POSITIVE ACTIONS, REASONABLE ACCOMMODATION, AND THE DUTY TO ENSURE EQUALITY AS MECHANISMS FOR ACHIEVING SUBSTANTIVE EQUALITY

Abstract

The article provides a comprehensive analysis of positive action, reasonable accommodation, and the equality duty as interrelated legal mechanisms for the implementation of substantive equality and the elimination of structural discrimination. The work reveals their normative and legal nature, comparative legal models (symmetric, derogatory and substantive), identifies the differences between the individual and collective nature of these measures, and justifies the importance of the principle of proportionality as a universal criterion of their legitimacy in a democratic society. In international and national law, positive actions are designated by different terms: affirmative action, special temporary measures, equalizing measures or positive measures. Although there are terminological differences, they all have a common legal goal - ensuring material equality between persons in unequal conditions. Therefore, in this article, the concept of "positive action" is used as a general term that encompasses the above approaches. Examples of affirmative action include providing preferences to representatives of racial or ethnic groups that are underrepresented in higher education institutions, introducing gender quotas in the formation of government bodies or management structures, as well as other mechanisms aimed at eliminating imbalances in access to opportunities. It is argued that positive action represents collective and programmatic measures aimed at addressing systemic imbalances; reasonable accommodation constitutes an individualized obligation designed to ensure equal access to rights; and the equality duty serves as an institutional form of implementing the state’s positive obligations.

The evolution of scientific and normative approaches in the practice of the US Supreme Court and the legal system of the European Union is revealed. The aforementioned mechanisms are based on a common methodological basis, in particular, the principle of proportionality, etc. Taken together, these instruments transform the right to equality from a declarative postulate into an effective mechanism for implementing social justice, which complies with modern international human rights standards and trends in the development of European anti-discrimination law.