Positive action

2010

to prevent or compensate for existing disadvantages under the terms of Section 5 of the General Equal Treatment Act

- Factsheet on the research project -

What is positive action?

Positive action includes all measures aimed at guaranteeing complete and efficient equal opportunities for all members of society who are disadvantaged or have to suffer from the consequences of past or present discrimination in any other way.

Examples of positive action in the field of labour are

  • Purposeful recruiting methods and scholarships for disadvantaged groups of persons,
  • Implementation of diversity training programmes at companies,
  • In-plant agreements to promote diversity within the workforce,
  • Preferential employments of disadvantaged groups of persons and management by objectives,
  • Flexible quota arrangements.

Examples of positive action in the field of goods and services are

  • Special conditions of soft loans to disadvantaged groups of persons,
  • Quotas of allocation of housing preferably to disadvantaged persons,
  • Special opening hours in public baths.

What are the legal prerequisites?

According to Section 5 of the General Equal Treatment Act, positive action shall be permitted where the purpose and the proportionality of the respective action meet the requirements of admissibility. The purpose of positive action shall comprise prevention of and compensation for existing disadvantages at a company, in a region, a branch of industry or with regard to the entire situation of society as a whole. Moreover, the proportionality between the extent of existing de facto disadvantages and the adverse effects on persons who have to take second place has to be measured.

This means:

  • Even in case of equal qualifications, the preferred candidates must not be given absolute priority.
  • In concrete, individual cases an objective evaluation has to be made, also taking into account the special and personal situation of those who are not preferred. 
  • When balancing these aspects, one has to consider both, the type of position, goods or services as well as the question as to whether these are available on the free market.

Further development of legal framework required

Section 5 of the General Equal Treatment Act only permits the implementation of positive action. However, in the opinion of the authors this is not sufficient. According to them, there is a lack of legal obligations and incentives reaching beyond the promotion of women and disabled persons in the public service. Other European countries have already introduced a more mandatory system, as for example by laying down obligations of promotion.