ABSTRACT

Affirmative action law is a form of social correction, bolstered by legal precedents, that aims to provide equal opportunity and prevent discrimination in education and employment. The aim of this research is to find how the four dimensions of substantive equality law can alter and impact affirmative action. By drawing on the familiarity of these four dimensions: to redress disadvantage; address stigma, stereotyping, prejudice, and violence; enhance voice and participation; and accommodate difference and achieve structural change; we study how it can help remedy the effects of long-standing discrimination against groups of people who are disadvantaged, demeaned, excluded, or ignored.

INTRODUCTION

Across the globe, the principle of equality becomes an ever-present issue, especially when viewed from a retrospective and corrective lens. Many view affirmative action as a means to an end of a more “equitable” and just society, one which has corrected the circumstantial and societal pitfalls it has levied against its inhabitants. For a society to go about correcting this however, they must first assess the society as a whole, and identify the primary dimensions of their correction, bringing a four-tiered approach to the surface as presented by Fredman – one with a focus on addressing disadvantage, addressing stigma/stereotyping/prejudice/violence, enhancing voice and participation and achieving a structural change. Furthermore, a nation state, such as the United States, can reap much knowledge from the participation in this undertaking from its foreign compatriots, with systems such as the United Kingdom, Canada, and many other international institutions providing a plethora of exemplar influence for the U.S. to model, many of which are derived from the previously stated four-dimensional approach. In this research paper we will approach each one of the four dimensions in the following sections in order to then form a conclusion.

How does the first dimension (Redressing disadvantage) affect affirmative action?

For affirmative action to have any element of social effectiveness, it must first be capable of enacting its primary objective through the first dimension of the four-dimensional approach, that being the redress of disadvantage. The term “redress”, as defined by the Oxford dictionary, concerns “remedy or compensation for a wrong or grievance.”, a definition which in itself effectively portrays the goals and objectives of affirmative action.

For one, the language of “remedy” applies deep set connotations of the act of setting something right and, in the case of affirmative action, that something is the deeply seeded societal burdens and disadvantages placed upon certain characteristics of certain individuals. These disadvantages are seen throughout all sects of society, and apply and impact individuals in distinctly unique and subtle ways. Certain demographics in the United States, as a consequence of long-running discrimination, are subject to significant socio-economic disadvantages as opportunities can vary between demographics, such as Black households in the United States bringing in a 35% less income on average as opposed to white households, a yearly income gap of $25,965 on average per a 2021 analysis. 

These almost inevitable inequalities have historically led to universities and workplaces being dominated by a privileged hegemony of those free of disadvantaged characteristics (Race, Sexuality, Gender etc.), resulting in a societal segregation between the privileged and the encumbered as a result of a lack of quality-critical decision making. Affirmative actions seek to remedy this disadvantage, by affording opportunities to those who would typically be disenfranchised from them, with the U.S. department of labour defining the objective of such policies as “to ensure equal employment opportunities for applicants and employees”. 

The compensation aspect of this dimension applies in the utilisation of affirmative action, and is by far its most contested component. Certain universities’ approach to the correction of long-standing internal hegemony, such as Harvard, has been an outspoken willingness to take race into consideration in applications since the 1960s, when affirmative action policies were encouraged on a national scale by US President John F. Kennedy’s Executive Order 10925. Kennedy directed government contractors to “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, colour, or national origin.”

In the 1970s, this notion was taken to court in regards to universities in the north of the United States, who had begun to implement “racial quotas” in admissions, setting aside a specific quantity of seats for students of certain backgrounds and demographics, a heavily contested practice which eventually was taken all the way to the Supreme Court of California in the case of Regents of the University of California v. Bakke, in which the issue of racial quotas of “qualified minorities” was brought into the limelight, and eventually ruled illegal as a violation of the Civil Rights Act of 1964, in addition to the equal protection clause of the fourteenth amendment, concerning equal protection under law. 

However, the judges were split down the middle with four of the eight holding that the use of race was permissible as “admissions criteria”, and by consequence, managed to minimise the impact of the case by establishing set case-precedent that such criteria was allowed to be utilised in university admissions, whilst outlawing the use of extreme redress policy in the form of racial quotas. Through such an establishment of the protection of affirmative action, the judges were able to set constitutional, legal standards for the parameters of a societal redress of disadvantage, enshrining a gold-standard into law regarding how to go about such redress for years to come. 

This standard of redress was yet again challenged in 2013, in which SFFA, a student organisation representing Asian-Americans, challenged the nature of the affirmative action policies of Harvard by filing a lawsuit against them, alleging their admissions policy utilised similar practices to that of the University of California in the 1970’s, using racial quotas to keep the Asian population of the university limited. Practices which served to prove they were in violation of Title VI of the Civil Rights Act of 1964. Such an accusation of regression was battled all the way to the Supreme Court, which ultimately ruled that, while race cannot be a defining characteristic in regards to undergraduate admissions and achieving a diverse student population, race still, and should and, can be taken into account and context when processing admissions.

The ruling, while minimal in its impact in comparison to the potential it had to uproot equality law, has brought the means by which universities redress of disadvantage back into the spotlight. While candidates can still have diverse characteristics taken into account in admissions, said candidates need to place these characteristics into context, potentially encouraging students to overshare personal traumas in order to get an edge in admissions. This has set a worrying precedent of regression in the efficiency of the ability to enact redress policy, whilst simultaneously hardening it, at the expense of already disadvantaged applicants.

How does stigma, stereotyping, prejudice, and violence (second dimension) affect affirmative action?

Affirmative action is designed to facilitate workplace success for members of targeted groups; however, it may have the opposite effect and stigmatise affirmative action plan targets and, in turn, decrease their performance outcomes. Drawing from the stereotype model, for example when an affirmative action plan to facilitate workplace success for members of the groups they target, such as women and ethnic minorities. We can see that the negative effect of affirmative action plans on others’ evaluations of targets’ performance is driven by perceptions of incompetence and low warmth (The Stigma of Affirmative Action 2016).

One of the primary sources of stereotyping is the assumption that women should take on primary responsibility for care work. It undervalues caring work on the assumption that such work can in principle be performed unpaid in the home. The stereotypes driving women to take responsibility for caring and domestic work in the home also create obstacles to women’s full participation in work. Women are additionally sometimes stereotyped sexually, leading to sexual harassment and violence, in the home, at work or on the streets. These stereotypes are a fundamental negation of women’s right to dignity and recognition. Substantive equality therefore requires the proper valuing of care work (A better future for women at work 2014).

Addressing stigma, stereotyping, prejudice, and violence does not, however, reach equality. Instead, it requires proper recognition of the social and personal value of care, and recognition of each individual’s dignity and value. It also shows that international law can have a significant role in making visible the invisible. Instead of being regarded as ‘part of the family’ or as a ‘servant’, the Convention requires domestic workers to be recognised as workers and has a significant impact at national level (How companies can minimise the stigma of affirmative action 2019).

Stigma, stereotyping, humiliation, and violence on grounds of gender, race, disability, sexual orientation, or other status can be experienced regardless of relative disadvantage. Equality attaches to all individuals, not because of their merit, or their rationality, or their citizenship or membership of any particular group, but because of their humanity (Substantive equality 2016).

This dimension has similarities to “dignity” but attempts to avoid some of its pitfalls. Recognition refers to the crucial importance of inter-personal affirmation to our sense of who we are. Identity is shaped through the ways in which others recognise us, and we recognise others. Misrecognition or recognition inequalities arise through denigration, humiliation, and failure to value individuals. To that extent recognition resonates with the dignity discourse. Substantive equality is therefore capable of addressing race and gender as social constructs (The Stigma of Affirmative Action 2013).

The pivotal importance of this dimension can be seen in Brown v. Board of Education. The US Supreme Court posed the question: “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ‘tangible’ factors may be equal, deprive the children of the minority group of equal educational opportunities?” The answer was unequivocally in the affirmative. And the reason given was resonant of recognition issues: “To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” It could also cause racial trauma in young adults to relive the event by being forced to talk about it. The recognition principle also addresses racist, sexist, homophobic and other violence against protected groups. Such violence is distinctive in its negation of the very identity of the victim (Deconstructing the myth of minority inferiority 2019).

If we were to address each part of this dimension individually the following could be stated:

• Stigma: When affirmative action is implemented, individuals who benefit from them might experience stigma. Others may perceive them as having received special treatment due to their group membership. This stigma can affect self-esteem, confidence, and overall performance.
• Stereotyping: Stereotypes can arise when affirmative action is in place. People may assume that individuals from underrepresented groups were hired or promoted solely because of their identity, rather than their qualifications. This stereotype can undermine their achievements and create a negative environment.
• Prejudice: Prejudice refers to preconceived opinions or attitudes based on group membership. Affirmative action can inadvertently reinforce existing prejudices. For example, some may believe that women or minorities are less competent because they “need” affirmative action to succeed.
• Violence: While not always directly related, violence can emerge in contexts where affirmative action is debatable. Extreme views surrounding affirmative action may lead to hostility, discrimination, or even physical harm. It contributes to discrimination which is essentially what we are trying to put an end to. It’s essential to address these issues to create a safer workplace.

Affirmative action policies in the workforce have increased diversity, often at the cost of stigmatising the very workers the policies are designed to help.

Affirmative action, by definition, singles out disadvantaged or underperforming groups and therefore may unintentionally remind its beneficiaries of relevant negative stereotypes. We therefore hypothesise that the introduction of an affirmative action plan can produce a stereotype threat; stereotype threats’ effects typically occur when a task is complex, and a negative stereotype is relevant to the task.

Therefore, in order to avoid the construction of stereotypes it is argued that affirmative actions should be recognising and addressing stigma, stereotyping, prejudice, and potential violence which are essential for creating a fair and inclusive environment.

How does the third dimension (enhancing voice and dimension) affect affirmative action?

The challenges marginalised groups face are complex and beyond simply having equal rights under the law. Even though there are laws in place to ensure everyone has equal treatment, certain groups such as women, people with disabilities, and ethnic minorities, continue to face very significant disadvantages. To achieve true equality, it is crucial to move beyond a narrow and legalistic definition of equality. The problems marginalised groups face are not just legal issues but also involve societal attitudes, institutional practices, and the need for broader systemic changes to create a truly equal and inclusive society.

There are a number of ways to enhance the voice and participation of marginalised groups, who frequently suffer from social exclusion and political neglect. One strategy is to emphasise the provision of judicial review through the right to equality. This can involve creating avenues for increased political participation, such as implementing quotas in Parliament or other clear-cut policies to guarantee equitable representation.

The Supreme Court of Canada and the US Supreme Court are contrasted to highlight the differences in how they have approached the issue by enhancing voice and participation. The US Supreme Court focuses on addressing the exclusion of “discrete and insular minorities” by tackling their exclusion from the political process, using judicial intervention to safeguard their rights. On the other hand, the Supreme Court of Canada extends the equality guarantee to non-citizens, recognising that non-citizens are vulnerable to having their rights disregarded due to a lack of political voice.

In practical terms, implementing measures to enhance voice and participation may require legislative and policy changes. Affirmative action programs, quotas, and other steps can be taken to address the political voice and social exclusion experienced by marginalised groups. Creating platforms for these groups to actively participate in decision-making processes at various levels of society is also crucial.

These policies strive to mitigate the social exclusion and lack of political voice that certain populations face. This involves developing opportunities for increased political and social participation, possibly through explicit measures to establish equity and redress past discrimination.

Enhancing voice and participation can have a substantial influence on affirmative action programmes by ensuring that marginalised groups have equal opportunities for political and social participation. This can involve legislative and policy changes to address the lack of political representation and social exclusion experienced by certain marginalised groups. As seen in the situations of Canada and the UK, affirmative action policies may need to be carefully crafted to prevent stigmatising the recipients and to address the obstructive role that dignity plays. To create opportunities for increased political involvement, the participatory feature of substantive equality addresses both social and political engagement. Additionally, it could include creating platforms where marginalised populations are able to speak up and actively engage in societal decision-making at different levels.

The participative dimension of substantive equality is crucial in addressing the lack of political voice and social exclusion experienced by certain groups. It seeks to guarantee that everyone is able to participate in society on an equal basis, potentially by taking specific actions to achieve parity and make up for past discrimination. Affirmative action programmes that enhance voice and participation can assist in the development of a more equitable and welcoming society by giving marginalised groups the chance to actively participate in social and political processes.

On the basis of this, John Hart Ely established the “representation-reinforcement” theory of judicial review, giving special attention to the interests of marginalised communities that elected officials would often neglect. Similar to this, the Supreme Court of Canada expanded the equality guarantee to non-citizens in Andrews v. Law Society, acknowledging their vulnerability as a result of their lack of political clout and the potential violation of their rights to equal concern and respect. The aforementioned approaches tackle excluded groups’ lack of political voice through the use of judicial review.

How does the fourth dimension (achieve structural change) affect affirmative action?

Within society, we often witness how the concept of detriment affects the socially disadvantaged and how that very detriment and oppression affects the lives of specific individuals. Poverty, poor health, unemployment, discrimination, substance abuse, crime, housing, and psychological distresses are just a few examples. The oppression and disadvantages people experience possess a layered complexity. Sometimes, they derive from personal circumstances but other times it can stem from societal factors.

The disadvantage that comes as a direct result of societal factors is often referred to as structural disadvantage. Examples of this include the inability to access certain services, and the struggle to overcome institutional barriers such as specific policies, legislation, and processes. A long-standing history of segregation and the recent overturning of Roe vs Wade are just a couple prime examples of this. Societal discrimination on the basis of factors like ethnicity, gender, age, religion, disability and sexuality further exacerbate this structural disadvantage.

An important aspect when identifying structural disadvantage is to make the connections between personal, political, structural and public issues. This idea is formed from the notion that an individual’s problem isn’t just their own problem. For instance, if a person is unable to access childcare, then it may be viewed as the family’s problem. However, this issue has a significant impact on society. If said child doesn’t have the proper care needed then the future generations of that society are in return being neglected causing a detrimental effect on the nation. The parent staying home to look after their child results in a withdrawal from the workforce, which could potentially affect the economy’s need for skills and labour. Issues with children’s health could also put a strain on the healthcare system. This example can be extended to demonstrate that any problem occurring to be private is in fact also a public concern, and has an impact on society. Consequently, the lack of childcare becomes a structural issue resulting in disadvantage. 

Let’s explore another example of disadvantage, this time through a jurisdictional lens. Australia is a multicultural country, boasting a rich diversity of cultures and people. Culture plays a significant role in shaping our lives by providing meaning and understanding. While some individuals from these diverse, cultural and linguistic origins have been living in Australia for generations, others have arrived rather recently as migrants or refugees. Unfortunately, some people from these groups have experienced forms of disadvantage because of aspects of their identity. 

Social capital and systematic power entrenched within social structures, institutions, and systems, including the legal or even labour market, help mould the way in which minorities are treated. Social exclusion occurs based on the socially constructed comprehension of factors such as a person’s race, gender, religion, and sexuality. The definition of an immigrant is defined on a contingent of certain factors; it also determines whether or not people will be included or excluded from civil society. 

Structural change is one of the four dimensions in substantive equality, it refers to the alteration and reformation of fundamental systems, institutions or frameworks within our society. It aims for the goal to transform these underlying structures that uphold and perpetuate disparity, discrimination or marginalisation. This change might include the revising of certain policies, laws, or even social norms to mould our society to be more equitable. However, like any facet of the four-dimensional approach, structural change also raises its own set of issues. Addressing the responsibility of costs, for instance, is an area of challenge when addressing structural change. It raises the question of who should be responsible for implementing these changes to address certain inequalities. Customarily within legal contexts compensation for damage is offered by the person at fault, with the people responsible for causing this damage forming the compensators and giving reparations to the victim. But when dealing with things like structural barriers that are from the direct result of systemic issues rather than the efforts of a specific individual finding and singling out the “wrong door” and framing them “at fault” becomes a challenge.

Other challenges arise with how we can properly achieve structural change in a way that holds true to its ideologies, beliefs and guidelines. When accommodating to difference does that also mean a requirement of complete overhaul from prior structures also goes along with this accommodation? The “exceptionalist” approach lambasted by Brodsky and Day is seen as problematic because it fails to challenge the current power imbalances or dominate social structures like different branches of bigotry. Instead, it allows individuals who deem themselves as “normal” to uphold institutions and positions of power in their image, while only accommodating others when they oppose this construction ensuing in assimilation rather than true equality. The dichotomy between exceptionalism and structural change might not be flexible enough. When delving into this case by case and looking at things like gender discrimination, changing the norm might not always be necessary.

On the contrary, the opposing equality-based ideology to structural change is formal equality. With formal equality, or the anti-classification approach, social constructs like gender, race, ethnicity, or other forms of status are deemed irrelevant. This perspective opposes the predilection to abstract from an individual’s identity and treat them entirely on merit. The concepts of formal equality are based on impartial treatment and uniform treatment. It puts forth the idea that laws, regulations and societal norms should be distributed equally with no special treatment regardless of your background or identity.

Both of these ideological concepts offer insight into their application within discussions concerning certain political policies, specifically policies like affirmative action. This policy focuses on the demographics of people who have been systematically and historically disadvantaged. When speaking in regards to affirmative action and whether the basis of this recently uninstalled system is fair, the two sides of the argument often use the structural change and formal equality concepts to argue their side. Affirmative action originally used the structural change guidelines to uphold their system and help disadvantaged groups make their way through predominantly non-diverse environments. While it was recently uninstalled for the talking points and arguments that lay in the formal equality concept, ruling in favour of the idea of being race blind when looking at applications. 

Both concepts have deep roots in political history and in turn make valid points. They serve as the fundamental building blocks for things like ethics, philosophy, and guidelines for different areas of legislation within western jurisdictions and other regions of the world as well.

Conclusion

The four dimensions of equality law have played a significant role in the establishment of Affirmative Action policies by establishing constitutional standards, combating negative stereotypes, promoting inclusivity, addressing social exclusion, and driving structural change to eliminate disparities and discrimination:

The first dimension of equality law, which focused on redressing disadvantage, has played a crucial role in shaping the Affirmative Action policy, through court cases, by establishing constitutional standards and raising concerns about the potential regression in the efficiency of redress policies and the unintended consequences of considering diverse characteristics in admissions.

The second dimension of equality law, which addressed stigma, stereotyping, prejudice, and violence, has highlighted the importance of combating negative stereotypes and promoted recognition of each individual’s dignity and the rights of individuals in achieving substantive equality. It has also supported the establishment of Affirmative Action policies by recognising the need to counteract these harmful practices and create a more inclusive and equitable society.

The third dimension of equality law has addressed the lack of political voice and social exclusion experienced by certain groups by giving marginalised groups the opportunity to actively participate in social and political processes by ensuring their participation on an equal basis by taking specific actions to achieve parity and rectify past discrimination.

The fourth dimension of equality law has achieved structural change by aiming to reform fundamental systems and frameworks in society in order to eliminate disparities and discrimination by altering policies and laws to establish affirmative action policies and seek to achieve a more equitable society. 

Overall, we conclude that the four aspects of equality law have had a significant impact on the development of affirmative action policies and they have contributed to the advancement of a fairer and more equitable society.

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