Positive action (article 5 Directive 2000/43, article 7 Directive 2000/78)

• Author: Lorenzo Cachón
• Pages: 61-63

61

5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

a) Scope for positive action measures

In Spain, positive action is permitted in national law in respect of racial or ethnic origin,

religion or belief, disability, age or sexual orientation.

The principle of ‘positive action’ is rooted in the Spanish Con stitution: Article 14 formally

recognises equality before the law without discrimination on any of the grounds listed in

the Constitution, while Article 9(2) requires the public authorities to promote ‘the

conditions to ensure that the freedom and equality of individuals and of the groups that

they form are real and effective’. The positive action required by Article 9(2) should not be

regarded only as a ‘legitimate exception’, but as a guarant ee that the principle of equality

is to be made effective. In this respect, the Constitutional Court has repeatedly h eld that

affirmative action is not to b e seen as discriminatory. Rather, the court has in terpreted

that actions by public authorities to remedy the employment disadvantage of certain

socially marginalised groups are required by a properly understood commitment to

equality.

Positive action has been present in labour, educational and other provisions since the

passing of the Spanish Constitution in 1978 (Cachón, 2004).

In relation to employment, the Workers’ Statute (Article 17(2)) stipulat es that the

Parliament may specify ‘exclusions, reservations and preference’ in employment for certain

groups who are at a disadvantage in the labour market. Article 17(3) states that the

Government ‘may specify measures of reservation, duration or preference in employment’.

In the educational field, the Organic Law on Education of 2006 stipulates: ‘In order to

render effective the principle of equality in the exercise of the right to education, the

authorities shall develop compensatory actions aimed at persons, groups an d territorial

regions with unfavourable situations, and provide the necessary economic resources’

(Article 80).

In Law 62/2003, which transpo ses the directives, Articles 30, 35 and 42 regulate positive

action. Article 35 d eals with discrimination in employment and in relation to occupation,

and provides that, ‘with a view to ensuring full equality on the grounds of racial or ethnic

origin, religion or belief, disability, age or sexual orientation, the principle of equality shall

not prevent maintaining or adopting specific measures in favour of certain groups in order

to prevent or compensate for disadvantages that they may encounter’. Article 42 provides

that ‘collective agreements may include measures intended to fight agai nst every form of

employment discrimination, to encourage equality of opportunity and to prevent

harassment on the gr ounds of racial or ethnic origin, religion or belief, disability, age or

sexual orientation’.

Article 30 of the same law, referring to the various spheres of employment included in

Directive 2000/43 on the gr ounds of racial or ethnic origin, states: ‘In order to guarantee

full equality irrespective of racial or ethnic origin, the principle of equal treatment shall not

prevent the maintenance or adoption of special measures benefiting certain groups,

designed to prevent or to offset any disadvan tages that they suffer as a result of their

racial or ethnic origin’.

In the field of disability, there has been a wide range of positive measures since the

implementation, in 1982, of Law 13/1982 on the Social Integration of Persons with

Disabilities (now replaced by Law RLD 1/2013). The General Law on the Rights of Persons

with Disabilities an d their Social Inclusion (RLD 1/2013) includes such positive action

measures in Articles 67 and 68. The aim of positive action is to grant the necessary