2005 >> International Symposium in Paris

On "<Discrimination Positive> : An Analysis from the French Law Perspective", by Professor Gwénaële CALVÈS
Tohoku University, July 28, 2005

As already announced on this web site, the Gender Law and Policy Center organizes, with the French Society of Comparative Legislation, a conference on the subject of sex equality and positive discrimination which will take place in Paris next September. For all those who can not afford to attend this conference, the Gender law and Policy Center invited Professor Gwénaële CALVÈS at Tohoku University. She will participate to the conference in Paris, to make a presentation on the subject of the «discrimination positive», as called in France.

Professor CALVÈS teaches Public Law at Cergy-Pontoise University. Co-director of the «anti-discriminatory policies» research group at the Center for International Studies and Research (Sciences Po - CNRS), she also teaches at Düsseldorf. Former student of the École Normale Supérieure (from 1987 to 1991), she has worked on numerous aspects of law in the United States, such as the problems linked with affirmative action, trying to determine the manner in which these and similar proposals would work in France (see the bibliography below). Her doctorate, obtained at Paris II University in 1998 deals with the American jurisprudential approach of affirmative action.

During her presentation at Tohoku University last July, translated by Professor Hajime YAMAMOTO, Professor CALVÈS insisted on the fact that the passionate debate occurring in France about the so-called "discrimination positive" remains quite confusing.

Photo 1 - Professor Gwénaële CALVÈS, assisted for the translation in Japanese by Professor Hajime YAMAMOTO, Sendai, July 28, 2005

Some elements of a quite confusing debate

Trying to make clear the terms of the controversy, Professor CALVÈS underlined that the so-called "discrimination positive" refers to several parallel discussions:

• First, the debate on "discrimination positive" also concerns the discussion about the French systems of social insurance as well as "service public". In this sense, the so-called "discrimination positive" is understood as being strongly connected with the notion of equity, and consists in "giving more to those who have less".
• Second, the problematic of "discrimination positive" concerns also the discussion about the various racist and sexist discriminations. In this sense, "discrimination positive" has to be understood as consisting in "imposing those who are excluded". In other words, it plays here as a kind of counter-discrimination (a "contre-discrimination", in French).
• And last but not least, the discussion concerning "discrimination positive" is linked to the discussion on the French model of national construction and on republican civic principles. From this perspective, "discrimination positive" is identified to a policy of diversity. But from now on, this approach remains full of uncertainty.

As emphasized by Professor CALVÈS, in all countries practicing positive action, but particularly in France, it is absolutely necessary to make clear at least three points before elaborating any positive action policy : the beneficiaries ; the field of application, or the scope ; and the related costs.

Some questions about the French "discrimination positive"

The following discussion allowed the participants to focus on some particular aspects of the problem.

Answering first to a question concerning terminology, Professor CALVÈS presented in details the genealogy of the specific expression "discrimination positive", as well as the reasons why such an expression has been finally chosen by several researchers. At the end of 90's, nobody among French researchers took the risk to speak about something like "discrimination positive". Such an expression was initially limited to the political (and also polemical) discourse, not the scientific one. It was mainly employed in a pejorative sense, to refer to a reverse discrimination ("discrimination à rebours", in French). However, at present time, Professor CALVÈS not only thinks that it is possible to keep the expression but, entitling so one of her book, she also suggests using it in an academic way. In fact, the concept of "discrimination positive" is a transversal one, valid for all countries, and has the advantage to explicitly refer to discriminatory policies, which are by preferential definition and based on some criteria that is not legitimate (such as sex or handicap). As Professor CALVÈS declares: "Why should we choose to use euphemisms like "action positive", or "politiques de diversité", which are misleading and which finally make us forget the real problem, i.e. the fact that we are going to prefer somebody - of course with some good reasons".

Photo 2 - Professor Gwénaële CALVÈS, Sendai, July 28, 2005

Professor CALVÈS admits that such an expression remains very controversial in France, including among researchers. In fact, many people think that the expression of "discrimination positive" is contradictory. For Professor CALVÈS, the resistance expressed by many researchers concerning "discrimination positive" in general, and parity law in particular, can be explained on the basis of at least three different factors:

• The reluctance to use such an expression can be first understood from the individual preferences and ideological choices perspective. For many conservative French publicists, the fact that parity law has been supported by both left wing and feminist movements is subjectively enough to condemn any further progressive tentative.
• Such a resistance could also be explained by the increasingly important role played in France by the Conseil Constitutionnel. It is in fact well known that the Conseil Constitutionnel is "radically against" any "discrimination positive" and remains strongly opposed to any related proposal. In France, it seems that the influence of the Conseil Constitutionnel, its aura, is such that it does not let space for any oppositional doctrine.
• Finally, and as underlined by Professor CALVÈS, "fundamentally, it is true that parity law can not reasonably be supported ; from a theoretical point of view, it can not be justified in any way: even if, de facto, it could be identified as necessary, it finally remains contrary to all our republican principles". In this sense, those who are firmly opposed to parity law strongly advocate for the preservation of republican principles. On this particular question, Professor CALVÈS noted that the revision of the Constitution in 1999, paving the way for the adoption of parity law, finally did not change the whole constitutional architecture and the French theory of representation - despite such a revision - remains perfectly untouched. In other words, the so-called parity law is not at all revolutionary, it is just a small parenthesis opened in an unchanged Constitution. And safe the republican principles...

Those first observations allowed Professor Miyoko TSUJIMURA to emphasize the fact that, despite the polemical discussion concerning "discrimination positive" in France, French people do not hesitate to use the expression, including at a governmental level, often in a non-pejorative sense. By contrast, Japanese people - particularly the Government - are extremely cautious, and before all do not want to take the risk of any controversy. As a result, they hesitate even to use the more consensual expression of "positive action".

Photo 3 - Professor Miyoko TSUJIMURA, Sendai, July 28, 2005

Coming back to the concept itself, Professor CALVÈS insisted on the necessity to make a distinction between the French "discrimination positive" and the affirmative action as existing in the United States. If, in France, "discrimination positive" can not be conceptualized without referring to its social justice dimension, the American affirmative action - from a cultural, ideological, and political point of view - is by definition linked to the "white guilt", and essentially designed to promote " black elites".

In her answer to a second question concerning the previsible evolution of "discrimination positive", particularly in the field of public policies concerning employment, and on the possible advent of a "post-discrimination positive" era, Professor CALVÈS perfectly agreed. In fact, "discrimination positive" policies are quite radical, and not so subtle. Thus, it may well appear necessary to elaborate some more refined policies. The development of soft instruments like those linked to the so-called "corporate social responsibility" may be an example. It could be also possible to refer to the development of the civil responsibility in French Law. But, even more than these examples, Professor CALVÈS evoked the Canadian notion of reasonable accommodation, recently introduced in France, and applicable to handicapped persons as well as to women. From the incentive perspective of reasonable accommodation, it is not necessary any more to impose any quota, of women for example. On the contrary, companies have to make their posts "accessible" and adapted to the specificity of the employees, which could be very useful for active women. With reasonable accommodation, and as underlined by Professor CALVÈS, we subscribe to a certain form of legal logic "that accompanies, that stimulates, that is propulsive, and that gives priority to the judiciary".

Answering to a last question, Professor CALVÈS made clear the subtle distinction between the two techniques of the "poste réservé" (reserved post) and the quota. The technique of "poste réservé" implies to reserve a special kind of posts exclusively to certain persons. By contrast, the quota technique, more flexible, imposes only to recruit a certain number of persons, without considering their affectation.

(*This article is written by Dr. Isabelle GIRAUDOU, COE Fellow of GELAPOC)

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