Conventional anti-discrimination law has often little impact upon structural and complex forms of discrimination. As a result, states throughout the EU are attempting to use various types of positive action strategies to address many of the inequalities experienced by disadvantaged groups. However, at both EU and national levels, the development of these positive action strategies has been stunted by the existence of two types of legal obstacles. Firstly, a lingering attachment to ‘formal’ equality concepts has resulted in a confusing, incoherent and complex case-law that has a ‘chilling effect’ on the use of positive action. Secondly, there are few effective and substantial legal requirements imposed upon public and private bodies to implement ‘mainstreaming’ and other positive action strategies. These deficiencies in both EC and national equality law mean that the use of positive action strategies has in practice often been half-hearted and lacking in real impact. Without significant shifts in how EC and national legal frameworks conceptualise and regulate positive action measures, the much discussed shift towards a ‘substantive equality’ approach that many commentators have advocated will remain a vague aspiration rather than a concrete reality.
Even after the codification of anti-discrimination legislation in the Equality Act 2010, UK anti-discrimination law is caught in an embedded tension between principle and pragmatism. It is designed to give effect to the principles of equal treatment, non-discrimination and respect for human dignity. However, its scope and substance has often been limited by reference to pragmatic concerns, such as the need to minimize regulatory burdens and to maximize business efficiency, which sit uncomfortably with these principled underpinnings. This tension between principle and pragmatism tends to play out in particular with regard to debates about what exceptions should be carved out of the general prohibition on discrimination set out in the UK legislation. UK legislatures and courts have often been quick to adopt a ‘pragmatic orientation’ in this context. However, this approach can be difficult to reconcile with the more purposive, rights-protective, principled orientation of the European Union law and, to a lesser extent, the requirements of the European Convention on Human Rights.
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