Legal Guide

Positive Discrimination: Features of This Phenomenon

Positive discrimination is an approach to combating discrimination. It describes the preferential treatment of one person over the treatment of another person in the allocation of social goods due to the first one's belonging to a discriminated identity-forming group.

A positive discrimination works as an umbrella term for institutional or political measures and strategies to eliminate discrimination. Moreover, this practice is often found at work. The clear distinction between the sexes is seen as an unequal treatment for which there is a genuine reason. One example of this is quotas for women.

What is Positive Discrimination?

Positive discrimination is the issuance of privileges to disadvantaged groups of the population. In the United States, this practice started to be used in the 1960s to combat racial segregation. When receiving benefits, African Americans had a chance to go to university and get prestigious jobs.

This practice has a broad range of manifestations: from quotas at the state level to ordinary propaganda. For instance, some universities attract people from different racial groups through grants or incentives. In some countries of Europe and Asia, this practice is enshrined at the legislative level, while in Japan, it is prohibited.

What is positive discrimination?

An example of this is adding to job vacancies from government agencies: "People with severe disabilities are given priority if they are qualified to do so." In this example, the goal is to remedy existing shortcomings through targeted preferential treatment. Another case is the unequal treatment provided by the Youth Protection Act or the Youth Employment Protection Act. Here, young people are given more vacation time than adults, forbidden to buy cigarettes or alcohol. Not discrimination, but objectively justified unequal treatment, which in this case is aimed at protecting the health of young people.

Difference Between Positive Action and Positive Discrimination

Positive action and positive discrimination are various terms that have their characteristics:

  • Positive action aims to achieve de facto equality actively through support measures for specific groups.
  • They aim a specific group of people who have been discriminated against in the past and continue to face discrimination based on common ground.
  • A positive measure explicitly encourages individuals belonging to this group to compensate for the actual disadvantage.
  • Positive discrimination also refers to unequal treatment of two groups of people, which aims to compensate for the previous disadvantage of one group. However, unlike affirmative action, affirmative action is disproportionate and not justified.

Therefore, the people not covered by the relevant positive action are treated unevenly. However, such unequal treatment pursues the legitimate aim of compensating for the discrimination experienced. It usually requires a legal basis that sets out the framework for a reasonable and proportionate measure.

Positive measures are to be differentiated from diversity management or mainstreaming. Diversity management and mainstreaming are often used in the private sector. They aim to promote diversity and tolerance across the board and the integration of disadvantaged and underrepresented groups. But this does not necessarily require a legal basis. Nevertheless, positive measures can be used within diversity management or mainstreaming.

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