Volume 48 (2011)

Volume 48 (2011) / Issue 5

Mark Bell, Lisa Waddington, 'Exploring the boundaries of positive action under EU law: A search for conceptual clarity' (2011) 48 Common Market Law Review, Issue 5, pp. 1503–1526

Keywords:
positive action, equality, discrimination, reasonable accommodation, mainstreaming

Abstract

Positive action is a central element of EU anti-discrimination legislation. It allows measures to be taken to further the realization of full equality in practice by redressing past or present disadvantages experienced by groups such as women, ethnic minorities, etc. With the expansion of EU anti-discrimination law, additional methods of promoting equality have been introduced, such as reasonable accommodation duties, mainstreaming and equality data collection. This has given rise to some terminological and conceptual confusion as to the distinction between these measures and positive action, including within court judgments. This article argues that positive action can be separated from other techniques for promoting equality and that maintaining this distinction is important. In particular, there are a specific set of requirements for positive action measures to be lawful, including respect for the principle of proportionality. Applying these requirements in an over-inclusive manner could have the effect of imposing unnecessary restrictions, as well as generating confusion for organizations and individuals with regard to what positive action entails.

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ISSN: 0165-0750
ID: COLA2011059