An International Comparison of the Racial Discrimination Act 1975 (2008) Chapter 5: Special Measures
An International Comparison of the Racial Discrimination Act 1975
Chapter 5: Special Measures
In many jurisdictions, one of the most significant exceptions to the operation of race discrimination law is the exception for ‘special measures’. These are measures which confer an advantage or benefit on people of a particular race or ethnicity in order to counteract the economic and social disadvantages suffered by that racial group as a result of historic discrimination. While they involve discrimination between individuals on the basis of race, in the sense of treating people differently depending on their race or ethnic background, the ultimate aim of these kinds of measures is to ensure that people of all races have equal opportunities to develop their human potential and enjoy equal access to human rights and freedoms.
The concept of ‘special measures’ is expressed in the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), which declares that:
“Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintaining of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.”
In addition to permitting such ‘special measures’, the Convention also places a positive obligation on states to take such steps where they are required in order to “ensure the adequate development and protection of certain racial groups... for the purpose of guaranteeing them full and equal enjoyment of human rights and fundamental freedoms.”
In Australia, the Racial Discrimination Act 1975 (Cth) directly incorporates the Convention definition of ‘special measures’. These measures, as defined by the Convention, are exempted from the definition of unlawful discrimination. This exception does not apply, however, to laws which provide for the management of Aboriginal property without consent, which the Act specifically states cannot be interpreted as ‘special measures’ for the advancement of the Aboriginal people.
Similar exceptions for special measures are found in the Canadian jurisdiction. Clause fifteen of the Canadian Charter of Rights and Freedoms, which makes laws that discriminate on the basis of race unconstitutional, specifically states that (the clause) “does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” A similar exception in the Canadian Human Rights Act makes it lawful for “a person to adopt or carry out a special program, plan or arrangement designed to prevent disadvantages that are likely to be suffered by, or to eliminate or reduce disadvantages that are suffered by, any group of individuals when those disadvantages would be based on or related to the prohibited grounds of discrimination, by improving opportunities respecting goods, services, facilities, accommodation or employment in relation to that group.”
The E.U. Racial Equality Directive also makes an exemption for special measures, stating that: “With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.”
In all four definitions, the key features which distinguish special measures from unlawful discrimination are that they are:
- Targeted at a particular racial group which is disadvantaged, and is therefore unable to equally enjoy their human rights and fundamental freedoms, and
- Designed to ameliorate that disadvantage and promote substantive (rather than formal) equality between individuals of different races.
Such measures will therefore only be lawful to the extent that the group concerned continues to require special measures to compensate for disadvantage, and will become invalid discrimination once the measures are no longer required in the interests of substantive equality.
While the legislative provisions are similar, the judicial application of the special measures exception has varied somewhat between the Australian and Canadian jurisdictions. In the Canadian constitutional context, the Supreme Court has taken a purposive approach to the interpretation of discrimination, emphasizing that the goal of the equality clause in the Charter is “remedying or preventing discrimination against groups suffering social, political and legal disadvantage in our society.” The court has therefore been inclined to take into account the social and historical context in which the alleged discrimination occurs, including any historical prejudice, disadvantage or stereotyping experienced by particular groups in the community. The second part of section fifteen of the Charter, set out above, has been interpreted, not as creating an exception to the prohibition of discrimination, but rather as reinforcing an interpretation of the Charter clause which prohibits only substantive, and not formal, discrimination. Since special measures seek to enhance substantive equality by ameliorating the effect of past discrimination and reducing present disadvantages, they will not be considered discriminatory under the Charter, and thus no exception is required to make them lawful.
In contrast, the Australian courts have interpreted attempts to benefit disadvantaged groups (defined by race) as inherently discriminatory acts, which are only lawful because they fall within the special measures exception contained within the Act. While the end result may be the same, and special measures permitted in both jurisdictions, this is a significant conceptual difference which demonstrates a trend in the Australian courts towards a more formal and less contextually dependent concept of discrimination than that which is relied on in the Canadian Constitutional context.
The exceptions for special measures in the United Kingdom are much more narrowly framed. In the area of employment, some special measures directed at a particular racial group may lawfully be taken if it can be shown that “the proportion of persons of that group among those doing that work in Great Britain” (or a particular area of Great Britain) “was small in comparison with the proportion of persons of that group among the population”. These measures are restricted, however, to either providing specifically targeted facilities for training, or encouraging people from the underrepresented group to apply, and it remains unlawful to take race into account when making hiring or promotional decisions.
A recent review of the United Kingdom legislation acknowledged concerns that “the provisions are too restrictive by being limited to training and encouragement for particular work and not wide enough to tackle the kinds of disadvantage suffered in today’s society.” The review noted specifically that some ethnic minorities are better qualified in terms of higher education and degrees than the majority of the population, and yet still experience difficulty entering particular fields of employment. For these groups, mere training is unlikely to provide a remedy to under-representation.
Some special measures outside of the employment context are also permitted. The Race Relations Act 1976 (U.K.) contains an exemption for any “act done in affording persons of a particular racial group access to facilities or services to meet the special needs of persons of that group in regard to their education, training or welfare, or any ancillary benefits.” The Commission for Racial Equality has noted that the courts have interpreted the concept of ‘welfare’ quite narrowly in this context, such that it is unlikely to cover all cases in which temporary measures are introduced to combat disadvantage. Thus in both employment and other areas of discrimination, the extent to which special measures are permissible under British law is significantly more restrictive than in the Australian and Canadian jurisdictions, and makes unlawful many measures that would be permitted under the ICERD or E.U. Racial Equality Directive.
Unlike the other jurisdictions examined above, the United States legislation contains no express exception for special measures. Moreover, strict judicial interpretation of the ‘equal protection’ clauses in the United States Constitution has led to the invalidation of many government affirmative action policies as unconstitutional.
In direct contrast to the Canadian constitutional approach, American courts have refused to allow any distinction at all to be drawn between ‘benign’ and ‘discriminatory’ racial distinctions in the constitutional context. All legislative classifications based on race are subject to the same standard of ‘strict scrutiny’, regardless of whether they perpetuate or seek to remedy historic disadvantage. This ‘strict scrutiny’ test requires the party seeking to introduce the measure to show that it is ‘narrowly tailored’ and ‘serves a legitimate government interest’. The courts have repeatedly emphasized that this is a heavy burden, and prior to the case of Grutter v Bollinger in 2003 (which succeeded by a 5:4 majority), no measure challenged under this doctrine had ever been found to comply.
Part of the reason why the ‘strict scrutiny’ test is so difficult to meet is the court’s extremely narrow interpretation of the concept of ‘legitimate government interest’. While it has been accepted that the state may have a legitimate interest in acting to remedy past, specific instances of discrimination within an institution or industry, there is no corresponding legitimate interest in remedying broader social disadvantage. As stated by Justice O’Connor, “a governmental agency's interest in remedying "societal" discrimination, that is, discrimination not traceable to its own actions, cannot be deemed sufficiently compelling to pass constitutional muster under strict scrutiny.” Thus the mere fact that individuals of a particular racial group are experiencing current disadvantage, and require assistance in order to have substantively equal access to basic human rights such as education or employment, is of itself insufficient to justify racially-targeted measures under the U.S. Constitution.
As an alternative to showing that positive measures are put in place in response to specific instances of discrimination, the courts have also been willing to accept that state institutions, particularly educational institutions, may have a legitimate interest in promoting diversity. Thus in Grutter v Bollinger, the policy of a university law school, which considered race amongst other factors in the interests of “assembling a class that is both exceptionally academically qualified and broadly diverse”, was held not to fall foul of the constitutional amendment.
In this case, the court particularly noted the evidence brought by the university which demonstrated the educational benefits of diversity on the broader student body. As the court has stated in a more recent decision, it is necessary for the party concerned to satisfactorily demonstrate the “pedagogic concept of the level of diversity needed to obtain the asserted educational benefits.” In the context of the approach to ‘special measures’ taken in other jurisdictions, this focus is unusual, since it appears that racial distinction must be justified on the basis of the benefits it confers on those of other races, rather than on the disadvantaged group itself.
Outside of the constitutional context, the courts have been somewhat less strict in relation to affirmative action taken by private actors. In the employment context, it may be lawful to take measures to redress ‘manifest imbalance’ between the number of persons of a particular race employed and the proportion of those persons in the relevant labour market who possess the necessary qualifications. Unlike in the constitutional context, this ‘imbalance’ need not be traceable to any specific acts of discrimination within the industry concerned, and may be the result of mere ‘societal’ disadvantage. It will not, however, justify affirmative action when the effect of such broad social disadvantage and inequality has been to limit the number of persons of a particular race who have the necessary qualifications, rather than the number of qualified persons employed.
In order to be lawful under the Civil Rights Acts, these kind of affirmative action measures must be flexible and temporary and designed to eliminate an imbalance rather than maintain racial balance. They also cannot ‘unnecessarily trammel’ the interests of other racial groups by, for instance, requiring current employees to be dismissed and replaced by those of a particular racial group, or placing an absolute bar on the hiring or promotion of those outside a particular racial group.
International Convention on
the Elimination of All Forms of Racial Discrimination, opened for signature
21December 1965, 660 UNTS 195 (entered into
force 4 January 1969) art 1(4).
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21December 1965, 660 UNTS 195 (entered into force 4 January 1969) art 2(2).
Racial Discrimination Act 1975 (Cth) s 8(1).
Racial Discrimination Act 1975 (Cth) s 8(1) and 10(3).
Canadian Charter of Rights and Freedoms, Schedule B Constitution Act 1982 (U.K.), cl 15(2).
Canadian Human Rights Act, RS 1985, c. H-6 s 16.
Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective or racial or ethnic origin  OJ L180/22, art 5.
 Wilson J, R. v Turpin  1 SCR 1296.
 Hurley M C, Chapter Equality Rights: Interpretations of Section 15 in Supreme Court of Canada Decisions BP-402E (2007).
(http://www.parl.gc.ca/information/library/PRBpubs/bp402-e.htm#endnote5) (accessed 14/8/07).
 Iacobucci J, Lovelace v. Ontario, 2000 SCC 37,  1 SCR 950 at paragraph 53: “And finally, we must ask whether the impugned law, program or activity has a purpose or effect that is substantively discriminatory.”
 For criticism of the Australian approach, see: Wojciech S, ‘Gerhardy v Brown v the concept of discrimination: reflections on the landmark case that wasn’t’ (1986) 11(1) Sydney University Law Review 5.
Race Relations Act 1976 (U.K.) c 74 ss 37-38.
 Department for Communities and Local Government ‘A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain: a consultation paper’ (2007) at 72.
http://www.communities.gov.uk/publications/communities/frameworkforfairnessconsultation (accessed 7/10/07).
Race Relations Act 1976 (UK) c 74 s 35.
 Commission for Racial Equality, CRE Briefings on Discrimination Law Review: Balancing Measures (2007) at 3
http://www.cre.gov.uk/downloads/dlr_paper5.pdf (accessed 14/8/07).
 For a discussion of the historic and cultural differences between the U.S. and Canada which are reflected in their very different approaches to affirmative action see: Ross S F, ‘Symposium: 20 Years Under the Charter: Charter Insights for American Equality Jurisprudence’ (2002) 21 Windsor Year Book of Access to Justice 227.
 The key cases in this regard are City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), in which strict scrutiny was applied to state affirmative action programs, and Adarand Constructors, Inc. v. Pena 515 U.S. 200 (1995), in which the same standard was extended to federal affirmative action.
Grutter v Bollinger I23 S. Ct. 2325 (2003). As discussed in Primus R A, ‘Equal Protection and Disparate Impact: Round Three’ (2003) 117(2) Harvard Law Review 493 at 501.
 O’Connor J, Wygant v. Jackson Board of Education, 476 U.S. 267 (1986) at 288.
 See particularly Powell J, Regents of the University of California v. Bakke, 438 U.S. 265 (1978) at 311; affirmed by Grutter v Bollinger I23 S. Ct. 2325 (2003).
Grutter v Bollinger I23 S. Ct. 2325 (2003).
Parents Involved in Community Schools v Seattle School District No 1, No 01-35450 (9th Cir. July 27, 2004)
www.supremecourtus.gov/opinions/06pdf/05-908.pdf (accessed 15/8/07).
 Johnson v. Transportation Agency 480 U.S. 616 (1987). As discussed in Larson L, Employment Discrimination (2006) at 62.05 (2).
 Test established in United Steelworkers v. Weber 443 U.S. 193 (1979). As discussed in Larson L, Employment Discrimination (2006) at 62.01.