbaijan (22 May 2003), para. 28. ACFC, First Opinion on Ukraine (1 March 2002), para. 27.

  511. 511.

    See, for example: ECRI, Third Report on Slovenia (30 June 2006), para. 34. ECRI, Third Report on Spain (24 June 2005), para. 107. ECRI, Third Report on Poland (17 December 2004), para. 119.

  512. 512.

    This will be discussed further in Chap. 9 (Sects. 9.2.1 and 9.2.2) when addressing why positive action for Roma fails to reach its full potential in Europe.

  513. 513.

    European Commission (2009), pp. 42, 63 and 65.

  514. 514.

    ECRI, Third Report on Poland (17 December 2004), para. 119.

  515. 515.

    See Sect. 6.1.1 on the varying understandings of positive action, Sect. 6.4.2 on the cultural aim of positive action, and Sect. 6.4.3 on the societal aim.

  516. 516.

    European Commission (2009), pp. 42, 43, 53, 54 and 65. Political will and funding were identified as the third premise of positive action in Sect. 6.3.3.

  517. 517.

    See, for example: ECRI, Third Report on Poland (17 December 2004), para. 119. For more on this, see Chap. 9 (Sect. 9.2.5) where inadequate and short-term funding are cited as limiting positive action from achieving long-term effects.

  518. 518.

    Corsi et al. (2010), p. 135. European Commission (2009), p. 42. It was explained in Sect. 6.1.2.3 that the temporary nature of positive action does not necessarily mean that special measures have to be short-term.

  519. 519.

    O’Cinneide (2012), pp. 7 and 8. See also: Gerapetritis (2016), p. 244. McCrudden (1986), p. 241. Section 6.5.2 dealt with the perceptions by members of non-targeted groups.

  520. 520.

    Roma Education Fund (2009), p. 26.

  521. 521.

    In Nigeria, such favoritism through preferential treatment resulted into a civil war. Gerapetritis (2016), p. 79. O’Cinneide (2012), pp. 7 and 8.

  522. 522.

    Gerapetritis (2016), pp. 4, 62, 63 and 253. Lynch (2007), pp. 17 and 18. Bell (2007a), p. 26. Collins (2003), p. 37. Fredman (2002), pp. 153, 191 and 193. McCrudden (1986), pp. 240 and 241. As indicated in Sect. 6.2.3.1, the same argument has been used regarding the first soft measure (the eradication of discrimination). See Sect. 6.2.4 for an overview of the strong measures that provide preferential treatment for members of the target group.

  523. 523.

    Fredman (2002), p. 160.

  524. 524.

    Special Rapporteur Bossuyt clearly states that positive action programmes may not be considered as a substitute for anti-discrimination laws and anti-poverty programmes. See: Final report Bossuyt (17 June 2002), para. 39. European Commission (2009), p. 43.

  525. 525.

    Gerapetritis (2016), pp. 62 and 63.

  526. 526.

    Gerapetritis (2016), p. 62. Strict quota were presented in Sect. 6.2.4 on strong measures that involve preferential treatment. See also Sect. 6.4.2 on the cultural aim positive action may pursue.

  527. 527.

    Gerapetritis (2016), pp. 4, 63 and 253. Soft measures were presented in Sect. 6.2.3.

  528. 528.

    O’Cinneide (2012), pp. 1, 7 and 8. Bell (2007a), p. 26. For more on this, see the analysis of the international and the European framework on positive action in Chaps. 7 and 8 respectively.

  529. 529.

    O’Cinneide (2012), pp. 13 and 14. McCrudden (1986), p. 241.

  530. 530.

    See Sect. 6.4.2 on the cultural aim and Sect. 6.3.4 on the need for ethnically disaggregated data. See, more generally, Chap. 4 on ethnic data collection.

  531. 531.

    Gerapetritis (2016), p. 240. European Commission (2009), pp. 42, 43 and 65. See Sect. 6.3.4 on the need for ethnically disaggregated data.

  532. 532.

    The availability of ethnically disaggregated data was cited as the fourth premise of positive action in Sect. 6.3.4.

  533. 533.

    See Chap. 3 on the key elements, rules and principles of ethnic data collection, Chap. 4 on the benefits, risks, data sources and methods of ethnic data collection, and Chap. 5 on challenges to collecting ethnic data on Roma in Europe.

  534. 534.

    Part I of the book focused on ethnic data collection (Chaps. 3–5).

  535. 535.

    See Chaps. 3–5 on ethnic data collection.

  536. 536.

    See Chap. 7 on the international framework on positive action and Chap. 8 on the European framework on positive action.

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            Van Caeneghem, J. (2019). Positive Action and the Link with Ethnic Data. In: Legal Aspects of Ethnic Data Collection and Positive Action. Springer, Cham. https://doi.org/10.1007/978-3-030-23668-7_6

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