Positive discrimination is sometimes used to help enforce gender equality in the working place. Basic questions to be answered before analyzing the concept of positive discrimination deal with the necessity of action. What does the gender situation look like in the working place? Is there actually a need for action, for positive discrimination?
Looking at employment statistics gives a direction in finding answers to such questions. Only 57.2% of the women aged 15-64 in the European Union were working 2006 while 71.6% of men were. The difference in unemployment was not so large with 9.0 % of women being unemployed compared to 7.6% of men in 2006. However, the share of part time workers in total employment shows significant differences. Of the working women 31.4 % worked only part time in 2007 while the male percentage was considerably lower with only 7.8 %. The pay gap between women’s and men’s earnings, another important factor to measure equality which indicates the difference in “average gross hourly earnings as a percentage of men’s average gross hourly earnings”, was at 15 % in 2006 in the EU. All these figures show that a gender gap exists in working life. The qualitative aspect of employment illustrates the inequality even more obviously. Women’s share among managers in enterprises and administrations in the European Union for example was only at 32.6 % in 2006 (all figures from the Commission of the European Communities 2008).
These statistics show clearly that gender equality is by far not reached. In order to strengthen equality within the working place positive discrimination measures are introduced in different forms and places according to the legal framework. Whether such measures are indeed helpful tools in enforcing gender equality will be the main topic of this paper. In order to be as precise as possible the discussion will concentrate on the situation in Europe. The basic ideas and arguments however should be universally valid. After introducing the concept of positive action an illustrating example from Norway concerning gender quotas on company boards will be presented. Thereafter the general arguments in favor and against positive discrimination will be discussed before concluding with the legal limits of the concept within the European Union.
2. Positive Discrimination
What is positive discrimination?
First of all, when discussing positive discrimination, the terminology needs to be clarified. Within this discussion several terms sometimes used as synonyms sometimes used with a different meaning can be found. The most common of these terms are positive discrimination, positive action and affirmative action. As this paper will concentrate on the situation in Europe, the terms positive action and positive discrimination will be used only. Positive action is a common European synonym of affirmative action whereas the usage of positive discrimination implies that the targets of the actions receive special favors (Bacchi C.L. 1996: X).
Positive action constitutes proactive programs redressing past and present discrimination of certain group members identified mostly by race and gender (Bacchi 1996: X). Sterba defines affirmative action, which is in this case a synonym for positive action, as “a policy of favoring qualified women and minority candidates over qualified men or non-minority candidates with the immediate goals of outreach remedying discrimination, or achieving diversity, and the ultimate goals of attaining a colorblind (racially just) and a gender-free (sexually just) society (in Burns and Schapper 2008: 373). Although the concept is used for several discrimination features, this paper will discuss positive action in the context of gender only.
Positive action can be applied in the private and the public sector. However, the latter one is more often addressed by legal regulations (Bacchi 1996: 16). We usually find two classifications of positive action: “soft options” that increase the possibility of promotion and recruitment for the underrepresented group, for example through training, and “hard or strong options” that target promotion and recruitment of the underrepresented gender, for example through quota requirements (Bacchi C.L. 1996: 16). This paper will concentrate on the latter form of positive action and refer to it as positive discrimination.
Example: Gender quotas on company boards in Norway
When looking at different positive discrimination measures in Europe, one regulation stands out: the legislation on representation of both sexes on company boards in Norway. The country has come up with a law forcing companies to constitute their boards in a way that both sexes are represented by at least 40%. This implies not only for state-owned companies but also for public limited companies listed on the Oslo Stock Exchange, in other words, companies in the private sector (Norwegian Government – Ministry of children, equality and social Inclusion 2005). As positive discrimination usually takes place in the public sector the Norwegian initiative is quite an astonishing regulation. Also the harsh enforcement is remarkable. If companies fail to fulfil the requirement of the 40% quota, they can actually be dissolved (Norwegian Government – Ministry of children, equality and social Inclusion 2005).
As for the reason for such a policy the Norwegian government argued that balanced representation is a question of democracy. Furthermore it stated that making use of all the resources in a country is necessary and that the Norwegian women are equally qualified as men. Ultimately, the government believed increased diversity in the board rooms to lead to higher successes of the companies (Norwegian Government – Ministry of children, equality and social Inclusion 2005). Critics of the quota claimed that the owners should decide upon the recruitment and not a quota. Furthermore they emphasized that attitudes cannot be changed by legal enforcement. Also, they pointed at the risk of not finding enough qualified women (Criscione 2008). However, another reason for the objection was the danger of losing power. The Director of Norway’s Professional Boards Forum, Elin Hurvenes, stated “The outrage was not only about opening boardroom doors to women – it was about pushing men out the same doors” (in Criscione 2008).
When the law came into force in 2006 the affected companies had two years to adapt to the regulation without being penalized, until since 2008 they must comply with it (Norwegian Government – Ministry of children, equality and social Inclusion 2005). And they do so, as no company was dissolved so far. While women on corporate boards made up only 6 % in 2002, they reached more than 40% by the beginning of 2009 due to the quota (Winsnes Rødland 2009). Supporters of the initiative argue that the companies had no problems in finding enough qualified women. Furthermore they suggest that the recruitment process in general has become more systematically both for finding men and women (Lindstad 2009). A study undertaken by the Institute for Social Research in Oslo stated that there is no embarrassment among women because of to the quota. The women know they would not be on the company boards without legal enforcement but at the same time they know exactly they have the qualifications for it (Lindstad 2009).
Arguments for and against
As seen with the Norwegian argumentation, supporters of positive discrimination believe that diversity adds to success and that using all human capital is vital (Norwegian Government – Ministry of children, equality and social Inclusion 2005, Bekkemellem 2006). This view is supported by a study of the US non-profit organization Catalyst which found out that companies who have three or more women on the board perform better on profits and sales (Criscione 2008). Furthermore supporters argue that it is only fair and democratic to let women reach positions of power because they are equally qualified as men (Norwegian Government – Ministry of children, equality and social Inclusion 2005, Lindstad 2009).
Missing qualification is one of the main arguments of the opponents of positive discrimination. They believe that the economy suffers from favouring women who are not qualified enough (Burns and Schapper 2008: 372). Additionally they bring forward the argument that through positive discrimination gender plays a role again, the opposite of which is supposed to be the goal of gender equality. They argue that such measures are not fair and lawful as they create another form of discrimination based on gender (Burns and Schapper 2008: 372). This view is also manifested in the terminology of positive discrimination and the sometimes used term “reverse discrimination” (Burns and Schapper 2008: 372). Moreover the legitimacy of favouring the rights of a group, namely the women, at the expense of the right of an individual, namely a man, is questioned (Burns and Schapper 2008: 373). Some criticism argues that it is not fair to let individuals suffer for past discrimination that was committed by others (America 1986: 73). Opponents are also against quotas in the private sector, because they suggest that the owners of companies should decide whom to appoint and that legal enforcement cannot change attitudes (Criscione 2008). They point at the perception of women as well and suggest that positive discrimination might result in “negative reactions from the potential or intended beneficiaries” (Taylor-Carter, Doverspike and Alexander 1995: 285).
This reaction was at least not the case in Norway. As mentioned above, women felt no embarrassment due to the quota (Lindstad 2009). Another reason for objecting positive discrimination is often forwarded by the supporters of it to emphasize that the criticism is not justified: only because men are not willing to give up their power positions they fight so aggressively against positive discrimination (Criscione 2008; Burns and Schapper 2008: 374). Furthermore, supporters question the fact that recruitment is really based on qualification when men are appointed (Burns and Schapper 2008: 377). Some see the reason for appointing mainly men in the fact that the employers are male as well. Thus, they tend to favour candidates that are like them and to avoid differences, which means appointing someone from the different sex (Burns and Schapper 2008: 377). If this thesis holds, positive discrimination could result in appointing women to higher posts naturally in the long run, because women are then already included in the decision-making process as well. A final argumentation is as simple as this statement by the former Minister of Children and Equality in Norway, Karita Bekkemellem: “So why then regulate this policy area by a new law? Because we realized, that the wanted development in Norway did not go fast enough! We do not have the patience to wait another 100 years!” (Bekkemellem 2006). In other words, supporters believe positive discrimination measures are better than waiting until balanced representation will naturally arise.
Legal limits to positive discrimination
No matter whether positive discrimination is indeed helpful or not, the concept needs legal enforcement in order to be a powerful tool. While Norway for example goes very far with implementing positive discrimination measures as could be seen in the example concerning equal representation in board rooms, the situation looks somewhat different for other countries within Europe. The usage of positive discrimination policies is at the same time supported and restricted by the legal framework of the European Union. “The Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions” states that there shall be no gender discrimination (The Council of the European Communities 1976). However, the directive contains an article that gives some room for positive action measures. Article 2.4 states: This Directive shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities […] (The Council of the European Communities 1976).
The judgement of the European Court of Justice in the case of Eckhard Kalanke, who was denied promotion because of favouring a woman who was equally qualified, shows limits to implementing such measures. The Court declared that a measure automatically favouring an equally qualified woman is illegal (The European Court of Justice 1995). Another case brought some clarification of what kind of actions are legal. In the case of Helmut Marschall a regulation was held lawful that suggested preferential treatment in the case of equal qualification “unless reasons specific to an individual [male] candidate tilt the balance in his favour” (European Court of Justice 1997). With such a savings clause, which indicates no automatic or unconditional favouring, positive discrimination is lawful.
It can be derived that measures of positive discrimination within the European Union are allowed only with strong limitation. It is thus not reasonable to describe positive discrimination as a perfect tool to enforce gender equality. Positive discrimination cannot be forced upon. Regulations need to contain a savings clause and such a clause allows for avoiding the promotion and recruitment of women.
In conclusion it needs to be affirmed that positive discrimination can help enforce a more gender balanced distribution in the areas where implemented as seen with the example from Norway. In such cases it helps to create the intended result. However, legal limits constrain the concept of positive discrimination. Within the European Union it is a tool that can be used only with equal qualifications of the candidates and a savings clause that leaves room to avoid positive discrimination.
Therefore another aspect to be considered concerns the attitudes of society. Without changing them, positive discrimination constitutes only a tool to affect the result. Real gender equality where gender plays no role in appointments is not reached through it, as positive discrimination is another form of discrimination based on gender. Nevertheless, there might be other effects than just creating a result when considering the long run. By accustoming people to a balanced gender distribution, attitudes might be changed in the long run and furthermore the decision-making process might be influenced by women resulting in equal treatment. Whether positive discrimination is fair and beneficial depends on the personal point of view. Taking all the arguments and limits into account it can be concluded that positive discrimination is definitely not a perfect tool. It is the tool with the quickest results though and can thus be described as an adequate tool if the wish for balanced gender representation is judged to be more important than the objections against positive discrimination.
However, discussing it we should not neglect the necessity of changing attitudes by strengthening the conscience for gender equality in public, for example through the media. Furthermore, the lighter forms of positive action like increasing training measures might be of importance as well (Rees 1992: 130). In the long run this could destroy the argument of women being not qualified enough. Additionally, the question of reconciliation of work and family life should play a major role in the discussion of gender equality and the efficiency of positive discrimination. Taking into consideration the constraints imposed by family life tasks and looking for options and measures to help overcome these could prove to be of great significance.
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