International perspectives on positive action measures - European ...

<strong>International</strong> <strong>perspectives</strong> on positive action measures
1.
1.1. Overview of the study
In recent years there has been a significant
expansion of legislation by the European
Commission in the area of equal
treatment. The year 2000 saw the adoption
of two Directives prohibiting discrimination
on the grounds of race and
ethnic origin ( 1 ), and sexual orientation,
religion or belief, disability and age ( 2 ).
These were followed by amendments
to the long-standing Directive (76/207/
EEC) on equal treatment for men and
women, the adoption of a ‘goods and
services’ Gender Non-discrimination
Directive in 2004 ( 3 ) and, more recently,
the adoption of the ‘recast’ Gender
Directive ( 4 ). As a consequence of this
wealth of legislation, the EC is now the
dominant force setting the tone and
content of national non-discrimination
and equality laws across the 27 Member
States. In addition, specific work has
been undertaken regarding positive action
for Roma in the field of education
by the European Network of Independent
Experts on Fundamental Rights ( 5 ).
1 Council Directive 2000/43/EC.
2 Council Directive 2000/78/EC.
3 Council Directive 2004/113/EC.
4 Council Directive 2006/54/EC.
5 European Network of Independent Experts
on Fundamental Rights (2005) Thematic
Comment No 3, The protection of minorities
in the European Union, at: http://ec.europa.
eu/justice_home/cfr_cdf/doc/thematic_comments_2005_en.pdf
10
Introduction and methodological approach
In this chapter we set the context and objectives of the study, discuss the design of the study
and the development and application of the methods of data collection to the different
phases of the study. We present an overview of the approaches to the literature review and
development of the working definition of positive action. This chapter explains the procedure
for developing the online survey and provides an overview of different methods utilised
in the in-depth study and dissemination of the study.
In spite of this extension of EC law, and
the significant expansion in the personal
and material scope which has occurred,
enforcement of the legislation at
national level is still to occur primarily
through the action of individual victims
who decide to challenge (allegedly) discriminatory
behaviour before courts.
This enforcement mechanism was also
provided for in the earliest Gender Nondiscrimination
Directives which date
back to the mid-1970s, and it has been
the subject of criticism over the years
(Blom et al., 1995). This is because victims
face a range of obstacles in bringing
discrimination cases, amongst which financial
and emotional costs are some of
the most significant (Bell, 2005).
Positive action, including the notion
of positive duties to promote equality
through, for example, contract compliance
programmes, is one means of
addressing the limitations and restrictions
inherent in an individual enforcement
model based on litigation.
Nevertheless, while the use of positive
action measures is recommended as a
method of realising equality of opportunity,
there is a dearth of empirical
literature on the use of positive action
across Europe.
This report is the result of a study to
help the European Commission to
better understand the role that positive
action measures can play in practice
in preventing or remedying discrimination,
building on the knowledge of
the existing legal framework set out
in other studies (De Vos, 2007). It
will help the Commission gain a better
insight into what kind of practical
positive action measures are already
being taken in the European Union
(and in the EFTA-EEA countries), as
well as the possible costs and benefits
of the positive action measures. The
study also seeks to examine how legal
frameworks, policies and practices of
positive action in the European Union
compare with Canada, the United
States and South Africa.
The Centre for Inclusion and Diversity
at the University of Bradford was
commissioned to lead this 15-month
project in collaboration with the European
Roma Rights Centre and the
Ludwig Boltzmann Institute of Human
Rights. The research team sought
to undertake four tasks during the
course of the study:
1. develop a working definition of
positive action;
2. conduct an online survey in the
27 EU Member States and the
EFTA-EEA countries;
3. produce in-depth case studies of
eight EU countries, plus Canada,
the United States and South Africa;
4. disseminate the findings of the
research through a seminar and
publications.