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Anti-discrimination law is a highly debated topic in today’s society. With non-governmental organizations lobbying for equality and the ratification of the Universal Declaration of Human Rights by most nations, there has been a concerted effort to eliminate all forms of discrimination. However, this eradication of discrimination does not come without a cost. In recent years, the polarising concept of ‘affirmative action’ has garnered much attention. This essay will analyze a common argument made against affirmative action – that affirmative action is a form of reverse discrimination, and assert that this argument is weak. The essay will then conclude by arguing that affirmative action policies should still be practiced alongside the use of safeguards.
Compared to the history of anti-discrimination law that spans 130 years, the history of affirmative action is much shorter. Developed and conceived in the United States in 1961 by President John F Kennedy, the first-ever policy on affirmative action required all employers to ensure that ‘applicants are employed . . . without regard to their race, creed, color, or national origin’.
Over the years, the application of affirmative action policies has become rife in the education and employment sectors. Affirmative action seeks to address the ‘phenomenon of historical and present disadvantage for groups including racial minorities and women within societies around the world’. For the purposes of this essay, affirmative action is defined as the practice of favoring individuals based on their possession of a protected attribute, as compared to another without that attribute. In Victoria, a list of protected attributes can be found under the Equal Opportunity Act 2010 (Vic) and includes amongst others, sex, race, and age.
Legislating for affirmative action in Australia was highly controversial. Affirmative action, also known as ‘special measures’, is implemented both at the Federal and State levels. To list, the Sex Discrimination Act 1984 (Cth) is but one of many institutional levers advocating for a change in the labor force participation of women in Australia. Under this Act, special measures are permitted for the purposes of achieving substantive equality between men and women.
A common argument made against affirmative action is that it is a form of reverse discrimination. When a benefit is conferred on a group of people on the basis of the protected attribute, persons without the protected attribute are discriminated against as a distinction is made on the basis of that difference. Such a premise may be illustrated through the following example – similar to how blacks and women have been historically discriminated against by white males, white males would also, by virtue of affirmation action policies, be discriminated against on the basis of not possessing the protected attribute. By treating similarly situated people differently, a breach of procedural justice is also observed. Therefore, discrimination against white males (people who do not possess the protected attribute) should be classified as being of the same evil from which traditional discrimination of women and blacks (people possessing the protected attributes) have evolved. This was further substantiated by Thomas J who held that ‘discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice’.
Under such a premise, proponents against affirmative action will construe such policies as being a license to discriminate. Furthermore, the argument that affirmative action exists to redress historic disadvantages carries little weight. If it were the case that the disadvantage (possession of a protected attribute) was the real concern, this disadvantage should be the sole criterion for the benefit to be conferred. However, given that such disadvantages are but one of the indicia under affirmative action policies, it is innocuous to award a person with the benefit simply based on that disadvantage – doing so would simplify the continuing debate with the simple proposition that two wrongs make it right.
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