Changing the Norm: Positive Duties in Equal Treatment Legislation

This paper assesses the emergence of a new proactive model to achieve gender equality, and compares it with the more established complaints led model based on individual rights. While transcending many of the weaknesses of the individual complaints model, the proactive model remains ambiguous in many crucial respects, particularly as to its objectives, its use of participation, and how compliance is to be achieved. The paper aims to shed more light on these key aspects by drawing on the experiences of such models in Canada, Northern Ireland, Britain, and the EU itself. This demonstrates that the location of proactive strategies on the borderline between law and politics makes them highly dependent on political will. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model. Two different models are emerging for the achievement of equality: an individual complaints led model based on a traditional view of human rights; and a proactive model, aiming at institutional change. This paper aims to compare and assess these two models in the context of the EU. I argue that while the proactive model has important advantages over the more established individualised model, its weakness lies in its basis in policy rather than fundamental rights. This leaves proactive models highly dependent on political commitment and vulnerable to the vagaries of political change. The key challenge is therefore to ensure that proactive strategies are based on a recognition that equality is a fundamental right, not a discretion, and to structure the duty round the concept of a fundamental right, without reverting to individualised complaints mechanisms with all their inbuilt weaknesses. In the first part of the paper, I examine the traditional model of individual rights, highlighting its weaknesses in the context of gender equality. Part II examines the newly developing proactive model and the particular challenges it poses. This section draws on the experience of other jurisdictions to substantiate the points. I focus in particular on pay equity legislation in Canada, the race equality duty in Britain; the fair employment legislation and positive duty on public authorities in Northern Ireland; and the Open Method of Coordination in the EU as it relates to employment and social inclusion. I consider three particular aspects of the model: namely, its aims and objectives; the role of participation; and regulatory and compliance mechanisms. Part III turns to the role of each model within EU law. The first approach is found within the traditional lexicon of Treaty provisions and directives, covering both equality as such and flexibility. The second approach is found in policy documents, and soft law, and has flourished in the moist soil of the new methods of governance so popular in current EU structures. I will look particularly at gender mainstreaming and the European Employment Strategy (EES). This section highlights some of the weaknesses in these strategies, in particular the ambiguity as to aims and objectives, and the difficulties experienced in separating strategies from outcomes. I conclude by considering how we might achieve a fundamental and non-derogable core of rights within a proactive model.

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