Positive Discrimination -- Do We Need It?

Positive Discrimination -- Do We Need it?

For centuries, the global community has strived to eliminate discrimination against minority groups. For centuries, women had been emotionally and/or physically abused; they were prohibited from voting and working. Today, they are allowed to work outside the household, but they are still paid less than their male counterparts. Additionally, the responsibility of raising the children and completing the household chores remains heavily preponderant among the female categories.

The women represent one of the most obvious categories of people discriminated against; but they only represent a mere fraction of the overall population subjected to discrimination. And the grounds for the discrimination are multiple, to include anything and everything from gender, race, ethnicity, sexual orientation, political and religious appurtenance, age or disability.

The modern day society is making intense efforts to ensure that discrimination is eliminated -- or at least decreased to the minimum level possible. Much still remains to be done, but positive results are obvious at all levels of discrimination battles. One important step in these battles was represented by the development and implementation of laws that protect the minority populations, which prevent and punish any act of discrimination. Still, aside from the actual laws, an important role is also played by the consciousness of the populations, revealed specifically at the level of ethical and moral conduct.

In light of the substantial evolutions made at the level of eliminating discrimination, a new situation is observed in which the community strives to compensate for the discrimination to which a specific category had been subjected in the past. Through this approach, the community will grant the individual merits based on their appurtenance to a minority group that had suffered discrimination in the past. This situation is know as positive discrimination, and the current project strives to assess whether it is necessary or not within the modern day society.

2. Discrimination and positive discrimination

In order to better discus discrimination and positive discrimination, it is first necessary to define the two terms. In this order of ideas, discrimination is generically understood as a situation in which the decisions made regarding an individual are made based on criteria that would not be normally relevant for the decision, such as religious appurtenance, gender, sexual orientation and so on. The lines below reveal some relevant definitions of the concept, as identified within the specialized literature.

"When economic differences arise because of irrelevant personal characteristics, such as race, gender, sexual orientation, or religion, we call this discrimination. Discrimination typically involves either (a) disparate treatment of people on the basis of personal characteristics or (b) practices (such as tests) that have an adverse impact on certain groups"

"According to UN Human Right Committee, discrimination is any distraction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other stats, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms"

Positive discrimination is different from discrimination in the sense that it includes actions and activities aimed at compensating for the discrimination that had existed against the individual. It has a rather corrective nature, perceived as retribution for a wrongdoing of the past. Erika Ann Carr at the Western Michigan University states that positive discrimination is an affirmative action designed to:

"Remedy past discrimination, remedy present discrimination, […], eliminate discrimination and disadvantages, eliminate / prevent / reduce discrimination etc."

"Positive discrimination is a form of affirmative action designed to directly redress the disadvantage that groups of people have experienced in the past. It is based on the premise that justified discrimination is needed in some situations for disadvantaged people to have the opportunity to become equal within society" Making Multicultural Australia.

"Positive discrimination implies applying different criteria for selection to representatives of different groups as a way of addressing the existing social inequalities. It can be distinguished from positive or affirmative action which implies taking proactive steps to encourage certain groups to participate in the social, economic, and political life of a country"

3. The case of positive discrimination

Positive discrimination is derived from the concept of affirmative action, which basically refers to the effort completed by various members in the society to right the wrong done for specific categories of the population. While the specialized literature has yet to reach a universally accepted definition of positive discrimination, this is often perceived as occurring "through programs in employment, education, housing or electoral policy, [and] the core objective of this initiative is a commitment to fairly integrate traditionally disadvantaged groups into public institutions and processes"

During the 1960s decade, the American society had become focused on social programs that ensured federal support for various categories of the population. Disadvantaged groups of people were offered financial support by the government and a culture had been created around this trend. Still, the economy grew at rapid rates, and the problems of discrimination continued. Specifically, the advantaged category was represented by white males, and the disadvantaged categories were represented by women and other minorities. The advance of the economy created more opportunities for the advantaged category, while the state funds supporting the disadvantaged categories remained rather stable.

Gradually, the disadvantaged categories gained more and more access to employment opportunities. This was supported by all affirmative action, federal involvement through legislations of non-discrimination, as well as the development of the economy, which created more employment opportunities. Gradually as such, the gap between the advantaged and the disadvantaged categories widened and this was mostly due to the battles for affirmative action led within the workplace.

During the more recent years, the fights for affirmative action -- and as such positive discrimination -- were extrapolated from within the labour force scene into the educational domain, with increased presence in higher education. There are several intriguing dimensions of affirmative actions in higher education. For instance, universities and colleges are public institutions, meaning that the struggle and the results of affirmative action are out in the open, for the public to witness. Then, since the institutions for higher educational attainment are state owned, there is a question of whether or not the public money -- coming from all taxpayers across the country -- ought to be utilised in the struggles for affirmative action and positive discrimination.

Traditionally, the educational institutions were reluctant to employing affirmative action and positive discrimination as they strived to remain objective and not interfere in any political movement. These institutions strived to preserve their integrity and move away from any potential accusations of bias. More recently however, they came to the realization of a need for diversity within their campuses, and are using positive discrimination in an effort to increase this diversity among the students. At a specific level, several universities across the United States eased the access of minority groups of population to their educational programs, and this was unwelcome by the white population. In turn, the situations materialized in lawsuits filed by the white population, in which they argued that they had been discriminated against the minorities.

The rulings of the courts that presided the trials differed, and the dispute over the issue is far from being complete.

4. Legality and morality of positive discrimination

The society of the modern day era is striving to eliminate discrimination from the behaviour of mankind, and this is perpetuated through two distinctive courses of action. On the one hand, there is the moral and ethical expectation to behave in a manner which is equal and fair towards all the individuals. On the other hand, there is the legal requirement for the people to treat those around them with equality and fairness. In other words, there is a distinction between legal requirements for non-discriminative action and moral and ethical expectations regarding the conduct of the individuals.

Within the legal context, the primordial emphasis falls on the management of the individuals within the labour force context. Traditionally, the policy makers would focus on creating legislations that ensured the equal treatment of the staff members, regardless of race, gender, religion and other such elements. The sole criteria for employee related decisions -- such as promotions and other benefits -- would be constituted by features related to the ability of the individual to perform their work related tasks.

The lines below reveal the most important anti-discrimination laws, as issued and implemented by the United States Federal government:

The Civil Rights Acct of 1967 forces employers to offer equal employment rights to all candidates, regardless of gender, race, religion colour or national origin.

The Equal Pay Act of 1963 prohibits employers from engaging in actions of wage discrimination.

The Age Discrimination in Employment Act of 1967 protects the employees over the age of 40 from abusive termination.

The Rehabilitation Act of 1973 prohibits federal employers from acting in a discriminative manner towards the employees and candidates with disabilities

The Americans with Disabilities Act of 1990 protects employees and candidates with disabilities in the private sector.

The Civil Rights Act of 1991 allows those who feel discriminated against to request financial restitution for the treatment to which they had been subjected.

All in all, these legislations point out to the need for the society to treat its members equally, regardless of race, gender, religion and other such traits. These laws were created to prevent discrimination from occurring, but they also play a role in positive discrimination.

The enforcers of positive discrimination act in this direction in an effort to excuse the discrimination that has occurred to the disadvantaged categories in the past, or in different situations of the present. But what they do not realize is that they in fact act in a way in which the so far favoured categories are discriminated against. The majority then comes to be granted fewer rights, less access to employment opportunities or educational programs, as the decision makers strive to compensate for previous discriminations. In this however, they employ the tactics of discrimination, which are regulated by legislations. In all then, the anti-discrimination laws also regulate positive discrimination, and render it illegal.

While the matter of legal stance regarding positive discrimination is quite clear, the moral and ethical aspect of the concept is rather challenging. First of all, it is noted that positive discrimination is engaged in an effort to offer compensation for a previous act of discrimination to which the individual or the category had been subjected. From these lenses, the positive discrimination would be perceived as highly moral and ethical. Nevertheless, positive discrimination still means that the merits are offered to an individual based on their past experiences and traumas. And the individuals in the majority population are disfavoured since they were not previously subjected to discrimination. But this decision ensures that the so far favoured category is now discriminated against.

The decision makers integrating positive discrimination in their actions and operations strive to treat people fairly, based on previous situations, which might be a moral course of conduct. Nevertheless, the social expectation and the legal stipulation is that people be treated equally, rather than fairly. All in all then, positive discrimination is not legal, but it could be perceived as moral, from one standpoint. Through different lenses however, positive discrimination can also be perceived as unethical and immoral.

5. Jurisprudence on positive discrimination

Jurisprudence thinkers through time have approached the matter of discrimination and positive discrimination from various angles. John Stuart Mills for instance spent increased amounts of time studying the two genders. He concluded that there were no major differences between males and females that would explain the existence of different treatments of the genders.

"Therefore, women ought to have the same civil and political rights as men. Mill's argumentation is the historical basis for the concept of formal equality in the liberal tradition of ideas: seeing that there do not exist any actual, substantial differences between the sexes, neither that there do not exist any reasons to treat women in a different way from men."

In other words, the emphasis of Mills fell on the need to treat the gender equally, and not engage in either discrimination against women or positive discrimination in favour of women. While Mills has a rather straightforward approach to discrimination, Jeremy Bentham's discussion of discrimination reveals a more complex dimension. Bentham as such integrates the notion of relativity in the discussion of discrimination Bentham,

pointing out to the fact that it would be rather difficult to clearly state whether discrimination -- and more importantly, positive discrimination -- would be legal, illegal, moral or unethical.

Last, David Hume was an advocate of discrimination, in the meaning that he recognized the differences between various categories of population. He did not populate the dogma of treating people differently, but rather noted the existence of differences and recognized them. He believed that the awareness over the differences helped to increase the passion of human interactions, the successes related to various fields and overall motivation for the individual.

All in all, this review of the thoughts and perceptions of classical jurisprudence thinkers once again reveals the previous finding that positive discrimination is a complex concept, which can be perceived from two distinctive angles. On the one hand, it can be perceived as moral and acceptable, whereas on the other hand, it can be perceived as illegal and immoral. In the context described here however, the final conclusion is that positive discrimination is a form of discrimination nonetheless, and it is not necessary within the society. Merits should alone be granted based on performance criteria or other criteria as related to the project at hand, and features such as race, gender, religion, sexual orientation, age or disability should not represent criteria for the awarding of benefits, opportunities, distinctions and other such merits.

6. Conclusions

The modern day society is extremely evolved and developed, and this is obvious not only at the level of the technological advancements, but also at the level of social evolution. The contemporaneous society is marked by fights for equality and for more rights. The modern day workforce is for instance protected through a wide array of legal mechanisms, whereas the females are closer to gender equality than they have ever been. While much still remains to be done, the developments are undeniable.

In fact, the importance and emphasis on social equality has increased to such a degree, that in some circumstances, decision makers strive to compensate for the injustices of the past, with new measures. This course of action is generically referred to as positive discrimination, and it is a narrow part of the larger concept of affirmative action, through which the minority categories strived to ensure equal treatment.

Still, the enforcers of positive discrimination often fail to make the distinction between fairness and equality. They as such grant more rights to the minority categories of the population, in hopes to compensate for the discrimination to which these categories of the population had been subjected to in the past or in other instances of the present. In implementing this perception, the decision makers strive to promote fairness, but they disregard equality, which is the premise in all legislations addressing discrimination issues. From the standpoint of morality however, the issue is more complex and it can be perceived from both angles.