Reverse discrimination

Since the mid-1970s, when the policy of positive discrimination began to gain popularity, reverse discrimination began to appear primarily in the field of employment and education . Here a narrow understanding of reverse discrimination has formed as unequal treatment of whites or men .

A case in point is the lawsuit against the New Haven City Fire Department in the United States , which refused to promote White in order not to offend racial minorities. Four Supreme Court judges voted against the plaintiffs, five in favor. Judge Anthony Kennedy, who supported the plaintiffs, argued: “The fear of litigation alone cannot justify the employer's decision to use race to infringe on the interests of those who have passed the exams and are certified to be promoted.” The liberal judge who voted against the lawsuit, Ruth Bader Ginsburg , a well-known advocate of minority rights , said the harm to such a decision (which pointed out to employers the inadmissibility of encouraging minorities just because they were not white) would be "invaluable." However, such judicial precedents in the United States are very rare and the idea of ​​atonement for the “historical guilt” of whites continues to exist ^[4] .

It is difficult to prove cases of reverse discrimination in the workplace as a consequence of positive discrimination measures. This is due to the fact that positive discrimination measures through the creation of advantages in hiring people who are disadvantaged in the past are not directly indicated in the legislation, but are presented as an opportunity. This opportunity is realized through an appeal to the court, whose decision already prescribes measures against restricting the rights of vulnerable groups if facts of their discrimination in the past or present have been proven for a particular organization. As a result, employers, fearing litigation, in each corporate document emphasize the provision of equal opportunities to all groups and make decisions taking into account existing legal opportunities and precedents for providing benefits for previously discriminated groups. Based on this practice, it is concluded that the relationship of reverse discrimination in the workplace with measures of positive discrimination is a myth . The popularity of this myth is interpreted as an attempt by white men to justify the loss of their benefits due to the fact that employers now pursue a policy of non-discrimination based on skin color , and women do not prioritize their families over careers ^[1] .

Indeed, the provision of additional opportunities for women, national minorities , people with disabilities , the elderly and other “weak” groups is less and less directly expressed. Positive discrimination measures are becoming less radical and more hidden. For example, through financial incentives in the form of loans , grants and contracts from public authorities. But from this positive discrimination measures do not lose their potential for situations when a less qualified or less needy representative of the majority, the minority is in a better position. For example, quotas are replaced by “guidelines” in the selection of staff and students, which blurs the line between the areas of public and private law and provides grounds for judicial protection of a managerial decision as an opinion rather than a fact . An analysis of the anti-discrimination laws of the USA and European countries shows that there are two directions in positive discrimination to justify reverse discrimination in the workplace ^[5] :

1. “1+” principle - when hiring or promoting a workplace, all other things being equal, preference is given to women, members of minorities or persons with disabilities;
2. the principle of "diversity" - the hiring and promotion of people from different ethnic groups and social environments to overcome their marginality .

At the same time, for example, in the USA, according to data for 2012, 86% agreed that “we must do everything necessary to make sure that everyone has equal opportunities for success,” and only 33% agreed that “we should do everything possible to improve the situation of blacks and other minorities, even if it means giving them preferences ” ^[6] .

Due to the fact that in liberal countries and international law the level of protection of a person and citizen from discrimination is increasing, the existence of reverse discrimination is recognized as inappropriate to modern society ^[7] . Reverse discrimination is becoming a global problem . At this level, a broad understanding of reverse discrimination has formed, not limited to the appearance of a person and related to the diversity of his identities . So, in 2009, Americans indicated that the conflict between immigrants and people born in the USA was the strongest - 55%, slightly less than half of the respondents noted the strength of the conflict between rich and poor - 47%, four out of ten consider the conflict between white and black to be serious - 39%, and a quarter of the respondents named conflict between young and old as the main - 26% ^[8] .

The countries receiving migrants to solve the problem of the demographic crisis are interested in those who arrive for permanent residence, respect the country's historical values , recognize the authority of the authorities and strive to become part of society . But despite the measures taken for this, part of the migrants form closed communities , where their laws and customs are traditional, often based on religion, especially Islam . Such migrants demonstrate their disloyalty to a liberal state. For example, there is a significant number of Muslims who prefer the latter in choosing between liberal values ​​and Sharia norms: such in Norway - 14%, in the UK - 30%, in France - 54% ^[9] . This is a violation of the basic principle of Western civilization on the rule of law over religious rules. Disloyalty to a liberal state, which provokes the justification of violence in the name of religion , casts doubt on the policy of multiculturalism , since “neither religion nor culture can be accepted as an excuse for abandoning the rule of law” ^[10] . Therefore, liberal law does not legally formalize the status of majority identity . There is no practice of the majority right to self-determination .

In response to the demonstrative disloyalty of some migrants, a negative public reaction to the increasing attempts by politicians and activists to spread the practice of positive discrimination to migrants who have personally never been discriminated against in the country where they arrive at will is intensified. In media reality, part of the left-wing spectrum of political forces propagates a radical demand to criminalize disagreement with positive discrimination for migrants, calling this opinion an incitement to " fascist " actions. According to Paul Gottfried , supporters of repressive tolerance , using journalistic, judicial and bureaucratic means to eliminate the majority dictatorship , “require draconian measures against politically incorrect male white Christians ” ^[11] . Such pressure on society was made possible because the third and “ fourth ” authorities - the courts and the media - as important instruments of democracy can be used for an undemocratic purpose to establish the dictatorship of the minority , because “these two systems are not elected by citizens ... Therefore ... the majority does not get representation , although it selects representatives through democratic elections ” ^[12] .

According to Leonid Ionin , all the definitions of the majority presented in the institutions of modern society ( rational science , capitalist economics and political democracy) are too narrow and negative, since the majority is defined in different ways by discriminated minorities: in relation to women - these are men, to black - whites, those with disabilities — healthy , etc. At the same time, the number and diversity of minorities is growing and, if the observed trends continue, will continue to grow in the future. This became possible because the institutions of a democratic society that were formed in the modern era by contrasting tradition stand on the side of minorities, resisting minority initiatives (for example, not allowing gay parades ) only in cases of shocking manifestation of moral relativism . The activation of minorities and the growth of their influence are a symptom of a movement towards new forms of social organization and social morality , since “minority rebellion is, in essence, a rebellion against morality”, legitimized by political correctness ^[13] .

Liav Orgad ( Liav Orgad ) proposes to protect the identity of the majority is not a special legal definition, but through laws on immigration and naturalization . He makes this proposal as a conclusion based on a study of the migration policies of liberal countries seeking to limit the influx of migrants in order to preserve their cultural identity. From the standpoint of democratic liberalism, Orgard criticizes the practice of some countries, pointing out that the applied "illiberal" methods violate protected principles and discriminate against the majority.

The majority is understood as that part of the population that cannot be attributed to minorities and constitutes the pillar of the existing law and order , as it understands, accepts and preserves the national idea of ​​the state. Orgad, as a consistent liberal, speaks of the same, as for minorities, the right of the majority to self-determination (autonomy) and the protection of the rights of the majority derived from it - their identity, history, state and way of life. Therefore, in order to achieve migrants' loyalty to a liberal state, Orgad proposes to narrow the loyalty field to the adoption of the principles of national constitutionalism - for people seeking to change citizenship , it is proposed to study the basic issues of the constitutional structure of the new homeland and make a responsible decision on whether to agree with these principles or abandon them. The protection of the rights of the majority is transferred from an indefinite sphere to the field of clear legal norms : the condition for admitting a person to the territory of the state is understanding and recognition of liberal constitutional principles in general, and the condition for naturalization is recognition of the fundamental constitutional principles (system of values ​​and criteria of legality and justice ) of a particular state .

In normal condition, most do not need protection. But in current conditions, when the collective rights of minorities are formally fixed, and the rights of the majority are not represented in special legal norms, there may be a need to balance the situation. Protection of the rights of the majority, according to Orgad, is justified in the following cases: an endangered majority; minority majority in the region; majority-victim - this is the designation of a national majority that is constantly subjected to persecution; majority-minority - a designation of the majority, perceiving itself for various reasons as a national minority and experiencing fear for its continued existence ^[9] .

The question posed by the Orgad about protecting the rights of the majority may not be limited to protecting ethno-confessional identities, which the author of the new concept focuses on. The proposed concept of protecting the majority from discrimination can also extend to the preservation of sexual and gender identity , since, according to Yevgeny Kozhokin , the sexual majority is heterosexual and does not doubt that civil marriage is a family relationship between a man and a woman. Based on this, the legalization of other forms of marriage can be considered as a threat to the natural reproduction and preservation of ethnic groups ^[14] . A global study of public opinion on moral issues showed that 59% of respondents consider homosexual relations to be morally unacceptable, and 20% - acceptable. For example, in Russia it is 72% and 9%, respectively ^[15] .

However, a protest , for example, against the state registering same-sex marriage is unpromising from the perspective of human and civil rights. The fact is that the subject of these rights is a person who has neither skin color, nor nationality , sex , profession , or other positive (not through denial ) definitions, except that he is a person ^[13] . According to political scientist E. M. Shulman, in the Family Code of the Russian Federation, a family is determined not by the sexual behavior of its members, but by joint farming: there is no economy, there is no family, therefore, “legalization of same-sex marriage in Europe and in the USA is just not progressive, but conservative a step aimed at supporting the institution of the family, which is at risk " ^[16] .

An example of reverse discrimination based on sexual and gender identity is the decision of the London Court of Appeal , which denied the heterosexual couple registration of a civil partnership - legal status in the UK that allows you to not enter into a traditional marriage and get all the legal rights provided for the family union. The court ruled that the condition for entering into a civil partnership is the same sex of the spouses. At the same time, the judges noted that this condition potentially infringes on human rights ^[17] .

A new form of discrimination against the majority that changes the role of parents can be editing the genome of the embryo and the appearance of “designer children” as children with qualities set by the will of parents. The development of reproductive innovations that create new foundations for social inequality can irreversibly change family relationships and gender identity ^[18] . The United States also joined China , Sweden, and Great Britain as countries in which genome editing is allowed ^[19] .