Discussion Of Whether Formal Equality Is Inedequate In Promoting Fairness

Formal equality is inadequate in promoting fairness and justice in society. It states that substantive equality would be the answer in fully eliminating discrimination. This essay will demonstrate that this statement is true to an extent. Formal equality is too simplistic in nature for it to be compatible with the multi-faceted areas of life. It will demonstrate that discrimination still exists, and it is mainly concentrated in groups like “women, people with disabilities, ethnic minorities and others.” The formal approach’s inability to tackle this will bring about the introduction of substantive equality which is deemed as a more “sophisticated” and compatible approach in dealing with inequality. It will highlight that although formal equality is severely lacking in several aspects that will be discussed later on, it is not to be abandoned and replaced with substantive equality. Several academics will reinforce the idea that a fusion of both will provide a better chance at tackling the complexities of discrimination and this will be explored throughout this essay. In addition to that, the flaws of substantive equality will also be introduced to affirm that it will not fully eliminate discrimination which will be discussed further on in this essay.

Before proceeding to the body of this essay, key terms will be defined to aid in better understanding. Equality has been defined as a “treacherously simple concept” and many academics have their own interpretation of equality, but this essay will rely on this definition of equality. “equality is ensuring individuals or groups of individuals are not treated differently or less favourably, on the basis of their specific protected characteristic, including areas of race, gender, disability, religion or belief, sexual orientation and age” . Formal equality refers to promoting “individual justice as the basis for a moral claim to virtue and is reliant upon the proposition that fairness (the moral virtue) requires consistent or equal treatment.” Substantive equality on the other hand does not have a fixed definition. Many have studied this area in an attempt to identify it but have zoomed in on three key areas that represent substantive equality and those are “equality of result, equality of opportunity and dignity.” This essay will focus on equality of result and equality of opportunity. Discrimination refers to “the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.”

The birth of formal equality can be drawn all the way back to Aristotle in his dictum that equality meant “things that are alike should be treated alike.” This has become how we understand equality today. The formal approach relies on the idea of “equal treatment” and this plays a big role in the “law and policy of many countries.” A recognisable trait of the formal approach is that “personal characteristics” are excluded from consideration. There are both who support and oppose this view. Libertarians are for this concept in saying that excluding these “irrelevant” factors would ensure that “merit” in a “democratic society” is maintained. It will be made clear throughout this essay that the very thing these libertarians are supporting is the downfall of formal equality that calls for a new approach, a substantive approach.

The European Community law has shown reservation towards welcoming Substantive Equality. The European Community law has overtime acknowledged Substantive Equality, but this is not enough. It is only on paper that they support and acknowledge this matter but practically, very little change has been done to rectify the flaws of formal equality. For starters, member states are under no obligation to “promote gender equality through substantive equality.” In addition to that, despite the acceptance of substantive equality, the ECJ still prioritises and “give precedence to formal equality.” The latter is “regulated by the EC whereas the former remains an open option” . It is “under the discretion of the member states” on their practises of Substantive Equality. This demonstrates the attitude of the European Community Law towards Substantive Equality. They accept its presence but make no move in practising or even encouraging member states to enforce it. It is seen as an open extra option that states can choose to adopt should they wish to or have the time to do so. This act encourages the concept of inferiority towards disadvantaged groups because they are still assessed and compared to others using the same metrics. Despite the strong support from law makers towards the formal approach, there are inherent flaws that cannot be ignored.

The first flaw of formal equality is that it requires comparison and most often the criteria for comparison is already biased. The criteria normally used in the UK in proving direct discrimination is “white, male, able bodied and heterosexual” . This is a fatal flaw in a system that claims to want to further promote equality. With such a diverse society, “to be treated the same might be of little value” . One case to demonstrate this flaw is Grant v South West Trains . This case involved a lesbian who wished to apply for a travel pass “for her female partner with whom she had had a meaningful relationship for more than two years.” SWT refused to grant the pass based on the fact that “benefits for its employees’ unmarried partners could be granted only to partners of the opposite sex.” SWT policy was an example of “ sex discrimination” because it required both parties to be of opposite sex of each other for their claim to be successful.

It was argued that there was no sex discrimination because there was no specific reference to a particular sex. P v S and Cornwall county council was applied in stating that “discrimination is exclusively essentially based on sex.” ECJ supplements this by saying that SWT did not “classify its employee based on sex.” Its only condition was that both individuals would have needed to be in a “stable relationship with an opposite sex.” They supported this judgement in saying that these travel passes would have also been denied if a male worker was claiming for his significant other who is also of the same sex. Both men and women would have been treated the same so it would not have counted towards sex discrimination. The last comment made by the ECJ is one that this part of the essay will be focusing on.

The presence of the male comparator demonstrates the inherent flaw of formal equality because their aim and action contradicts each other. In exercising equality of treatment In hopes of equalising the playing field, they have dug a deeper hole in reinforcing the idea that formal equality is not complex enough to deal with such a diverse society and Grant demonstrates that their actions have not only reinforced inequality but that it does achieve the goal of achieving equality. Grant is not the only case to suffer from the aftermath of equality of treatment. Zafar v Glasgow City Council has also been decided similarly in that Zafar has not been discriminated against race because the employer does this to everyone and because he does, Zafar is not an odd one out so there is no discrimination. Because equality of treatment relies on the idea that everyone who is treated the same is equal, it also applies if everyone is treated badly .

McKinnon states that “man has become the measure of all things” so “gender neutrality is… simply the male standard.” Until the court can accept that not all situations are compatible with a male comparator then “real progress could be made.” Diversity is negatively viewed in this instance only because it does not fit into the mould that formal equality has created. However, the problem in this instance doesn’t lie in diversity but the “treatment attached to them.” The focus here should not be to conform or change the issue but changing the way we approach it. Instead of practising “equality of treatment”, “equality of results” should be adopted. “Equality of results” rests under the umbrella of substantive equality where it is accepted that “unequal treatment may be necessary to achieve genuine equality.” This method allows itself to be moulded to cater to those who are “disadvantaged, demeaned, excluded or ignored.” It does not claim to resolve all issues but the aim was never to find the “best fit” but rather just simply a method that would “respond to real wrongs.”

Equality of results has demonstrated that the “irrelevant” factors that the formal approach has chosen to excluded is not so “irrelevant” after all. It has instead used these external factors to provide a holistic approach in tackling inequality. However, there are also arguments against equality of results as a method in tackling inequality. There are many vague terms that need to be clarified. In achieving equality of results, which results matter and which don’t? In addition to that, it is unclear to what sort of result is to be gained from adopting this method. Is it merely to achieve equal women to men ratio or equal representation of identity groups? Or is it slightly more complex in wanting to achieve equal representation in relation to “age, disability, religion or beliefs, and sexual orientation”? There are currently no answers to this and until there is a full description of equality of results, there is no guarantee that adopting this method will achieve the level of success expected.

The second flaw of formal equality is the fact that it rejects affirmative action or positive action measures. This is due the fact that it views “outreach programmes aimed at under- represented groups” or “quotas for particular groups of people in employment” as discrimination because a particular group (the disadvantaged) is treated unequally as they receive more help getting to the same goal as the advantaged group.

Affirmative action, which rests under equality of opportunity, another concept under the substantive equality umbrella encourages “full participation” from the workforce regardless of their group or disability. It provides them with the opportunity to receive “education and training” along with “good facilities and services” to ensure that they will be well equipped to compete with the rest of the society without feeling left out due to lack of exposure or experience. Northern Ireland has started practising affirmative action to redress “imbalances and under-representation between the two communities in Northern Ireland.” It hopes to reduce “segregation” and promote equal opportunities regardless of circumstances. Canada has followed suit but followed the concept of “employment equity” which works to treat people the same but accommodate to “special measures” . In the UK, the Equality Act 2010 provided provisions for “direct discrimination, indirect discrimination, reasonable adjustment and victimisation” but has only included “very limited provisions for affirmative action.”

In addition to this, many educational institutions around the world have acknowledged that spaces in prestigious institutions are taken up by middle class or upper-class families who would have had access to better education and training before taking these entrance exams . Therefore, they have established quota system’s dedicated to the disadvantaged groups. The Indian Institutes of Technology which quickly grew to become one of the best institutions in the country had “approximately 50 candidates for a seat.” But blocked “22.5%” of those seats for the disadvantaged group for the following reasons above. Similarly, the Sciences Po which is also one of the most prestigious institutions in France established a “special admission program” where a certain percentage of seats are reserved for “candidates coming from poor suburbs of French cities.”

There are however strong supporters against affirmative action as it is a jump too far for a system that isn’t as bad as it seems. It is argued that the level of discrimination is not damaging enough “to justify such an aggressive policy.” The functions and benefits of affirmative action are understood but it is argued that the Equality Act 2010 is already in place which protects the “protected characteristics” from being discriminated so there is no need for an additional method. However, Opportunities Knocked? Revealed that “black male graduates earn £7,000 less than white men on average” . This demonstrates that current legislation present are not enough to tackle this wide spread issue. MP David Lammy states that “UK needs a heavy dose of affirmative action on race.” He recognises that most who are against affirmative action are usually “white, upper-middle class man, broadly centre-right, who has said ‘it’s got to be on merit.” Affirmative action is not intended to dilute credibility or talent but is it rectifying “an imbalance” to ensure everyone and not just a specific group benefits from the actions they perform.

No two individuals or groups are the same and not in all circumstances will equality of treatment work. Some groups need a higher stool to stand or more people on their team for them to achieve the same level of success that others can do. It is not their fault that they require these treatments and law makers must acknowledge this point. The end goal is equality but individual circumstances might not permit us to exercise the same treatment across the board, it the job of the law makers to adjust the method accordingly to ensure everyone reaches the end goal together. Or else, we are not really chasing equality.

In addition to supporters against affirmative action on the balance of merit, there are also arguments that the method used to achieve equality is not as clear as many hoped it would be. Equality of opportunity in itself has flaws that academics have pointed out but this section will zoom in onto affirmative action and discuss its shortcomings. There are arguments stating that affirmative action will hurt organisations more than benefit them . This is due to the fact that a person’s background “becomes just as important as their skill” in acquiring the job or place in a university. This means that skills and knowledge are diluted for the purposes of diversity. There needs to be a better path that encourages both skill and diversity to meet without compromising on equality. If organisations are doing it merely to achieve a specific quota, they might be excluding great performing candidates in the name of achieving equality for all which contradicts the original aim which is to achieve equality. One case that highlights this is “Regents of the University California versus Bakke.” Bakke claimed that his rejection for two years was unwarranted as candidates performing worse than him received an offer because “they belonged to the African-American minority.” And claimed it was “reverse discrimination”. The court’s ruling against Bakke demonstrates that if not careful, Affirmative Action will turn into another method that breed the growth of inequality. The goal here is to find a solution, not merely react to a problem. Another argument put forward is that it reinforces a specific stereotype. Employing a woman for a job normally given to men does not increase her credibility in the workplace. Instead, she will be further frowned upon because colleagues do not trust and respect her credibility, they presume that her position was granted to her based on her gender rather than her credentials. At this speed, we are creating problems faster than we are solving them.

So far, this essay has introduced and explained the concept of formal theory and why it is inadequate in dealing with the complexities of discrimination. To remedy this situation, substantive equality has been introduced in hopes of rectifying the issues but as can be seen, substantive equality also has issues of its own and if not careful, it might open another can of worms that society will have to work towards closing. However, the gaps of formal equality are not one to be ignored, real lives are affected by this legislation and the severity of some of the cases are a cry for help for law makers to acknowledge this and make a change towards equality. This is in no way implying that formal equality should be discarded in replacement for substantive equality, it is arguing for the co-operation of both to hopefully help achieve equality on a larger scale. However, this is not to say that substantive equality is the solution. The disadvantages discussed above highlight the flaws that prevents this system from fully eliminating discrimination. A new method has been identified In hopes of furthering equality but it does not mean that it is immediately the answer to all problems of discrimination. It is more “sophisticated” but it has issues that need to be resolved before it considers itself a miracle worker. For now, as many academics agree, having both the formal and substantive approach work together hand in hand is the best outcome in furthering the goal of equality.

In conclusion, this essay has introduced and expanded upon the workings of formal equality. It has then introduced and explained substantive equality and how it is the upgraded version of formal equality in bringing society closer towards equality. It has also balanced this argument out by identifying inherent flaws of substantive equality that prevents it from being a tool to fully eliminate discrimination. This essay has reaffirmed the stance that it is not advocating for the abandonment of formal equality but rather a union with substantive equality; this method as affirmed by academics would complement both methods and bring us closer in achieving equality.

16 December 2021
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