Substantive equality

In contrast to formal equality, substantive equality is a call for a duty upon the state to take positive measures to promote equality, including allocation of resources1, resulting in a direct redistribution of resources and benefits2, although Fudge considers the redistributive potential of equality rights to be quite small3. Fudge outlines further options: it shifts the focus away from equality to discrimination, or brings it closer to social rights which impose positive obligations on the state to provide benefits or services4, the addressing of disadvantage and the protection of human dignity (although Fudge argues that a focus on dignity requires a focus on discrimination, which narrows the ambit of substantive equality5 and social rights6 ). Vickers puts forwards three models of the substantive concept of equality: the link between equality and individual dignity and identify; focusing on disadvantage and distribution; and as a means of addressing social exclusion and promoting participation7.

In the UK context, the duty to make reasonable adjustments8 and the positive duties provisions within the EqA 2010 are examples of substantive equality, in that they impose a duty on the public (as well as private in the case of reasonable adjustments) sector and employers to take steps to promote equality. Fredman thus sets out four specific aims of substantive equality as follows: to break the cycle of disadvantage9 associated with out-groups10, to promote respect for the equal dignity and worth of all to redress stigma, stereotyping, humiliation and violence due to membership of an out-group, to positively affirm and celebrate identity within community, and to facilitate full participation in society11.

  1. A McColgan, Human Rights Law in Perspective: Discrimination, Equality and the Law (Bloomsbury 2014) 22. []
  2. J Fudge, ‘Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution’ (2007) 23 South African Journal on Human Rights 235, 235. []
  3. ibid, 244. []
  4. ibid 238-9. []
  5. ibid 241. []
  6. ibid 242. []
  7. L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147. []
  8. EqA 2010, s 20. []
  9. A disadvantage can be considered an unfavourable circumstance or condition that reduces the chance of success or effectiveness (Oxford Dictionaries, ‘disadvantage – definition of disadvantage in English from the Oxford dictionary’ [http://www.oxforddictionaries.com/definition/english/disadvantage] accessed 9 September 2015).
    []
  10. It is argued that the Deaf-World is considered an ‘out-group’– to coin the term utilised by Fredman – as she also refers to an ‘out-group’ as a ‘disadvantaged group’, and it will be made clear in this chapter how (McColgan (n 1) 1). []
  11. S Fredman, Discrimination Law (Oxford University Press 2002) 167. []

Rob

Deaf, hubby to Rachel, dad to Corey, Libby and Emily, Solicitor, Lecturer in Legal Practice at University of South Wales, PhD student at University of Leicester.

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