Positiivinen erityiskohtelu: tehokas keino kohti tosiasiallista yhdenvertaisuutta vai tyhjiä sanoja vain?
Avainsanat:
yhdenvertaisuus, syrjintädirektiivi, positiivinen erityiskohtelu, kiintiö, yhdenvertaisuus- ja tasa-arvolautakuntaAbstrakti
Positive Action: an efficient method to promote de facto equality or mere empty words?
This article deals with the Non-Discrimination Act (1325/2014) which includes a provision on positive action (Section 9). The section is written in the same way as the similar article in the CEDAW Convention: “Proportionate different treatment that aims to promote de facto equality, or to prevent or remove the disadvantages attributable to discrimination, does not constitute discrimination”.
The author first looks into the history and background of the positive action. It is known also in the Finnish Constitution, many human rights conventions and EU law. Positive action comes from the USA but there it is called “reverse discrimination” especially in the connection of racial discrimination.
The original function of positive action (reverse discrimination) was to remedy past discrimination. It can be used also to promote de facto equality without the idea of compensation. Especially elderly people may be eligible for some social benefits that do not belong to younger persons.
Next, the author looks into the different ways to use positive action. Quotas are the most usual way. In Finland, quotas are used to help minority-language speakers in universities (Swedish-speaking students at the University of Helsinki and Sámi-speaking students at the University of Lapland). Such quotas are justified by the need for lawyers and physicians who can also help Swedish- or Sámi-speaking clients and patients.
At the end, the author considers the practice of positive action. Has it been effective in promoting de facto equality? Could it be used more often than it is used today? The law provides ample opportunities. In Finland, there are many groups that are in need of help: e.g., the elderly, Roma, poor immigrants, asylum seekers. It is a political decision to use positive action to help them.
