Phenomenon of discrimination existed in the entire human history, from the emergence of states. However, only in the middle of the 20th century, the international legal system established the principle of non-discrimination of personality, which prohibited any discrimination and guaranteed to each member of the human society being equal to the scope of rights and freedoms. Prohibition of discrimination on the international level was a powerful incentive for the relevant standards within the national legal systems. In a relatively short period, a large number of international and national regulations to combat discrimination emerged.
However, despite the extensive regulatory framework, discrimination remains one of the most complex problems of the modern society, having a global character that existing in all countries of the world and layers of the population. In the new context of globalization, accompanied by such negative phenomena as mass migration, terrorism, and the desire of some states and large corporations to extract maximum profits, polarization in society, inequality is increasing.
The principle of non-discrimination requires specification, eliminating uncertainty in the content. It is necessary to identify the enormous potential of the international law in combating discrimination, on the implementation of which the peace and wellbeing of all people largely depends. Therefore, all of the above makes the current selected theme relevant and proves the importance of making a research. This research analyses the relations between U.S. and other subjects of international law in the field of positive discrimination and its aim is to explain the necessity of the affirmative actions for the society.
Concepton of Affirmative Actions
Affirmative action is a commonly used term, but, unfortunately, not always with the same meaning. While for some people, the concept of affirmative action is also covered with the term positive discrimination, it is essential to emphasize that the latter term makes no sense. On the contrary, the term positive action, which is more frequently used in the United Kingdom, is the equivalent of the term affirmative action. In many other countries, these actions are known as preferential policies, reservations, compensatory or equitable distribution of benefits, preferential treatment, etc.
As a legal concept, affirmative action takes a place in the framework of international and national law. At the same time, this concept has no generally accepted legal definition. Any serious discussion of the concept of affirmative action, however, requires as a prerequisite, to have a working definition. Szyszczak (1992) states:
Affirmative actions are a progressive series of temporary measures designed specifically to improve the situation of a target group in one or more aspects of their social life, in order to ensure the effective equality.
In some countries, the policy of affirmative action is voluntary and encouraged. In other countries, it is mandatory and its nonfulfillment is penalized. This policy is not limited for employment and education; it can also cover the issues of housing, transportation, voting rights, training, and appointment to the political, executive and judicial offices, the awarding of contracts or grants.
Affirmative action is always directed at a specific target group, which consists of individuals who have a common characteristic that defines their membership in the group, and feel they are at a disadvantage. While such a characteristic is often inherent and inalienable, such as gender, color of skin, nationality or membership in an ethnic, religious or linguistic minority, sometimes there are other reasons for affirmative action implementation. Thus, the objects of the past and existing affirmative action programs as such were women, people with black skin, immigrants, the poor, the disabled, veterans, indigenous peoples and other racial groups, specific minorities, etc.
Target Groups of Affirmative Action
A critical issue that also causes a great difference in opinions is the question of how to make a decision as to which of the groups is so marginalized that it deserves to give it special treatment. Despite the fact that certain international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women are relevant to this situation, often, the national law determines who can benefit from the provisions provided for by affirmative action.
Affirmative action is often the result of the combined effect of the two following factors existence of a stable state of injustice, which is not always recognized as such; clear statement of the legal right to the assistance by the representatives of the disadvantaged groups. For example in Canada, the adopted Act on Equality in employment requires employers in fields relating federal jurisdiction in order to provide preferential treatment to designated groups such as women, people with disabilities, indigenous peoples, racial minorities. In most Canadian universities, the representatives of the indigenous population are given less strict entry requirements (Greenawalt, 1983).
They also have the right to receive special scholarships. In some provinces and territories, the same policy is practiced. For example, in the Northwest Territories, indigenous people are given preference in hiring. They are the owners of P1 status. People who do not belong to the indigenous population, but born in the north-west of Canada or who have lived there for more than half of their life, exactly as women and people with disabilities are recognized as "P2". Men have the lowest priority level "P3". There are cases when people are given a job in spite of the fact that their rates are lower than other candidates since they have a higher status.
In the United States, affirmative actions are applied to the racial and ethnic minorities disadvantaged in the past, women, people with disabilities and veterans. Affirmative actions have become the subject of numerous court cases and were reviewed for compliance with the Constitution. In 2003, the U.S. Supreme Court ruled that belonging to a certain race might be taken into consideration when matriculating individuals. Conservatives complain about the systematic violation of this decision by the civil servants.
Conversely, some universities are using cash incentives to attract members of racial groups that, as a rule, have been under-represented in high school, and who typically have a lower standard of living. President orders No. 11246 and No. 11375 prohibit discrimination based on race, color, religion, sex, or national origin by federal contractors and subcontractors in employment. In the U.S., press and public rarely state of the egregious forms of positive discrimination, when the representatives of racial and ethnic groups not belonging to minorities have been denied career development solely on the basis that they do not belong to any of the minority groups.
For example, in 2003 the Fire Department of New Haven refused to promote all firefighters of European race because among those who have passed a professional qualification examination, there were no representatives of racial minorities. The complaint of firefighters, who were denied career development based on that decision, was rejected by the judge Sonia Sotomayor, a representative of the Latin American racial group, later chosen by President Barack Obama to the post of Chief Justice. The court's decision was eventually reversed six years later, in 2009.
Why Does the Society Need Affirmative Actions?
Before the start of the implementation of affirmative action, the state tries to justify its appropriateness to public opinion. The following are the most common reasons for applying affirmative actions.
Correction or Elimination of the Historical Injustice
The aim is to compensate for international or specific discrimination in the past, which still has repercussions. Certain disadvantaged groups have been discriminated for long periods of time, which is why their heirs find themselves in the disadvantaged situation due to, for example, poor education and training. In such a case, positive action has a collective nature, restoring the position of the group, in which it would have been today if in the past, the injustice had not taken place. This justification for affirmative action was used and continues to be used mainly in the United States in order to support public policies aimed at eliminating the existing effects of past racial discrimination against African Americans.
Commission on Civil Rights of the United States stated, "Affirmative action includes any measure beyond simple termination of discriminatory practices that are adopted to correct or compensate for past or present discrimination or to prevent the repeat of discrimination in the future." At the same time, the opponents of this policy argue that a socio-economic situation, in which groups of a given society are at present, often bear no relation to the harm that was caused to them in historical perspective. All this calls into question the appropriateness of policies aimed at the analysis of the past (Hodges-Aeberhard & Raskin, 2005).
Elimination of Social/Structural Discrimination
The fact of still existing discrepancies in educational, social, economic and other status indicates that the provision of equal rights to all people before the law establishes a formal equality, but it is insufficient to address adequately the issue of the current practice in the society, which leads to the structural discrimination. In essence, the concept of structural discrimination includes all kinds of measures, procedures, action or legal provisions that are nominally neutral related to the race, gender, ethnicity, etc., but which have a disproportionately adverse impact on disadvantaged groups, without any objective justification. Such discrimination is possible in two following ways one can deliberately hide own agendas under the guise of objective criteria, or it is possible to act in good faith hiring employees of a certain profile. Nevertheless, the results of both practices are indirect or hidden discrimination.
For example, the requirement of a minimum height can deliver disproportionately disadvantage to women and people of Asian descent, and can be unreasonable requirement in employment in those cases where there is no objective need for such a requirement. In cases where the social problem has deep roots, neither the principle of non-discrimination nor the affirmative action will contribute to the integration of disadvantaged groups (Kellas, 1991). For example, almost complete lack of opportunities for access to education, especially education of good quality can lead to a widespread inability to compete effectively in employment. In this case, the state has to reallocate resources to ensure enforcement and implementation of activities related to remedies, and large-scale events, in order to assure, for example, access to quality education.
From the point of view of supporters of such action, this argument regarding the distribution of wealth in itself is a form of affirmative action as resources will be allocated for the benefit of specific groups to ensure that this group will be actually in the same position. Bhinder v. Canada suggests that the obvious cases of indirect discrimination will be a violation of the International Covenant on Civil and Political Rights.
Provision of Diversity or Proportional Representation of Groups
Recently, American theorists and other scholars in the field of racial issues put forward another theoretical justification for affirmative action, the essence of which is that the existence of racial and ethnic diversity into education and working environment is an essential component of a just society. They actually believe that the racially and ethnically diverse environment are a reflection of the larger society, and contributes to a more representative and comprehensive concept of community. Positive diversity is a more effective approach to ensure fair compensation for racial and ethnic minorities.
The concept of diversity was later criticized in several federal courts. For example, in 1996, the Board of Regents of the University of California voted to ban the use of criteria of race, religion, sex, color, ethnicity or national origin in making decisions about admissions, employment or representation of contracts in the nine public campuses of the University of California. Some scholars claim that the use of racial preferences in higher education is completely ineffective and in most cases leads to a blatant double standard. Another problem is the lack of consistency with regard to the question of what level of diversity is sufficient and how great damage can be caused to other individuals.
Arguments in Favor of the Social Desirability
A clearly stated policy of affirmative action will improve the welfare of many people in different ways. Affirmative action can lead to the better service to disadvantaged groups in the sense that the experts from these groups better know and understand the problems that have adverse effects for these groups. In addition, in cases where members of disadvantaged groups occupy positions that give power and influence, the interests of these groups will be treated and protected more effectively. Just and weighty representation of these groups in different areas, such as employment or education, will promote social and political effectiveness in these areas.
Another argument is that affirmative action can provide disadvantaged communities, role models, through which they will have important incentives and motivation. In addition, greater participation of members of disadvantaged groups in different social systems, destroy vicious stereotypes and prejudices that still have deep roots in many societies (Reynolds, 2001).
At the same time, there are also counter arguments. Many people have argued that affirmative action of this kind threatens quality. In the case of preferential treatment to less-skilled workers, based solely on their group membership, there is a danger of increasing stereotype instead of achieving the opposite effect because, for example, reducing the efficiency in the industry and education, caused by decreased qualification standards. In fact, it can lead to perpetuating principles of thinking, based on racial criteria.
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Prevention of Social Disturbances
We must not forget that affirmative action programs from special programs for disadvantaged areas and preferences based on the gender of the European Union. The programs of regional quotas in India and Nigeria are widely used for the purpose of promoting the interests of the poor members of society, and balancing the internal factors of inequality of economic power and political force in order to ensure the prevention of social unrest.
In the 60s, the United States had to deal with a variety of social unrest, which came as a surprise to many Americans, not just because of the fact that they took place mainly in the cities of the Northern States. Furthermore, they occurred after the adoption of the Civil Rights Act and Voting Rights Act in 1964 and 1965, respectively. These laws finally prohibited holding any distinction based on race, and African American community was given the right to vote, but it was still not enough for many militant black leaders. Both President John F. Kennedy and President Lyndon Johnson understood that race relations in the United States never reached such a dangerous point.
In addition, to developing programs to combat poverty, such as the famous program of President Johnson called the war on poverty there was an attempt to reduce unemployment among the black population through the implementation of large-scale programs of affirmative action, such as the introduction of controversial quotas. According to President Johnson "You can give these people work, and you will have no revolution. If they have a job, they will not throw bombs at your homes and offices. May they be constantly busy, and they will not have time to burn your cars.”
Improving the Efficiency of Social and Economic System
Some economists argue that the elimination of discrimination against disadvantaged groups will serve to improve the efficiency and more equitable social and economic system. The functioning of the labor market can be optimized if the existing shortcomings will be corrected caused by unreasonable prejudice. In the United States of America and Canada, affirmative action is encouraged as good for entrepreneurial activity, and several companies have set as a business objective the achievement of equal opportunity (Skrentny, 1996). At the same time, we should not forget about the fact that such financial incentives as a reduction of taxes, the payment of compensation or government contracts are granted to companies or agencies implementing affirmative action policies. On the other hand, it should be remembered that the sanctions may be imposed on those companies or institutions that do not meet the criteria of this policy.
Means of Creating a Nation
At the time of the emergence of a new state, efforts are being made to create a more egalitarian society and to introduce common citizenship to strengthen its sovereignty. Examples of such efforts are the states that gained their independence after a long period of colonization. These states were divided by ethnic conflict or faced with having multiple backward groups.
While the concept of equality of opportunity implies that the talents and skills are not distributed evenly among people, the concept of equality of results clearly states that the skills and talents are distributed evenly. Men, women, whites and ethnic minorities on average have the same talents and skills. Thus, it is expected that the realization of the ideal of equality of opportunity will lead to equal results in the sense that men, women, whites and ethnic minorities will be represented in the influential and power structures in proportion to their total number in the society. Following this logic, it is concluded that any major discrepancies in the result must inevitably be caused by the existence of a system or structure of discrimination, which is the result of certain practices.
Affirmative action, corresponding to the ideal of equality of results would in this case mean measures of positive preferences, or more specifically the hard affirmative action, such as quotas, reservations, goals, etc. In order to ensure equality of results it is necessary to implement measures that will inevitably lead to proportional representation of groups in such areas as labor, education, and public housing. Affirmative action should be considered in the context of economic, social and cultural rights, which involves the exercise of political actions by the state, aimed at taking concrete measures to improve the social and legal categories in certain areas.
However, is it fair to ask individuals to make sacrifices for the sake of providing compensation to certain members of the target groups? As mentioned above, it is necessary to prevent completely reverse discrimination. Nevertheless, it is obvious that the issue is not only in the fact of being for or against affirmative action for the particular group. Much more important is whether such affirmative action has the support of other groups or these groups are against it. In addition, poverty alleviation programs are no substitute for affirmative action programs. They do not replace the anti-discrimination laws because they do not provide any benefits for groups such as the Chinese or Jewish minorities that are discriminated against in many countries, but in general, are not classified as disadvantaged.
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