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EQUALITY LAW AND EXPERIMENTATION: THE POSITIVE ACTION CHALLENGE

Published online by Cambridge University Press:  16 December 2009

Lizzie Barmes
Lizzie Barmes
Affiliation:
Queen Mary University of London.
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The Cambridge Law Journal , Volume 68 , Issue 3 , November 2009 , pp. 623 - 654
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Copyright © Cambridge Law Journal and Contributors 2009

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References

1 Prominent examples are the Department of Communities and Local Government (“DCLG”), Discrimination Law Review, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain (2007) (“the 2007 DLR Consultation Paper”), p. 64 at para. 4.5 and the Government Equalities Office (“GEO”), The Equality Bill – Government Response to the Consultation (TSO, July 2008) (“The 2008 Equality Bill White Paper”), p. 61 at para. 5.2.

2 C. McCrudden, “Re-thinking Positive Action” (1986) 15 I.L.J. 219, 223.

3 Ibid., at p. 222 where McCrudden's excluded various activities from the category of positive action because increasing the participation of women or minorities was not their exclusive or primary concern (e.g. employment policies accommodating racial, religious and gender differences).

4 Ibid., at pp. 223 and 229.

5 See, GEO, Equality Bill: Making it work, Policy proposals for specific duties, A consultation, for an overview of the current law and future plans, especially at pp. 25–26 on coverage. The proposal for a general public sector equality duty is in Part II, Chapter 1 of the Equality Bill.

6 The Bill was re-printed following Commons amendments in July 2009.

7 A useful overview is in T. Phillips, R. Kerslake and J. Mayhew Jonas, Fairness and Freedom: The Final Report of the Equalities Review (2007) (“the Equalities Review”). See especially pp. 12–13, 19–28, chs. 2 and 3 and Annex B.

8 Ibid., at p. 146.

9 Cabinet Office, Getting on, getting ahead, A discussion paper: analysing the trends and drivers of social mobility (Nov 2008) and HM Government (“HMG”), New opportunities, Fair chances for the future (TSO, Jan. 2009).

10 The SDA 1975 covers sex and also gender reassignment, pregnancy, maternity leave and marital or civil partner status. The Equal Pay Act (“EPA”) 1970 concerns only sex. It also has a distinctive design although direct and indirect discrimination play a critical role.

11 The RRA 1976 covers race and also colour, ethnic origins, nationality and national origins.

12 Directive 2000/43/EC of 29 June 2000 (“the 2000 Race Directive”) on race and ethnic origins and Directive 2000/78/EC of 27 November 2000 (“the 2000 Employment Directive”) on age, disability, religion or belief and sexual orientation.

13 The Employment Equality (Religion or Belief) Regulations (“the 2003 Religion or Belief Regs.”). and the Employment Equality (Sexual Orientation) Regs. 2003 (“the 2003 Sexual Orientation Regs.”) were made to implement the 2000 Employment Directive. The coverage was extended to goods and services in Part II and s. 81 of the Equality Act 2006 and in the Equality Act (Sexual Orientation) Regulations 2007 (“the 2007 Sexual Orientation Regs.”).

14 Sometimes protection extends further, for example, to those associated with a person with a protected identity See note 34 below and cls. 13 and 24 (25 in the July print) of the Equality Bill.

15 Defined in the Equality Act 2006, ss. 44 and 77 (the latter amending Reg. 2 of the 2003 Religion or Belief Regs.).

16 Defined in the Equality Act 2006, s. 35 and Reg. 2 of the 2003 Sexual Orientation Regs.

17 Subject, conceivably, to the impact of equality norms beyond the anti-discrimination statutes (e.g. through the Human Rights Act 1998).

18 There are numerous sections (e.g. on “genuine occupational requirements”) mandating differential treatment that may not easily be characterised as positive action, in fact sometimes reinforcing unjustifiable stereotypes. See the 2007 DLR Consultation Paper, Annex A and, pp. 44–49 at paras. 1.63–1.85, the 2008 Equality Bill White Paper, ch. 8 and the April 2009 Equality Bill, Scheds. 3, 5–7, 9, 11–12, 16, 18 and 23–24.

19 The most important counter-example (beyond the scope of this article) is the Sex Discrimination (Election of Candidates) Act 2002 (and now see the Equality Bill, cls. 99 and 100- cls. 101 and 102 in the July print).

20 SDA 1975, ss. 2(2) and EPA 1970, ss. 6(1)(b). Specific statutory rights in relation to pregnancy and maternity arguably provide for mandatory positive action.

21 See SDA 1975, ss. 47 and 48, RRA 1976, ss. 37 and 38, the 2003 Religion or Belief Regs., Reg. 25 and the 2003 Sexual Orientation Regs., Reg. 26.

22 Equality Act 2006, s. 61 and the 2007 Sexual Orientation Regs., Reg. 13.

23 See the decision in Hughes v. London Borough of Hackney (1986) E.O.R. 27 that s. 35 does not cover access to job opportunities. But the 2007 DLR Consultation Paper, p. 69 at para. 4.23, asserted that it “applies to all areas in which discrimination in prohibited in the RRA.”

24 See London Borough of Lambeth v. Commission for Racial Equality [1990] I.C.R. 768. Although about genuine occupational requirements, [16]–[20] concerned the general purpose of the legislation. The narrow approach to interpretation was also exemplified in Hughes above.

25 See C. McCrudden, note 2 above, at pp. 230–232 arguing in 1986 for clarification “that if an employer adopts actions to further [the neutral but inclusionary criteria] approach to positive action he or she is acting lawfully”.

26 See the Sex Discrimination (Amendment of Legislation) Regulations 2008, implementing EU Directive 2004/113/EC on equal treatment between men and women in the access to and the supply of goods and services, which, amongst other things and subject to various exceptions, updated the definition of indirect discrimination outside the employment sphere.

27 Equality Bill, cl. 18 (cl. 19 in the July print). Bizarrely, however, the very recent prohibition outside the employment sphere of indirect discrimination on grounds of religion or belief, or of sexual orientation, is differently worded again, this time to require reasonable justification by reference to matters other than, respectively, the claimant's religion or belief, or their sexual orientation (Equality Act 2006, s. 45(3)(d) and 2007 Sexual Orientation Regs., Reg. 3(3)(d)).

28 See Barmes, L., “Promoting Diversity and the Definition of Direct Discrimination” (2003) 32 I.L.J. 200, 210Google Scholar. See also now the developing law on justifying “prima facie” age discrimination, discussed further below.

29 See Proceedings for A Review of Legality by Georg Badeck Case C-158/97 [2001] 2 C.M.L.R. 79, 112–113 at [31]–[32] and, in particular, Abrahamsson v. Fogelqvist Case C-407/98 [2002] I.C.R. 932, 952 at [47]–[49].

30 See M. De Vos, Beyond Formal Equality, Positive Action Under Directives 2000/43/EC and 2000/78/EC (European Commission, 2007), p. 15.

31 See, for example, D. Schiek, L. Waddington and M. Bell (eds.), Cases, Materials and Text on National, Supranational and International Non-Discrimination Law (Oxford 2007), p. 460.

32 See, adverting to the controversy, C. Barnard, EC Employment Law, 3rd ed. (Oxford 2006), pp. 332 and 402, and A. McColgan, Discrimination Law, Text, Cases and Materials, 2nd ed. (Oxford 2005), p. 142.

33 Those associated with a disabled person have rights not to be directly discriminated against, nor to be discriminatorily harassed, following Coleman v. Attridge Law Case C-303/06 [2008] I.C.R. 1128. Moreover a non-disabled person may be eligible to bring a claim of unlawful victimisation.

34 Ibid.

35 Although the Equality Bill, cl. 13(3) seems to propose reversal of that particular effect.

36 [2004] UKHL 32, [2004] I.C.R. 954, at [57].

37 See Article 6(1)(a) especially.

38 See Mangold v. Helm Case C-144./04 [2006] All E.R. (EC) 383, Palacios de la Villa v. Cortefiel Servicios Case C-411/05 [2008] 1 C.M.L.R. 385 and R. (on the application of Incorporated Trustees of the National Council on Ageing (Age Concern England)) v. Secretary of State for Business, Enterprise and Regulatory Reform Case C-388/07 [2009] All E.R. (D) 51.

39 See, for example, Bloxham v. Freshfields Bruckhaus Deringer Case Number 2205086/2006, unreported.

40 See R. Savill, “Not wanted: white male police”, The Daily Telegraph, 29 November 2005; O. Bowcott and V. Dodd, “Police halt jobs diversity scheme after discrimination claims”, The Guardian, 8 March 2006; R. Savill, “Police pay-out for rejected white male applicant”, The Daily Telegraph, 15 March 2006; “White man wins payout over police job race bias”, The Times, 15 March 2006 and “CRE lets police off hook over positive discrimination”, Personnel Today, 27 June 2006.

41 See quotation and generally on the website of the Avon and Somerset Constabulary (http://www.avonandsomerset.police.uk) “Force receives expert advice on Positive Action” (visited 17 March 2006).

42 See also reports of Gloucester police facing analogous difficulties in respect of a positive action scheme: M. Millar, “Gloucester police could face legal claims after discrimination payout”, Personnel Today, 21 March 2006; “Gloucester police force vows not to break race law again”, Personnel Today, 5 July 2006; BBC News, “Force admits rejecting white men” and “Force may face ‘flood’ of claims”, 22 September 2006; J. Slack, “Police force admits discriminating against white recruits”, Daily Mail, 22 September 2006; R. Savill, “Police admit rejecting job applicant for being white”, Daily Telegraph, 22 September 2006.

43 Fredman, S., “Changing the Norm: Positive Duties in Equal Treatment Legislation” (2005) 12 M.J.E.L. 369, 370–373Google Scholar and generally.

44 See for a general discussion (notably not confined to equality rights), S. Fredman, Human Rights Transformed, Positive Rights and Positive Duties (OUP, 2008).

45 See, for example, C. O'Cinneide, Taking equal opportunities seriously, the extension of positive duties to promote equality (EDF, Dec. 2003), pp. 44, 71 and 75 and generally. Note also the discussion of EU developments in S. Fredman, note 43 above, at 389–397 averting to the dichotomy between the EU pursuit of proactive models and some of its existing anti-discrimination rights, while welcoming the European Commission's dual strategy pursuing gender mainstreaming and improving the legislative base. B. Hepple, M. Coussey and T. Choudhury, Equality: A New Framework, Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (Hart, 2000) (“the Hepple Report”), however, argued at p. 38, para. 2.49 that extension of the scope for lawful positive action is “essential if proper effect is to be given to the Government's proposals for a positive duty on public authorities to promote equal opportunities”.

46 See RRA 1976, s. 71 (inserted by the Race Relations (Amendment) Act 2000), DDA 1995, s. 49A (inserted by the DDA 2005) and SDA 1975, s. 76A (inserted by s. 84 of the Equality Act 2006).

47 The Equalities Review, p. 102.

48 S. Rutherford and S. Ollerearnshaw, The Business of Diversity – how organisations in the public and private sectors are integrating equality and diversity to enhance business performance (Andover 2002) and European Commission, The Business Case for Diversity: Good Practices in the Workplace (2005).

49 See the Centre for Strategy and Evaluation Services, Methods and Indicators to Measure the Cost-Effectiveness of Diversity Policies in Enterprises (2003), p. 65, in which the idea of being active was put at the centre.

50 See Industrial Society (now the Work Foundation), Managing Best Practice No. 78 (December 2000), 3 and, M. Janssens and C. Steyaert, Theories of Diversity Within Organisation Studies: Debates and Future Trajectories (Fondazione Eni Enrico Mattei, 2003), p. 1 for accounts of diversity thinking.

51 See, for example: R. Kandola and J. Fullerton, Diversity in Action, Managing the Mosaic (London, CIPD, 2nd ed, 1998); S. Rutherford and S. Ollerearnshaw, note 48 above and G. Mulholland, M. Ozbilgin and D. Worman, Managing Diversity, Linking the Theory and Practice to Business Performance (CIPD, 2005).

52 See, for example, Diversity in the City: Initiatives in Investment Banks in the UK (Nabarro, 2003), pp. 6–7 and G. Mulholland, M. Ozbilgin and D. Worman, ibid. at pp. 4 and 19.

53 For a fuller discussion of the issues raised by the emphasis in diversity thinking on individualism, see L. Barmes with S. Ashtiany, “The Diversity Approach to Achieving Equality: Potential and Pitfalls” (2003) 32 I.L.J. 274, 277, 279 and 290–293.

54 At p. 15.

55 See, for example, the Hepple Report, pp. 56–57 at paras. 3.3 and 3.4 and S. Fredman, note 43 above, p. 386.

56 See further discussion of this point in L. Barmes with S. Ashtiany, note 53 above, pp. 278–279 and 295–296 and the underlying empirical research, Diversity in the City, note 52 above, especially at pp. 6–7 and 23–31.

57 Diversity thinking and its effects in the US should not be conflated with UK or EU experience. See R. Singh Dhami, J. Squires and T. Modood, Developing positive action policies: learning from the experiences of Europe and North America (DWP, Research Report No. 406, 2006), pp. 53–80 and pp. 99–116 on the US affirmative action debate and where diversity thinking fits in and L.B. Edelman, S. Riggs Fuller and I. Mara-Drita, “Diversity Rhetoric and the Managerialisation of Law” (2001) 106 American Journal of Sociology 1589.

58 See also European Commission, note 48 above, pp. 19 and 22.

59 Cabinet Office, Delivering a Diverse Civil Service, A 10-Point Plan “The 10 Point Plan” (2005), p. 1.

60 Ibid., at p. 4.

61 Ibid., at 1.

62 Cabinet Office, Promoting Equality, Valuing Diversity, A Strategy for the Civil Service (July 2008). See the emphasis on the benefits of diversity; numerical target-setting (p. 25); repetition of the relevance of diversity for everyone (e.g. 5) and of the need for profound cultural change (pp. 11–14). Note also the reporting at p. 4 of progress by 2007 against the 2005 gender targets.

63 Ibid., at 5.

64 Ibid., at 14.

65 Ibid., at 23. See further examples at pp. 19 and 27. Positive action measures in recruitment (and retention) were also recommended in the Good Practice Guide, Diversity Recruitment in the Civil Service (Civil Service, 2007), for example, pp. 4–5 on accountability for recruitment and pp. 7–10 on search agents.

66 The Equalities Review, p. 120.

67 The 2007 DLR Consultation Paper, ch. 4.

68 GEO, Framework for a Fairer Future – The Equality Bill (TSO, June 2008), pp. 26–28 and GEO, note 1 above (TSO, July 2008), ch. 5.

69 See e.g. J. Hills, T. Sefton and K. Steward, Towards a More Equal Society? Poverty, Inequality and Policy Since 1997 (Bristol 2009), assessing experience since 1997.

70 See R. Dworkin, Sovereign Virtue, The Theory and Practice of Equality (Harvard 2000), e.g., pp. 71–73.

71 B. Kersley, C. Alpin, J. Forth, A. Bryson, H. Bewley, G. Dix, S. Oxenbridge, Inside the Workplace: Findings from the 2004 Workplace Employment Relations Survey (London 2006), p. 237.

72 Ibid., at 244.

73 Ibid.

74 The 2008 Equality White Paper, pp. 61–65 at paras. 5.5–5.18.

75 Ibid., p. 61, at para. 5.3.

76 See Art. 141(4), which was inserted into the 1997 Treaty Establishing the European Community by the Treaty of Amsterdam (having had a precursor in Art. 6(3) of the Agreement on Social Policy, from which the UK opted out). See also Arts. 5 and 7, respectively, of the 2000 Race and Employment Directives; Art. 6 of Directive 2004/113/EC on gender equality in the provision of goods and services; Art. 3 of the consolidating Equal Treatment Directive 2006/54/EC (in the same terms as the equivalent provision in the amended Equal Treatment Directive 2002/73/EC, which replaced Art. 2(4) of the Equal Treatment Directive 1976/207/EC).

77 Marschall v. Land Nordrhein-Westfalen Case C-409/95 [2001] I.C.R. 45 is the leading case, consistently followed since.

78 Contrast Proceedings for A Review of Legality by Georg Badeck Case C-158/97 [2001] 2 C.M.L.R. 79, 117, at [55] and Lommers v. Minister van Landbouw, Natuurbeheer en Visserij Case C-476/99 [2004] 2 C.M.L.R. 1141, 1170, at [33] with EFTA Surveillance Authority v. Norway Case E-1/02 [2003] 1 C.M.L.R. 725, 738–739, at [50].

79 See Proceedings for A Review of Legality by Georg Badeck Case C-158/97 [2001] 2 C.M.L.R. 79, 117–118, at [56]–[63] and Lommers v. Minister van Landbouw, Natuurbeheer en Visserij Case C-476/99 [2004] 2 C.M.L.R. 1141. But note also Griesmar v. Ministre de l'Economie, Des Finances et de l'Industrie Case C-366/99 [2003] 3 C.M.L.R. 95, finding unlawful a French scheme granting pension credits to French female civil servants with children.

80 See Griesmar, ibid.

81 Case C-319/03 [2005] 1 C.M.L.R. 73, especially at 84–85, [AG48]–[AG51].

82 Ibid., at 85, at [AG51].

83 Contrast Kalanke v. Freie Hansestadt Bremen Case C-450/93 [1996] I.C.R. 314 and Marschall v. Land Nordrhein-Westfalen Case C-409/95 [2001] I.C.R. 45. A very similar scheme to that found unlawful in Kalanke was approved in Marschall. Advocate-General Jacobs adverted to the outcry after Kalanke in Marschall, especially at [49] and [58]–[60].

84 See, e.g., V. Spidla's speech in November 2005, “Diversity and successful workplace practices”, at the conference launching the European Commission research, note 48 above. See also the earlier report, Centre for Strategy and Evaluation Services, note 49 above, suggesting further research.

85 e.g. the 2007 European Commission's Annual Anti-Discrimination Conference was on: “Equal Opportunities for All: What Role for Positive Action”. See also commissioned research, De Vos, note 30 above, and U. Archibong et al., Positive Action Measures in the European Union, Canada, United States and South Africa, Volumes 1, 2 and 3 (European Commission and University of Bradford, 2009).

86 See A.G. Saggio at Proceedings for A Review of Legality by Georg Badeck Case C-158/97 [2001] 2 C.M.L.R. 79, 97, “[T]he requirement to give priority to women must not mean that, in assessing candidates who are not the subject of positive action, due consideration is not accorded to particular personal circumstances which, although they have nothing to do with the assessment of the candidates' professional profiles, may indicate social situations that are just as difficult as those normally faced by women.”

87 Marschall v. Land Nordrhein-Westfalen Case C-409/95 [2001] I.C.R. 45, 64, at [31]–[35] and Proceedings for A Review of Legality by Georg Badeck Case C-158/97 [2001] 2 C.M.L.R. 79, 111, at [23] and [38].

88 Lommers v. Minister van Landbouw, Natuurbeheer en Visserij Case C-476/99 [2004] 2 C.M.L.R. 1141, 1171, at [38] and Briheche v. Ministre de l'Intérieur, Case C-319/03 [2005] 1 C.M.L.R. 73, 89, at [24].

89 Ibid., at pp. 80–83, at [AG30]–[AG41] for AG Maduro's account of the EU position in the gender field, and specifically at [AG37] on the variable proportionality requirement.

90 The work of the Equalities Review, with its associated research, is an important beginning. It is now to be augmented by the work of the National Equality Panel (terms of reference at http://www.equalities.gov.uk/docs/NEPTORs.doc – last accessed 27 March 2009). Specifically on positive action, see U. Archibong et al., note 85 above and R. Singh Dhami, J. Squires and T. Modood, note 57 above.

91 The Equalities Review, p. 121.

92 HMG, note 9 above, p. 18, at para. 1.31.

93 Ibid., at p. 21, at para. 1.58.

94 Ibid., at p. 22, at para. 1.58. See now the Equality Bill, cl. 1.

95 See note 90 above.

96 note 62 above, pp. 13, 16, 18, 21–22.

97 See for some further indicative examples, DCLG, Improving Opportunity, Strengthening Society, A third progress report on the Government's strategy for race equality and community cohesion (Feb. 2009), Department for Children, Schools and Families, Breaking the Link between disadvantage and low attainment, Everyone's Business (March 2009).

98 See particularly S. Sturm, “Second Generation Employment Discrimination: A Structural Approach” (2001) 101 Colum.L.Rev. 458 (“Second Generation”), and also “Race, Gender, and the Law in the Twenty-First Century Workplace: Some Preliminary Observations” (1997) 1 U.Pa.J.Lab. and Emp.L. 639 (“Twenty-First Century”) and “Law, Norms and Complex Discrimination” (“Complex Discrimination”) in C. Estlund and B. Bercusson (eds.), Regulating Labour in the Wake of Globalisation, New Challenges, New Institutions (Cambridge 2008). Sturm's work also notably adds to the empirical evidence (see note 90 above) about positive action measures by organisations (and about public and private intermediaries supporting organisations in pursuing equality). See, additional analysis of a sectoral initiative in “Gender Equity Regimes and the Architecture of Learning” (“The Architecture of Learning”) in G. de Búrca and J. Scott (eds.), Law and New Governance in the EU and the US (Oxford 2006) and in “The Architecture of Inclusion: Advancing Workplace Equity in Higher Education” Columbia Law School, Public Law and Legal Theory Working Paper Group, 06-114 (“The Architecture of Inclusion”).

99 Ibid., Second Generation, at p. 468.

100 Ibid., at p. 475.

101 Ibid., at pp. 462–463, 479–490, 522–523, 537–542 and 553–564 for the focus on judges and courts. The tendency to sideline the legislature is striking throughout Sturm's articles discussed here.

102 S. Sturm, Twenty-First Century, at pp. 639, 645, 681–683 and 685–688, Second Generation, at pp. 462–463, 474 and 555–563 and Complex Discrimination generally.

103 S. Sturm, Twenty-First Century, at pp. 684–688, Second Generation, at pp. 522–536, 546–552 and 564–566 and The Architecture of Inclusion, at pp. 5–6, 42–57, 81–83 and 88–90.

104 See S. Sturm, The Architecture of Inclusion, at pp. 6, 8–9, 16–25, 68–79 and 83–88 (private entities that might operate this way are mentioned at pp. 86–87) and The Architecture of Learning, at pp. 337–346, 349–354 and 356–359.

105 See S. Sturm in Complex Discrimination at p. 142: “Given the EEOC's current inability to promulgate binding regulations and the legislature's enactment of predominantly open-ended statutes, development of legal equality norms for many scholars thus depends on judicial elaboration.”

106 See S. Sturm, Second Generation, at p. 556: “It also means taking seriously the limitations of new regulatory approaches in dealing with certain kinds of problems (such as deliberate racial exclusion or quid pro quo harassment), and thus grappling with the difficult question of whether and how rule-enforcement approaches can continue to operate without undermining the viability of more structural regulatory models.”

107 2008 Equality Bill White Paper, ch. 5.

108 Cls 152 and 153 in the April version and cls. 154–155 in the July version.

109 See further L. Barmes, “Navigating Multi-Layered Uncertainty: EU, Member State and Organizational Perspectives on Positive Action”, forthcoming in G. Healy, G. Kirton and M. Noon (eds.), Equality, Inequalities and Diversity – From Global to Local (2010).

110 See paras. 505 and 508 of the Explanatory Notes to the Equality Bill.

111 2008 Equality Bill White Paper, p. 60, para. 5.1.