Affirmative Action In The United States And The European Union: Comparison And Analysis Cover Image

"Afirmativna akcija" u Sjedinjenim Američkim Državama I Evropskoj uniji: poređenje i analiza
Affirmative Action In The United States And The European Union: Comparison And Analysis

Author(s): Ivana Krstić
Subject(s): Law, Constitution, Jurisprudence
Published by: Универзитет у Нишу
Keywords: affirmative action; positive discrimination; beneficiary; implementation; equality; race; woman; liberal state; social state; US Supreme Court; European Court of Justice.

Summary/Abstract: The existence of affirmative action (better known as "positive discrimination") demonstrates that there are areas where law as a neutral tool shows its limits as a means of resolution of social disputes. This paper undertakes a comparative exploration of affirmative action discourse in US and EU law. Affirmative action first appeared in the US in the 1960s and 1970s, and initially it was used only in the context of racial discrimination. More recently, however, affirmative action came to be extensively utilized in the EU, and it is primarily used to ensure women equality in the workforce. Both systems recognize that affirmative action constitutes a departure from the fundamental principle of formal equality, and because of that departure, requires further justification. However, in the EU, Article 2(4) of the Equal treatment Directive explicitly allows deviation from formal equality that makes the justification of positive action easier than in the US. The usual test applied by the European Court of Justice (ECJ) in reviewing a measure justified under derogation is that of proportionality, which has three parts: suitability, necessity, and proportionality. In the US, there is the raging debate in the US Supreme Court over which is the correct standard of review with regard to race-based governmental actions. The ECJ sees positive action as a measure to diminish discrimination in the whole of society showing that women are not still an equal footing with the men in employment, and no evidence of past discrimination is required. On the contrary, the US Supreme Court's held in Croson that evidence of societal discrimination against minorities, by itself, would not suffice to justify a preferential treatment. Finally, the affirmative action plan in the EU is seen as a remedy for discrimination that women suffer due to persistent stereotypes. From another side, the US Supreme Court recognized in Bakke that "preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. "Today, it is evident that affirmative action in both systems sends both inspiring and disturbing messages. It is very important for us to study it's implementation in these two developed systems, especially after the adoption of the Charter on human and minority rights and civil liberties, which explicitly allows this measure in article 3, to enable every inidividual to equally enjoys its rights.

  • Issue Year: 2003
  • Issue No: 7
  • Page Range: 825-843
  • Page Count: 19
  • Language: English