There are certain situations when preferential treatment is given to persons with particular characteristics who are in a disadvantaged position. This is usually done to correct inequality existing in practice. Preferential treatment in these situations will not be considered to be discriminatory.
Positive action can be seen in situations, when steps are taken to help or encourage certain groups of people who, due to historic, economic or other reasons, are disadvantaged in access to work, education, and training. Such preferential treatment is aimed at correcting inequality that exists in practice. Positive action is also sometimes called "positive discrimination". However, the Slovakian legislation as well as the administrative practice meticulously avoids the term "positive discrimination" and, uses instead the concept of "temporary equalising measures".
Employers can take positive action to help people or specific groups if they are disadvantaged in some way in relation to work, or they have particular needs which are different from other people not belonging to that group.
example A university can take some initiative to stimulate women to apply more for certain subjects, such as technology, where women are often under-represented. A large company may also conduct a special employment programme aimed at hiring more employees from the Romani community.
"Temporary equalising measures” in the Slovakian law
The Slovakian law allows for positive action (temporary equalising measures) only in respect of racial or ethnic origin, belonging to national minority or ethnic group, sex or gender, disability and age. According to the law, temporary equalising measures, in particular, are measures
- aimed at elimination of social or economic disadvantages, by which members of disadvantaged groups are disproportionately affected
- consisting in encouraging the interest of members of disadvantaged groups in employment, education, culture, health care and services
- aimed at creation of equal access to employment, education, healthcare and housing, especially through targeted training programs for members of disadvantaged groups or by spreading information on these programs or on opportunities to apply for jobs or jobs in the education system
Requirements for application
To apply the exception of positive action, the choice and need for such policy must be explained, the measures used have to be proportionate and such a policy needs to be announced in advance.
example The exception of positive discrimination would not have been applied correctly if an employer had refused to employ a better qualified man to give preference to a less qualified woman, if the policy to give preference to women had not been announced in advance.
“Temporary equalising measures” in the administrative practice
According to the Slovakian law, positive action (temporary equalising measures) may be adopted only in the areas falling under the material scope of the Anti-discrimination Act (i.e., employment and occupation, social security and benefits, healthcare, access to and provision of goods and services including housing, and education) and, if
- obvious inequality exists
- the aim of such measures is to decrease or eliminate this inequality
- temporary equalising measures are appropriate and necessary to achieving the aim set
Such measures shall terminate once the inequality, which lead to the adoption of these measures, is eliminated.
Since the adoption of the amendment of the law in 2013 allowing “temporary equalizing measures” there has been scarce evidence of their application in practice by competent bodies. Even if such measures have been applied, they were very rarely identified as such. One of the positive examples to be mentioned was a project run by the Plenipotentiary for Roma Communities in 2019 that aimed at preferential employment of Roma persons as teachers‘ assistants in kindergartens.
A special type of positive action is provided by the Slovakian law in the form of quota system for employment of persons with disabilities. If an employer employs at least 20 persons, he or she is obliged to ensure that at least 3.2 per cent of them are made up by persons with disabilities provided that the labour office has such job seekers in its register or, as an alternative, the employer should buy goods or services from a sheltered workplace or a self-employed person with disability.