The shortcomings of the formal equality precept have led to a search for more substantive concepts of equality in which equality of outcome and the positive elements of equality of opportunity are the focus rather than equal treatment1. In contrast to formal equality, substantive equality is a call for a duty upon the state to take positive measures to promote equality2. Looking back at the conceptions of formal equality of opportunity, it has been made clear that there is a leaning towards substantive positive measures, such as the removal of obstacles such as word-of-mouth recruitment, age limits or unjustifiable testing, which would be substantive in nature. However, Fredman acknowledges that this does not guarantee that the disadvantaged will be in a position to take advantage of these opportunities; those who lack the requisite qualifications as a result of past discrimination will still be unable to meet job-related criteria, for example3.
Thus, substantive equality is concerned with what lies outside the lens of formal equality; the actual distribution of resources, opportunities and choices within a society. Substantive equality involves what Bakan calls social equality, whereby legislators enact laws for a society that already has unevenly distributed its social goods, such as money, choices, recognition and status. Every new law affects that distribution. Accordingly, an assessment of whether a law promotes or retards substantive equality requires looking at people’s economic, social and political circumstances at the existing distribution of resources and asking how the impugned law affects them4. In other words, we cannot assess whether a policy promotes or impedes substantive equality without examining people’s circumstances independently of the words of the law itself5.
Vickers puts forwards three models of the substantive concept of equality: the link between equality and individual dignity and identity; focusing on disadvantage and distribution; and as a means of addressing social exclusion and promoting participation6. Fredman sets out four specific aims of substantive equality as follows: to break the cycle of disadvantage7 associated with out-groups8, 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 society9.
While the advantages of substantive equality over formal are well documented, including the fact that it has normative content and recognises that special treatment may be required in order to take into account special characteristics10. On the other hand, the standard of measure remains the dominant culture, and it is still unclear when or what special characteristics would be entitled to special treatment. Conversely, such special treatment is an exception to the rule and has the effect of upholding the status quo, rather than subjecting general social structures to change to ensure equality. Finally, there is still a reliance on individuals to enforce their rights through the courts11.
It has been mentioned that substantive equality involves an element of redistribution. There is much dispute as to when and to what extent redistribution is justified, which has been a major concern of political philosophers such as Rawls, Sen, Dworkin and Cohen12. In particular, it is argued that equality of outcome is inherently linked to the redistributive justice model and the achievement of a fairer distribution of benefits13. Thus, positive measures aforementioned can include the allocation of resources, resulting in a direct redistribution of resources and benefits14, and Schiek, Waddington and Bell argue that the aim of substantive equality starts not from a theory of law, but rather from a theory of justice, hence the association of the distributive justice concept with substantive equality, although Fudge considers the redistributive potential of equality rights to be quite small15. Nonetheless, Fredman suggests that implementing substantive equality measures often protects states from having to justify distributive distributions16. One way in which states commit themselves to achieving substantive equality outcomes is to provide for disadvantaged groups by way of welfare, making a political statement to develop the positive duty to provide in the process17.
Albertyn and Goldblatt believe that disadvantage and difference are core characteristics of substantive equality, and argue that equality should be defined in terms of these central elements of the concept, rather than in terms of dignity18. Indeed, it is argued that substantive equality aims to remedy the deficiencies of the difference model of equality19.
- Lucy Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 147.
- Aileen McColgan, Human Rights Law in Perspective: Discrimination, Equality and the Law (Bloomsbury 2014) 22.
- Sandra Fredman, ‘Providing Equality: Substantive Equality and the Positive Duty to Provide’ (2005) 21 South African Journal on Human Rights 163, 167.
- Donna Greschner, ‘Does Law Advance the Cause of Equality?’ (2001) 27 Queen’s Law Journal 299, 303-4.
- ibid 304.
- Vickers (n 1) 147.
- 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).
- 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 2) 1).
- Sandra Fredman, Discrimination Law (1st edn, Oxford University Press 2002) 167.
- Maria Ventegodt Liisberg, Disability and employment: a contemporary disability human rights approach applied to Danish, Swedish and EU law and policy(Intersentia 2011) 28.
- Bob Hepple, ‘The Aims of Equality Law’ (2008) 61 Current Legal Problems 1, 14.
- Equal Rights Trust, ‘The Ideas of Equality and Non-Discrimination, Formal and Substantive Equality’ (2007) http://www.equalrightstrust.org/ertdocumentbank/The%20Ideas%20of%20Equality%20and%20Non-discrimination,%20Formal%20and%20Substantive%20Equality.pdf accessed 27 April 2017.
- Judith Fudge, ‘Substantive Equality, the Supreme Court of Canada, and the Limits to Redistribution’ (2007) 23 South African Journal on Human Rights 235.
- ibid 244.
- Fredman (n 9) abstract.
- ibid 164.
- Cathi Albertyn and Beth Goldblatt, ‘Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’ (1998) 14 South African Journal on Human Rights 248, 257.
- Vendegodt Liisberg (n 10) 47.