A Study on Affirmative Action and Positive Action as Countermeasures to Employment Discrimination in the U.S. and the E.U.

There is usually high concentration of women working primarily in low paying jobs, and women are often denied equal access to better paying jobs, managerial positions and promotions. This problem can be attributed to the fact that women have been discriminated and marginalized in the employment setting. The U.S. and E.U. have been taking affirmative action and positive action, respectively, as countermeasures to employment discrimination. In 1976, the E.U. Council adopted the Equal Treatment Directive in which direct or indirect sexual discrimination is prohibited with respect to employment or promotion under Art. 2(1). On the other hand, Art. 2(4) of the directive provides that the said directive “shall be without prejudice to measures to promote equal opportunities for men and women ... by removing existing inequalities which affect women's opportunities.” A conflict seems to appear because positive action authorized under Art. 2(4) would be in direct conflict with the principle of equal treatment under Art. 2(1) of the ETD. Kalanke v. City of Bremen is one of the two most significant cases that dealt with this conflict. A factual situation of this case was that although a male and a female candidate for a managerial position had equal qualifications for the job, the male employee was denied a promotion because the German law required that a female applicant with the same qualification as the male counterpart must be given priority if women are underrepresented in that employment field. The European Court of Justice found that the German legislation violated the ETD by holding that national regulations guaranteeing automatic and unconditional promotion of women who hold qualifications equalto their male colleagues are discriminatory and beyond what the ETD requires. Thereafter, the ECJ had another opportunity to clarify its position on positive action. In Marschall v. Land Nordrhein-Westfallen, a male and a female teacher applied for a higher position in the German school system. Although they were equally qualified, the female applicant was given a priority and consequently the job pursuant to the German law. The languages of the legislation was similar to the one in Kalanke except that this legislation contained a “saving clause.” The law provided that “where there were fewer women than men in particular career bracket, and female candidates were as equally well qualified as their male counterparts, they were to be given priority for promotion unless reasons specific to an individual [male] candidate tilt the balance in his favor. “The ECJ found that the German law was within the derogations allowed under Art. 2(4) because the saving clause operated to ensure that the preferential system was not ”absolute and unconditional.“ However, due to the ambiguities in the definition of the saving clause, a possibility of its abusive application by employers cannot be ruled out. The significance of Marschall case lies in its recognition that women have been unfairly discriminated in employment and promotion because of prejudices and stereotypes concerning the role and capacities of women in working environment. Further, the ECJ in Marschall case appears to support the view that equal result or representation through positive action is necessary to provide women with real equality in employment. The guarantee of equal opportunities at the starting point would not be sufficient to achieve real equality for women in employment setting. The ECJ here also appears to recognize that sex discrimination against women in employment is part of a greater social problem that continues to exist in the reality of social life. To deal with such social problems effectively that have been reflected by societal discrimination against working women, positive action would be necessary. Contrary to the ETD in the E.U. which specifically authorized positive action, the Civil Rights Act, the counterpart statute in the U.S., is silent on the issue of affirmative action while it prohibits employers to discriminate its employees based on race, color, religion, sex or national origin. However, the U.S. Supreme Court has dealt with affirmative action issue in several cases. University of California v. Bakke is the first one in which the Court found the school's admission program with a quota system for minority students to be unconstitutional. The Court in Bakke required a specific finding or evidence that the university engaged in a discriminatory practice in the past in order to justify the implementation of affirmative action program. Thereafter, the U.S. Supreme Court in Steelworkers v. Weber and Johnson v. Transportation Agency recognized that certain employment categories have been segregated and excluded to women and minorities due to societal discrimination against them. Therefore, affirmative action plans were permissible as long as they were designed as remedial measures for such societal discrimination even if there are no evidences of prior discriminatory practices. The Supreme Court's permissive and expansive view on the scope of affirmative action, however, has been significantly narrowed by other cases later on. By requiring identifiable and specific evidence of discrimination in order to validate a certain affirmative action measure, the Supreme Court has disregarded the racial and gender imbalances in employment due to this societal discrimination. The Supreme Court in Grutter v. Bollinger recognized that pursuing diversity of student body was a compelling interest and that the race of an applicant could be considered as one of the several factors in deciding student admissions at the school. However, the Court required that the admissions policies must be narrowly tailored to the compelling interest in achieving student diversity. The constitutional hurdle of satisfying the compelling interest as well as narrow tailoring test appears to be rather complicated and difficult to pass. The E.U., on the other hand, recognized that women in employment sectors have been disfavored and disadvantaged because of prejudices and stereotypes against them that have existed in society. Positive action such as the ETD is necessary to resolve this kind of societal discrimination. For example, the ECJ in Marschall indicated its willingness to permit positive action plans that are implemented as remedial measures to remove this societal discrimination. Whereas the E.U. seems to support the view that equal result is necessary to realize substantial equality for women in employment markets, the U.S., as seen in the case laws, seems to show its reluctance to allow affirmative action measures that provide anything more than equal opportunities at the starting point. The E.U. emphasizes the equality principle as part of human rights. Further, the E.U. shows its strong commitment to safeguard and further equality between men and women in employment by recognizing positive action as a necessary measure to achieve that objective. On the other hand, the U.S. in its legislative, executive and judicial bodies has shown its relatively passive attitudes toward the issue of equality in employment. Positive action and affirmative action should be construed as a countermeasure necessary to eliminate or reduce the existing inequalities and the remaining inequalities as a result of past discrimination rather than simply as a measure to compensate for the past inequalities.