Affirmative Action: Exception to or Aspect of Equality?

Abstract

Affirmative action is believed to be an interesting tool to promote or achieve equal opportunities in society. The term affirmative action was coined in the United States in the aftermath of the civil rights movement and began to spread to other countries shortly thereafter. Meanwhile, various terms and definitions are used to designate or describe these measures. In a broad interpretation, affirmative action is understood to encompass all measures that go beyond the prohibition of discrimination and seek to improve the position of members of a disadvantaged group in one or more social areas. Affirmative action does not merely consist of preferences but covers both weak measures that do not involve preferential treatment (active nondiscrimination, purposeful inclusive policies, outreach) and strong measures that do involve preferential treatment (preferential treatment, redefining merit). Affirmative action has always been and remains controversial. While proponents argue that affirmative action is an important instrument to achieve a more equal and just society, opponents argue that the instrument is unjust and discriminatory in itself. The question of the relationship between affirmative action and the principle of equality is answered differently by different jurisdictions. The instrument may be viewed as an aspect of the principle of equality (e.g., international law) or as an exception to this principle (e.g., EU law). As affirmative action is subject to the vagaries of the political process, these approaches are not set in stone but may evolve over time.