Achieving the Rights Result: Affirmative Action and Article 4 of the Women's Convention
Introduction: Making Equality a Reality for Women
Article 4 and the Women's Convention
Affirmative Action in Employment
A Global Assessment of Affirmative Action in Employment
Affirmative Action in Political Participation
Affirmative Action in Education
Affirmative Action: Lessons from around the World
Introduction: Making Equality a Reality for Women
The January 1997 International Women's Rights Action Watch meeting brought experts from around the world to New York to explore and confirm the importance of affirmative action as a positive instrument for ending discrimination against women. Because affirmative action is an essential instrument for moving forward towards full equality, it is enshrined in Article 4 of the Convention on the Elimination of All Forms of Discrimination Against Women, an overarching provision that must be applied to effectively implement all the other Convention provisions.
"Affirmative action" generally refers to any temporary special measure that a public or private entity takes to increase participation of women or another underrepresented group. Although affirmative action strategies have been in place for as long as thirty years in some countries, it continues to be one of the most controversial topics in contemporary public discourse.
Because of its significance and its controversial nature, proponents must make the debate over affirmative action their own and develop a global strategy to promote it as a method of achieving real equality. To this end, IWRAW invited members of the Committee on the Elimination of Discrimination Against Women and other international experts to share their experiences working with affirmative action policies.
The work of CEDAW is critical to designing and promoting an international strategy that fosters the development of successful affirmative action programs. As countries come before the Committee for review, they are held accountable for obligations not only to eliminate discrimination-changing discriminatory laws and practices-but for efforts to eliminate its de facto effect. Article 4 underscores that obligation. It is hoped that the points raised in the IWRAW consultation will assist the Committee in developing its approach to effective application of Article 4.
Article 4 and the Women's Convention
Article 4 must be read in conjunction with other articles in the Convention
Article 4 (1) of the Women's Convention states:
Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objective of equality or opportunity and treatment have been achieved.
CEDAW member Hanna Beate Schoepp-Schilling of Germany opened the discussion by observing that discriminatory attitudes towards women are entrenched and "permeate the very structures of society," and that Article 4 provides a mechanism for eliminating systematic or structural discrimination. This systematic discrimination reveals itself in the low representation of women in politics, education, employment, economic ventures, and other aspects of public life. Article 4 offers a vehicle for addressing this situation with respect to all the substantive areas covered by Convention provisions, trend with respect to other articles in the Convention including political and public life (Article 7), education (Article 10), and access to credit (Article 13). Schoepp-Schilling recommended that CEDAW undertake a comprehensive analysis of the relationship between Article 4 and other articles of the Convention when it drafts a General Recommendation on Article 4.
A narrow, textual reading of Article 4 suggests that the article merely permits affirmative action provisions but does not mandate them. As Schoepp-Schilling pointed out, however, Article 2 (b) and (e) of the CEDAW Convention obligate States Parties to "adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women" and to "take all appropriate measures to eliminate discrimination against women by any person, or organization or enterprise." Article 3 also reaffirms the commitment to take all appropriate measures to ensure the full development and advancement of women. Taken together, Articles 2, 3, and 4 do, in fact, create an obligation to implement affirmative action policies in an effort to end discrimination against women.
Article 4: Formal versus Substantive Equality
Article 4 is integral to the Convention as a whole. Shelagh Day, a Canadian scholar and activist who works with employment equity issues, holds that Article 4 is critical to the underlying purpose and spirit of the Convention. Affirmative action raises concern among many that women are receiving special or different treatment rather than the same or equal treatment. Day remarked that there are two possible ways to read the Convention, and Article 4 is central to both:
Only the second model is consistent with the underlying purpose and message of the Convention. If one interprets the Convention according to this anti-subordination model, it is not necessary to explicitly affirm the use of affirmative action measures as Article 4 does. From an anti-subordination standpoint, Articles 2 and 3 already obligate States Parties to adopt affirmative action as one strategy among many to eliminate discrimination against women.
The interpretation of Article 4 and of its relationship to the rest of the Convention has significant implications for the CEDAW Committee. To illustrate, Day suggested an image of a sheet of paper with two columns. Column A is headed "same treatment." Attention is focused on laws that treat men and women differently, unless such treatment is explicitly permitted under the Convention, such as maternity benefits. According to this understanding of Article 4, every aspect of different or preferential treatment must be considered suspect; there are no principles for deciding which differentiations are appropriate. Because this "same treatment" model concerns itself only with treatment, it renders disadvantage invisible and ignores the question of result.
Column B focuses on the subordination of women rather than sameness of treatment. Under this analysis, the Convention commits states to provide interventions that have a positive impact on women's lives through affirmative action and other means; without this, the Convention is an empty promise of equality. The backlash against affirmative action consists of "Column A thinkers."
Theoretical Justifications for Affirmative Action
Because affirmative action policies are supposed to be temporary, there is a practical distinction between affirmative action measures and other types of anti-subordination policies. The theoretical justifications, however, are similar. Marcela Rodriguez, a lawyer from Argentina, offered a philosophical interpretation of affirmative action. For Rodriguez, the distinction between competing notions of equality is central to the discussion.
Equality of opportunity and equality of results often mean different things for women's advancement. Although in some cases equality of opportunity and equality of results converge, equality of opportunity, or formal equality, is often simply not enough. Sexual inequality has become so entrenched in societal norms that the mere abstract notion of equality of opportunity cannot possibly ensure equality of results. In some cases, it is necessary to provide a certain group with special, unequal mechanisms to achieve real, substantive equality.
Rodriguez urged a reformulation of the equality of opportunity/equality of results dichotomy. She advocated a re-examination of affirmative action terminology. The resistance and backlash around affirmative action have destroyed the real meaning of "equality of opportunity" by emptying it of "equality." As a result, advocates of affirmative action are forced to abandon the concept. This and other concepts in the affirmative action discourse are closely linked to notions of human rights and should be reformulated and reframed rather than discarded.
The most useful justification for affirmative action lies in the concept of applied justice. Hanna Beate Schoepp-Schilling offered a positive, comprehensive theoretical framework for affirmative action. She classified affirmative action measures in three categories of justifications:
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Affirmative Action in Employment
Affirmative action in employment is highly visible and has drawn the greatest backlash reaction. It is a critical step in eradicating historical discrimination against women and other underrepresented groups around the world.
The Kalanke Case: A Setback for the European Union?
Proponents of affirmative action were profoundly shaken by the result of a recent case in Germany. In Eckhard Kalanke vs. Freie Hansestadt Bremen (Court of Justice of the European Community #C-450/93 [Oct. 17, 1995]) an equally qualified man and woman applied for a job with the city of Bremen. The company hired the woman under a policy that required automatic preference in favor of the woman that when male and female applicants had equal qualifications and there was underrepresentation of women in the workplace. The man sued and lost in two lower courts. The federal court then ruled that it was unclear whether this policy was sufficiently related to the general directive of the European Union as to affirmative action in hiring. When the case reached the European Court, the Court ruled in favor of the male plaintiff. In a carefully worded judgment, the Court maintained that affirmative action policies including quotas were acceptable under the law. However, the Court objected to the interpretation of affirmative action as a mechanism to achieve equality of results or substantive equality. According to the court, affirmative action policies are only intended to achieve equality of opportunity. As a result, the Court rejected this particular policy because of the "automatic" nature of the preference given to women.
Schoepp-Schilling noted that, although the judgment in the case will negatively impact affirmative action, it does not constitute a decision against affirmative action per se. The case, however, has been taken as distinctly undermining the principle of affirmative action.
Anna Lise Riel, CEDAW member from Norway, noted that the Kalanke case could have an effect in Norway, because of Norway's link to the European Union. Outrage over the Kalanke result ran so strong that the Prime Minister appeared on television to say that Norway would not discontinue its affirmative action programs. According to Riel, Norway's anti-discrimination law, the Gender Equity Act, prohibits discrimination on the basis of gender. The Act contains provisions which, like Article 4 of the CEDAW Convention, stipulate that affirmative action measures do not violate the Act. The Act, however, is silent regarding the precise nature and parameters of affirmative action.
Riel noted a difference in the potential of affirmative action in the public and private sectors. Because the public sector is highly unionized, it is less complicated to implement affirmative action measures. As a result, the position of women in the public sector is significantly better than in the private sector.
Affirmative action remains controversial in Norway, despite its long history. Riel suggested that many women feel their employers hired them because of affirmative action policies and feel that their colleagues do not respect them for this reason. This results from a misunderstanding of the provisions. Norway's affirmative action measures deal with equally qualified people; it is only intended to combat the de facto preference for men that already exists.
Affirmative Action: Experiments & Experience
According to Shelagh Day, "[Canada's] story is not a happy one." Canada's constitutional guarantee of equality permits affirmative action measures. Federal and provincial legislation echoes this constitutional commitment. Despite twenty years of work with positive legal provisions, however, Canada has made little progress in achieving real equality for women and other underrepresented groups.
Affirmative action, called "employment equity" in Canada, is intended to remedy discrimination vertically within labor sectors and horizontally across labor sectors. In other words, affirmative action in a given workplace or industry should help women move up the hierarchy into management positions and beyond. Affirmative action should also help women move horizontally into labor sectors that have traditionally been reserved for men. In Canada, 70% of the female labor force is employed in clerical work, services and sales.
Affirmative action in Canada targets three identifiable groups in addition to women: visible minorities or people of color, people with disabilities and aboriginal people. The federal affirmative action provision, which only covers about 10% of the employers in Canada, requires federal employers to establish employment equity programs including goals and timetables for achieving equal representation and reviews of statistics to determine the extent of the problem. The law requires federal employers to report annually on the number of employees from underrepresented groups.
Although the law states that federal employers should have affirmative action policies in place, the only enforcement mechanism for the last ten years was a requirement to report on statistics regarding representation of the four designated groups in the workplace. Under the law, it does not matter whether a federal employer has an affirmative action program as long as the employer files its statistics with the government every year. This strategy of encouraging affirmative action by embarrassing employers with their own statistics has failed miserably.
The only other strategy available to groups was to file human rights complaints alleging that the underrepresentation revealed by the statistics was evidence of systemic discrimination. The Assembly of Manitoba Chiefs, among other groups, did this and some useful settlements resulted.
In recent amendments to the employment equity law, according to Day, the government gave with one hand and took away with the other. Federal employers are now required to develop a program, and the Canadian Human Rights Commission can conduct audits to determine compliance. The amendments, however, eliminated the Commission's ability to mandate an affirmative action policy in response to complaints.
In Bangladesh, an affirmative action program has existed for twenty years - with minimal results. Salma Khan, Chair of CEDAW, explained that quotas are only applicable to public sector jobs, which constitute only 15 % of employment. There are no mechanisms to enforce affirmative action in the private sector. In Bangladesh, there are three ranks of employment: the highest jobs are officer level jobs, the middle level jobs are "stock" level, and the third are a collection of low ranking jobs. Public sector employment quotas for women are 10% for women at the officer level and 15 % for women at the stock level and below.
Within the public sector, employers may make 45% of the job decisions on merit. Of the remaining 55%, an employer must allocate affirmative action hires according to the following formula: 30% of the jobs go to Freedom Fighters, 10% go to women, 10% go to "backward districts," and 10% go to tribal peoples. Khan observed that although the policy has been in place since 1976, women in Bangladesh still represent only 10 % of the formal labor force. Khan noted that this is not enough - Bangladesh needs to work toward achieving a critical mass of women in employment sectors.
Martha Davis, an attorney with the National Organization for Women Legal Defense and Education Fund (NOW LDEF), stated that in the US, with thirty years of gender-based affirmative action programs, the story is now about backlash.
The equal protection clause of the US Constitution provides the legal basis for affirmative action programs. The US Supreme Court has repeatedly upheld the constitutionality of affirmative action measures but recently narrowed the circumstances in which affirmative action is permissible. According to the most recent Supreme Court cases on affirmative action, race based programs are permissible when narrowly tailored to overcome specific examples of racial discrimination. Proponents of affirmative action now need to prove a specific history of discrimination that the proposed program redresses.
For gender-based affirmative action programs, the standard may be more relaxed. Any distinctions based on race, including benign discrimination or affirmative action, must be justified according to a strict standard of necessity. Gender-based distinctions require less rigorous justification to pass muster. As a result, it may be easier to defend a gender-based affirmative action program than a race-based affirmative action program.
Other statutes such as Title VII of the Civil Rights Act (employment) or Title IX (education) provide an additional statutory basis for affirmative action. Under Title VII of the Civil Rights Act, the Supreme Court has upheld a number of affirmative action programs in employment including: recruitment and outreach programs to include qualified women in the hiring pool; training programs targeting women for promotions; and in some cases, flexible goals and timetables as benchmarks to measure progress.
Federal policy on affirmative action in employment primarily takes the form of contract compliance programs. The Federal Contract Compliance Program, which is enforced by the Department of Labor, Office of Federal Contract Compliance (OFCC), requires firms that are seeking contracts with the federal government to develop goals and timetables for hiring women and people of color in areas in which they are underrepresented and to make annual reports on their progress.
The OFCC has jurisdiction over the 200,000 federal contractors, which employ approximately one fourth of the civilian labor force, and can initiate reviews of these companies. Contract compliance and the OFCC are created through Presidential Order and apply to companies with fifty or more employees and those receiving more than $50,000 in federal contracts. Davis pointed out, however, that the enforcement problems are similar to those in Canada. Goals and timetables are set for employers, but they are not required to meet these goals; they merely have to demonstrate a good faith effort to achieve affirmative action goals.
In addition to the Contract Compliance Program, the federal government has established another type of program involving contract preferences. Under this program, companies that are operated by women or other "socially and economically disadvantaged groups" are able to win contracts without competitive bidding if the contracts are for less than five million dollars for manufacturing or three million dollars for other services. Davis noted that President Clinton recently established a goal of 5% of federal contracts for women throughout the government, but this has not been implemented through regulations.
Davis' assessment of contract compliance programs in the U.S. is relatively positive. She noted that the number of women-owned businesses increased since 1982 by more than 57%. Additionally, studies have shown that women do better at companies that are contracting with the federal government. Federal contractors employed women at higher wages and in better jobs than companies that are not contracting with the government.
A number of affirmative action programs have resulted from employment discrimination litigation. For employment discrimination cases brought under Title VII or other legislation, court involvement can result in mandatory affirmative action measures for public and private sector employers. The U.S. has a long history of court battles that moved affirmative action agendas forward. The federal Equal Employment Opportunity Commission (EEOC) has jurisdiction over Title VII employment cases involving private employers. The EEOC has the authority to initiate lawsuits as well as review compliance with anti-discrimination measures. The Department of Justice has jurisdiction over discrimination cases involving state and local government.
As Davis notes, however, the agencies charged with monitoring compliance with affirmative action programs are severely understaffed and under-funded. In 1994, for example, the EEOC received 91,000 complaints of employment discrimination, of which it dismissed 97%. The EEOC only litigated a total of 418 cases, a fraction of the cases that were not dismissed. Davis was quick to point out that this was not a question of meritless or frivolous cases. In fact, many of the cases dismissed by the EEOC and litigated instead by private counsel have subsequently been won in court.
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A Global Assessment of Affirmative Action in Employment
The litany of setbacks and semi-successes is not the entire story. Constance Thomas of the International Labor Organization (ILO) presented the findings of an ILO study that found major successes in a number of countries. According to this study (which included information from Australia, Canada, Chile, Denmark, India, Italy, Philippines, United States, and Zimbabwe as well as other studies such as the Evaluation of Positive Actions conducted by the European Commission in the early 1990s) success generally is attributable to context and planning as well as political will. Programs in less developed countries can be more successful than in rich ones.
Critical findings from the ILO study:
Resistance and Backlash
In North America, the results of affirmative action have been sufficiently visible to provoke a backlash. Shelagh Day described the frustrated Canadian experience. The province of Ontario introduced comprehensive, progressive affirmative action legislation in 1994. The provision had strong enforcement mechanisms and was clear about employer responsibilities. The legislation also required that affirmative action employers use the percentage of group representation in society as the standard for setting goals rather than the percentage of a group that is already in the labor sector. Activists had argued that the latter would only perpetuate existing patterns of discrimination.
Groups lobbied for years for passage of the Ontario legislation. After its enactment, the law was only in force for one year before a new provincial Parliament repealed it. The new majority favored a law, as they termed it, "to eliminate job quotas and to restore merit in hiring." Day concluded that the lesson to be learned from Canada is not that affirmative action has not worked but that it has not yet been tried.
In the United States, resistance to affirmative action has gained momentum in recent years. The backlash against affirmative action culminated in 1996 when the state of California passed a referendum amending the state Constitution to prohibit affirmative action for state employees. The California state Constitution is atypical in that it allows constitutional amendments through public referendum. The referendum, called Proposition 209, states, "The state shall not discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
Martha Davis explained that the wording of the amendment was very confusing. By using terminology reminiscent of the civil rights era, the drafters and proponents of Proposition 209 intended to confuse voters. As an experiment, the leadership at the National Organization for Women (NOW) held a mock referendum within the organization. The referendum passed, because people thought that in voting for it, they were supporting an anti-discrimination provision - not a rejection of affirmative action.
In the California state referendum, the amendment passed by a margin of 54% to 46%. Opponents of Proposition 209 filed a lawsuit the next day, and the court prevented the measure from taking effect.
Unfortunately, California is not alone. As of January 1997, thirteen other states had proposed similar referenda or legislative measures to eliminate affirmative action. Supporters of affirmative action fear that this number will increase with the success of Proposition 209 in California. Advocates of Proposition 209 have organized a committee to promote similar measures in other states.
Affirmative Action, Development, and Diversity
Participants suggested that the anti-subordination model is critically important in applying affirmative action in developing countries. It can effectively be linked to the right to development and used as a basis for rethinking individualistic legal approaches to equality. According to CEDAW Chair Salma Khan, affirmative action must be approached in a country-specific way. Khan explained that a country's level of development forms the background which must frame any discussion of affirmative action. In developing countries, affirmative action may not lead to equality of results in every context. In developing countries, affirmative action is often not about giving women equal opportunity in the employment context. It is more a question of "opening a door for them" through literacy or other basic skills training. Khan added that affirmative action in the political context offers women the only real hope of sharing power.
In a related comment from the floor, Celina Romany, Professor of Law at the City University of New York Law School and a representative of CLADEM, remarked that it is critical for CEDAW to ask what the right to development is in a country-specific situation and how this relates to anti-subordination programs in developing countries. Structural adjustment programs and privatization will affect the definition of affirmative action and development in certain circumstances. Constance Thomas of the ILO also mentioned resistance to affirmative action as a result of structural adjustment programs. Because of the controlling structural adjustment framework, programmatic labor market policy, including affirmative action, is perceived as unnecessary rigidity that should be removed. Charlotte Abaka, a CEDAW member from Ghana, echoed the need for temporary special measures to mitigate the negative, short-term impact of structural adjustment programs.
Romany also questioned the effect of affirmative action measures on diverse communities. It is essential to consider how race discrimination intersects with gender discrimination and to consider whether women of color are adversely affected by affirmative action policies. Citing the United States as an example, Romany pointed out that affirmative action has largely privileged white women and men of color and been ineffective in meeting the needs of women of color.
Shelagh Day addressed the difference between affirmative action in Northern countries and in the global South. The model of affirmative action constructed in Northern countries focuses on autonomous, disconnected workplaces even though systemic discrimination results in wider patterns of subordination. This "one workplace at a time" Northern model approaches the workplace as a large entity "with the walls of the institution" around it. The model fails to address the many women who are "falling out of the bottom of it;" the most disadvantaged women, often women of color or women with disabilities, are falling into non-standard jobs, part-time work, or home work. As Salma Khan pointed out, this model does not apply to women who do not even have their foot in the door of the formal labor market. We must develop different affirmative action models for women that are not within the formal workplace.
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Affirmative Action in Political Participation
Programs and Potential
Activists and governments in the global South have prioritized affirmative action in political participation rather than in employment. A number of countries have constitutional quotas designed to ensure a percentage of women in political office. These programs have been important in increasing the visibility of women in the political arena, but are not universally effective in promoting measurable policy change.
When it gained independence in 1973, Bangladesh amended its Constitution to establish affirmative action for women to enter politics. The amendment, which will be in effect for 30 years, reserved ten percent of the 300 seats in Parliament for women. According to Salma Khan, women were initially slow to run for office, and the first women who did run were elected as a result of their connections to men. Under the political structure in Bangladesh, any political party winning 151 seats, the majority in Parliament, can nominate the 30 reserved seats for women.
Political affirmative action programs in Uganda are relatively new. According Ugandan lawyer and activist Ester Mayambala, the Constitution in effect through 1986 did not prohibit gender discrimination. As a result, women suffered under laws that were blatantly discriminatory, and they had no legal recourse. In July 1985, however, Uganda ratified the Women's Convention, and shortly thereafter the government changed hands. The change of government ushered in a new era of women's political participation. The government instituted affirmative action policies to achieve three primary objectives: increase women's numbers in Parliament, increase women's participation in lower levels of government, and increase women's representation in high levels of the executive branch.
In 1989, the Ugandan government expanded Parliament from 126 members to 270 members and created 39 seats for women, one for each of the 39 districts. Additionally, the government has made efforts to integrate women into politics at the local level since 1986. At that time a local governance system was instituted, consisting of "Resistance Council Units" from the village level up to the district level. The government's five-tier system of local governance required that each Resistance Council Unit elect at least one woman among its nine members. Uganda's new Constitution, which was adopted in 1995, reserves one-third of the membership in the local government councils for women.
Is affirmative action in politics working for women?
Despite the long-standing quota in Bangladesh, women have not fared particularly well in politics. After 23 years of the quota system, the proportion of women has risen from only 0.3 % to 1.36 % of politicians. No more than seven women have ever been elected in one election. In 1986, for example, many years after the implementation of the quota, only five women were directly elected; 30 women took office under the quota. Similarly, in 1996, five women were directly elected and 30 more took office as a result of the quota. Women have had very limited success in the general election and are forced to rely on the quota seats for representation in Parliament.
In Uganda, quotas have increased women's participation at the parliamentary level from one woman in 1985 to 51 women (seven directly elected), or 18.5% of Parliament, in 1996. Additionally, the government's affirmative action efforts at the local level have integrated many more women into the political process. Women have been able to work their way up from local politics to district and national politics. Mayambala pointed out that women's political power at the local level is particularly important in light of efforts to decentralize the government.
Potential Problems with the Political Quota System
Khan expressed a number of concerns about the current quota system in Bangladesh. Women candidates have had difficulty cultivating a relationship with voters, because each woman represents one of only 30 zones, whereas the men represent over 100 zones. As a result, women must cope with a huge number of voters per zone and have had trouble developing loyal constituencies. Additionally, the women who are elected through the quota system often do not represent the concerns of the women's community. They are intimidated and simply echo the party platform rather than challenge the status quo.
Marcella Rodriguez noted that the purpose of affirmative action is not to dictate how women vote or behave when they enter patriarchal structures but to ensure that they have access to those structures. Underscoring this point, Janet Kabeberi-Macharia of Kenya remarked that the quality of the women entering parliament under any system is crucial.
Mayambala suggested that the audience be cautious in judging women who are new to politics. In Uganda, women in the Constituent Assembly were responsible for positive changes in the 1995 Constitution. One woman delegate in the Constituent Assembly introduced an article to create an Equal Opportunity Commission. Newcomers to political office, many of the women gradually gained experience and confidence. They became very effective working as a group and organized gender dialogues in which they often identified a male representative to speak for a particular bill.
Women in Bangladesh have had to confront the obstacle of entrenched stereotypes regarding their role in society. According to Khan, men believe that only male politicians will offer appropriate political behavior; the popular perception is that women will not be hard and assertive enough for politics. Many women have internalized this message and would rather spend scarce campaign money on the campaign of a male relative, who would stand a better chance of winning.
On the other hand, women are receiving some attention as potential voters. All of the major candidates have had to target women's votes and, as a result, consider issues of great concern to women. Additionally, the Prime Minister and the leader of the opposition party are women. Khan concludes that women in Bangladesh could not do without affirmative action in politics, but there must be an effort to make affirmative action more effective for women.
One suggestion to make affirmative action more effective is to require that the political parties nominate a certain percent of women. Marcela Rodriguez noted that Argentina has a law that political parties must have a minimum of 30% women on their ballots. Aissa Khanum, also from Bangladesh, commented that the community must begin to integrate women into the entire political process rather than only at the parliamentary level.
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Affirmative Action in Education
Equal education is essential to achievement of equality in all other areas. Affirmative action in education provides women, girls and other underrepresented groups with the skills and knowledge to claim their place and make the most of any opportunity.
In 1991, Makerere University in Uganda adopted a policy of awarding bonus points to female applicants for admission. The policy has been highly controversial. Mayambala pointed out that the policy is problematic, because it is impossible to determine how many women benefited from the program and how many would have qualified for admission without the bonus points. Additionally, the beneficiaries appear to be graduates of good schools; the policy may not be reaching women who need it most. The policy, which was introduced by Makerere University, has been adopted by the government but not by other universities.
Unlike Uganda, where affirmative action in education is relatively new, Ghana has a long history of affirmative action in education. Charlotte Abaka, a CEDAW member from Ghana, explained that an emphasis on education was one of the only beneficial legacies of colonialism. Under colonial rule, however, quality education was limited to the cities and resort areas, the geographic areas where colonizers lived. When Ghana gained its independence in 1957, the government recognized that certain northern regions were disadvantaged in terms of education and development. As a result, the government instituted an affirmative action plan to provide free education in these regions.
In addition, Ghana has initiated programs to close the gap between girls' and boys' science education. The Education Ministry organized science clinics during long vacations, and girls travel from all over the country to attend the clinics. Successful women scientists participate in the program to train girls and to act as positive role models. The programs have been so successful that many other countries are now sending their girls to Ghana to participate in the science clinics. A recently established Affirmative Action Committee recommended that the government decentralize the clinics and offer them in rural areas to increase the participation of rural girls.
Two of Ghana's tertiary institutions are currently using affirmative action in admissions decisions. The policy is basic: if a girl and a boy have the same qualifying marks, the institution should admit the girl. The Affirmative Action Committee also recommended that all tertiary institutions adopt an affirmative action policy for admission.
In contrast, affirmative action for education in the United States is regressing. Martha Davis noted that the courts have recently narrowed affirmative action in school admissions. The Hopwood case involving admission to the University of Texas Law School, prohibited the consideration of gender and race. The decision, which the Supreme Court declined to review, has had a negative impact on affirmative action programs in the region covered by the Fifth Circuit.
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Affirmative Action: Lessons from around the World
Affirmative action is by definition an attempt to change the way the world works. In a sense, affirmative action measures jump through history into the future. The best programs take into consideration the full quantitative and qualitative extent of past discrimination, analyze the current effect of past discrimination, and implement measures designed to place people where they would be if discrimination had not existed. A successful affirmative action program places people in a position to make the most of their future without being hampered by stereotypical assumptions and customs that limited their past.
Many methods have been used in attempts to reach equality through affirmative action. At the entry level, they can include special recruitment efforts, broadened standards for evaluating quality and achievement, extra points on entrance exams, and preferences for members of formerly excluded groups. Methods to encourage performance and support promotion are less well developed and documented. They can include special mentoring, remedial education and training, encouragement of support groups, and (again) preferences based on past exclusion. All these methods have in common the goal of changing the expectation of discrimination and ultimately eliminating its effect.
The day's discussion returned repeatedly to certain points about making affirmative action work for women:
We need a better understanding of the methods and models of affirmative action to find the most useful approaches. Some factors to be considered in the analysis:
- Affirmative action policies must be developed in consultation with the women they are designed to benefit.
- Affirmative action measures must be distinguished from protective measures that reinforce negative or restrictive stereotypes.
- Affirmative action programs must work not only to include women but also to support them once they are included.
- Programs must aim to effect equality vertically as well as horizontally across employment sectors.
- As a practical matter programs must have time-specific goals and allow sufficient time-many years- to obtain meaningful results.
- Both top-down and bottom-up monitoring and enforcement are critical.
- Affirmative action programs that have a broad constituency and more managerial support are more successful.
- Attitude and political will are important to the success of affirmative action programs.
- Resistance to and fear of affirmative action programs can be addressed effectively.
This last point is crucial. Successful affirmative action programs may draw resentment and anger-backlash-from those who perceive themselves to be losing opportunities because of group-based preferences and goals. Even the most adamant supporters of affirmative action also cope with doubts-is this the best way to do it? Will others think that we are in this job, this school, this office only because of a preference rather than on the basis of qualifications? How much will it cost us personally to be the first, or the fourth (female student, employee, politician), in a place where once there were none?
Doubts and backlash cannot be allowed to stop the affirmative action efforts that remain our primary hope for elimination of discrimination in the foreseeable future. It is terribly important for all of us-activists, scholars, politicians, and ordinary citizens-who accept the premise of equality in law, to understand affirmative action as an essential instrument for achieving equality in fact. Thus can practice make for justice, and the just become the practical.
Charlotte Abaka, Ghana. Member of CEDAW.
Shelagh Day, Canada. Attorney, consultant specializing in employment equity and human rights in Canada. Has held senior positions on several human rights commissions; co-author of book on women's constitutional equality rights.
Martha Davis, USA. Legal Director, NOW Legal Defense and Education Fund, USA. Focuses on women's economic rights, including affirmative action. Participated in the recent California case challenging Proposition 209 (anti-affirmative action referendum).
Vasudha Dhagamwar, India. Executive Director, Multiple Action Research Group (MARG), New Delhi. Served on several investigative commissions of the Supreme Court; currently a member of the Legal Experts Committee of the National Commission for Women, part-time member Indian Legal Commission.
Alda Facio, Costa Rica. Director, Gender and Justice program, ILANUD, San Jose. Jurist and writer with an expertise in human rights and gender perspectives; trains judges and police on violence against women.
Salma Khan, Bangladesh. Chair, CEDAW.
Esther Mayambala, Uganda. Lecturer, Human Rights Peace Centre, Faculty of Law, Makerere University, Uganda. Vice-chair, Uganda Association of Women Lawyers; researcher and consultant on status of women in Africa and related legal issues.
Anne Lise Riel, Norway. Member of CEDAW.
Marcela Rodriguez, Argentina. Feminist lawyer, scholar and activist. Director of a local government agency working for the promotion of women's human rights. Drafted affirmative action legislation for Argentina.
Hanna Beate Schoepp-Schilling, Germany. Member of CEDAW.
Constance Thomas, ILO. Senior Specialist on International Labour Standards. Expert in gender and employment; recently carried out research programs for the ILO on Positive Action to Promote Women in Employment and Enforcement and Enforcement of Equality Legislation for Women. 1990-94 served as ILO liaison to CEDAW.
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This report was prepared by Johanna Bond and edited by Marsha Freeman, IWRAW Director, and Keith Vargo.
The Achieving the Rights Result consultation was supported by the following donors:
The Ford Foundation and Ford field offices in Argentina, India, Indonesia, Kenya, Mexico, South Africa and Thailand
The Shaler Adams Foundation
The John D. and Catherine T. MacArthur Foundation
The Carnegie Corporation of New York
COPYRIGHT© 2009 All materials on this web site copyright of International Women's Rights Action Watch, University of Minnesota, USA