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

• Author: Durbáková, Vanda
• Pages: 70-72

70

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

a) Scope for positive action measures

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

disability and age. Positive action in respect of religion or belief and sexual orientation is

not permitted in national law.

The ability to adopt positive action measures (known as ‘temporary equalising measur es’)

is provided for by the Anti-Discrimination Act.

Section 8a of the Anti-discrimination Act299 stipulates that the

‘adoption of temporary equalising measures by public administration bodies or other

legal entities that are aimed at removing disadvantages following from the ground of

racial or ethnic origin, affiliation with a national minority or an ethnic group, gender

or sex, age or disability, the aim of which is to guarantee equality of opportunities in

practiceĽ is not deemed to be discrimination.’300

The Anti-discrimination Act lists the possible temporary equalising measures in a non-

exhaustive list, including measures:

a) ‘aimed at removing social or economic disadvantage that disproportionall y affects

representatives of disadvantaged groups;

b) consisting of supporting the interests of representatives of the disadvantaged groups

in employment, education, culture, healthcare and services;

c) aimed at generating equality in access to employment, education, healthcare and

housing, mainly through targeted training programmes for representatives of the

disadvantaged groups or through the dissemination of information about these

programmes or through opportunities to apply for jobs or places in the education

system.’301

The temporary equalising measures can only be adopted if there is ‘provable inequality’Ľ if

their aim is reducing or removing this inequality and if they are appropriate and necessary

to achieve the set aim.302 The temporary equalising measures can only be adopted in the

fields falling under the material scope of the Anti-discrimination Act303 (employment and

occupation, social security and social advantages, healthcare, education and access to and

provision of goods and services including housing).304 They can only be in force while the

inequality that has led to their adoption exists. Otherwise the bodies that have adopted

such measures are obliged to end them.305

The ability to adopt positive action measures is further provided for in specific legal

provisions in the areas of employment306 and education.307

Bodies that adopt the measures are obliged to monitor and evaluate them continuously

and to publish information about them with a view to reappraising their further duration,

and must provide the relevant information to the Slovak National Centre for Human Rights

299 This provision gained its current shape after an amendment of the Anti-discrimination Act by Act No.

32/2013 of 5 February 2013, effective from 1 April 2013.

300 Anti-discrimination Act, 365/2004, Section 8a(1).

301 Anti-discrimination Act, 365/2004, Section 8a(1).

302 Anti-discrimination Act, 365/2004, Section 8a(2).

303 Anti-discrimination Act, 365/2004, Section 8a(3).

304 Anti-discrimination Act, 365/2004, Sections 3(1), 6 and 5.

305 Anti-discrimination Act, 365/2004, Section 8a(3).

306 Labour Code No. 311/2001, Section 66, Act No. 5/2004 on Employment Services, Sections 63–65.

307 Act No. 245/2008 on Education (Schools Act), Sections 19(4) and 60(4).