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2005 >> Sex Equality and "Positive Discrimination" : Comparative Legal Analysis >> SUMMARIES >> Professor Danièle LOCHAK
" Sex Equality and "Positive Discrimination" : Comparative Legal Analysis "
(Co-organized by the Gender Law and Policy Center and the Society of Comparative Legislation)
SUMMARIES
Reflections on the notion of discrimination in European Union and French Law
Professor Danièle LOCHAK
(University of Paris X, Nanterre)
Even if etymologically the word "discrimination" only refers to the action of distinguishing different objects, legal systems have generally integrated its negative connotation. Without any doubt, discrimination is definitely prohibited in law. Depending on various legal instruments, this notion has not always the same meaning. According to an extensive conception, "discrimination" refers to a difference of treatment which is not justified; according to a more restrictive approach, "discrimination" strictly refers to the unfavorable treatment reserved to particularly vulnerable persons on the basis of their belonging to a group defined following a particular criteria - sex, for example. Under the influence of European law, and in the context of various socio-political controversies, other notions appeared, in particular "indirect discrimination" - identified by the European Court of Justice, especially in cases of sexual discriminations - and also the notion of "discrimination positive".
With the so-called "discrimination positive", we reach another level of conceptualization: while direct as well as indirect discriminations are strictly prohibited due to the fact that they run against equality, "discrimination positive" aims at restauring equality de facto, independently of any consideration relating to formal equality. Radically speaking, "discrimination positive" could eventually mean "reverse discrimination".
"Discrimination positive" refers to preferential measures adopted in the context of a volontarist policy aimed at reducing de facto inequalities. Such measures aim at giving a preference to a category or a group of persons in order to compensate the disadvantages they face due to their situation. This having been said, the so-called "discrimination positive" has no stabilized definition. In France, the use of such expression remains controversial. But if many are suspicious, and if those measures of "discrimination positive" are in practice very difficult to implement, we are generally reluctant to definitely reject them: in fact, such measures may be - ultimately - perceived as being necessary to fight against the various forms of what is called "systemic discrimination".
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