There are certain situations when preferential treatment is given to persons with particular characteristics who are in a disadvantaged position. This is usually done to correct inequalities existing in practice. Preferential treatment in these situations will not be considered to be discriminatory.
What is positive action?
Positive action can be seen in situations when steps are taken to help or encourage certain groups of people who, due to cultural, traditional, historic, economic or other reasons, are disadvantaged in access to work, education, and training. Such preferential treatment is aimed at correcting and eliminating past or present inequalities that exist in practice and are suffered by a particular group of people. These compensatory and corrective measures are introduced to promote effective equality in contexts where purely legal/formal equality actually masks or creates inequalities in real life. Positive action is also sometimes called “positive discrimination”.
Positive discrimination therefore seeks to correct the disadvantages accumulated over generations by certain groups, by temporarily granting them certain preferential advantages, particularly in recruitment, for example by introducing quotas.
example In France, to encourage employment of disabled people, all employers with more than 20 employees must employ disabled persons to a proportion of 6% of their total workforce.
Positive action in France
The principle in France is that of republican universalism, which means that French people are “one and indivisible” group made up of individuals represented in an indistinct manner, regardless of their origin, gender, race etc. France is therefore traditionally opposed to treating groups differently and identifying minorities based on their origin, race, religion etc. This explains why positive discrimination was previously banned in France. This position has now changed a bit, positive discrimination is allowed for reasons of general interest, as long as the difference in treatment is directly related to the purpose of the law establishing it.
Positive discrimination can take place in the area of employment but also in other situations, for example in politics, in the provision of public services and social benefits, etc.
example In France, different laws require political parties to put forward an equal number of men and women in their lists for municipal, regional, senatorial and European elections. Lists that do not respect parity are not registered. For legislative elections, parties that fail to nominate 50% of female candidates are subject to a financial sanction.
Employment
In the area of employment, the French Labour Code allows differences in treatment that are designed to promote equal treatment in favour:
Similarly, temporary measures taken in favour of women to establish equal opportunities between men and women, in particular by remedying de facto inequalities affecting women’s opportunities, are allowed.
example Employers may reserve at least half of the job interview invitations to women qualified for the work position. Employers may choose a woman over a man for a job when they have equal skills, as long as this preference is not automatic and that male candidates are not systematically rejected.
Employers can therefore take positive actions to help people or specific groups if they are disadvantaged in some way in relation to work, or they have particular needs which are different from other people not belonging to that group.
example A university can take some initiative to stimulate women to apply more for certain subjects, such as technology, where women are often under-represented. A large company may also conduct a special employment programme aimed at hiring more employees from the Romani community.
Requirements for application
To apply the exception of positive action, the choice and need for such policy must be explained, the measures used have to be proportionate and such a policy needs to be announced in advance.
example The exception of positive discrimination would not have been applied correctly if an employer had refused to employ a better qualified man to give preference to a less qualified woman, if the policy to give preference to women had not been announced in advance.