Wanneer antidiscriminatiewetten deel zijn van het probleem : over macht, gender, affirmative action en het recht

Both feminist and critical race legal scholars have delivered similar but different critiques on the principle of equal treatment in the US legal context. They argue that treating likes alike and unlikesdifferently may, in fact, reproduce inequality. In a first part, this article joins their insights. In this way, itaims to deliver a more general critique on how equality law that rests on the principle of equal treatment legitimizes certain power structures as well as the inequalities that these dynamics produce. In a second part, this article applies the critique to the European context. Through a critical deconstruction of the European Court of Justice’s (CJEU) case law on positive action, it becomes apparentthat EU equality law, as currently interpreted by the CJEU, is part of the problem it nevertheless tries to solve. Both when it mandates equal treatment between memb ers of privileged groups and members of subordinated groups, and when it allows for different treatment of these groups, current EU equality law upholds the status quo of inequality by making power structures invisible and making it harder for Member States to act against the resulting inequality