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Equal treatment approach in EU gender equality law

Discuss about the Common Market Law Review for Gender Volume.

During the recent years, three main approaches have been adopted by the EU in order to improve the situation of women. For understanding these developments, the case law of the CJEU regarding positive sex determination under the European Union law needs to be evaluated. The European Economic Community was mainly concerned with creating a common market and removing barriers placed on the mobility of labor and capital and goods and services. The gender equality issues did not find a prominent place in initial framework of EEC. However, the principle of equal pay for equal work was a part of social policy section under Article 119, Treaty of Rome. The equal treatment approach provides the basis for this principle. Later on, from 1975, a series of directives were adopted in order to clarify and incorporate the principle in the EU law.

In this context, discrimination takes place when two parties, in the same position are treated in a different way or when same treatment is provided to the parties that are in different situations. It was mentioned in the verdicts of the European Court of Justice in G. Defrenne v. Belgian State,[1] and Bilka-Kaufhaus GmbH,[2] that anti-discrimination measures included the prevention of direct as well as indirect discrimination. There are two elements present in this regard; harm and causation as a result of detrimental treatment on the basis of gender. The main focus of equal treatment approach is on labor market and it has faced strong criticism as it overlooked inequality that was present in other social circles.[3] Similarly, it has been proved by the case law that although the approach has been successful in changing behavior and preventing overt forms of discrimination, but it failed in providing a fair protection, when it comes to indirect discrimination? It is also believed that the approach of equal treatment tries to maintain the present practices of "oppressive power relations". Hence, the approach promotes the view according to which the major focus of equal treatment legislation is on incorrect behavior of some intolerant individuals instead of achieving social transformations at a wider scope.[4]

Direct discrimination: direct discrimination takes place when a person is treated less favorably on account of sex as compared to the other person, as the person would have been treated under similar circumstances.[5] Therefore, in other words, direct discrimination takes place when the above-mentioned conditions are satisfied; because of the quality should be sex, and the treatment received by the person should be less favorable as compared to the treatment received by any other member of the opposite sex.


Indirect discrimination: Bilka case[6] was the first case in which indirect discrimination was found by the court on account of gender. It was stated by the court that the policy of granting an occupational pension to full-time workers only is against Article 119, Treaty of Rome. The reason was that, much less women were working full-time as compared to men and the measure was not able to be explained by the factors that would exclude discrimination on account of gender. Therefore the court stated that only objectively justified economic grounds can be considered to be within the scope of the factors that can be used for justifying discrimination.[7] At present, the definition of indirect discrimination is present in the Article 2.2b.[8] According to this directive, indirect discrimination may take place in a situation where there is an apparently neutral provision, criterion or practice that places a person of a particular sex at a disadvantage as against the persons of either sex, unless such provision, practice or criterion can be justified objectively through a legitimate aim and the means of achieving such objective can also be described as necessary and appropriate.

Direct discrimination and its conditions

In this regard, the European Court of Justice has provided a number of tests for the purpose of finding the objectively justifiable provisions, practices or criteria. For example, the ruling delivered in Bilka case stated that the criteria of objective justification to the disadvantageous practices of a particular employer are satisfied when such measure corresponds with the real need of the undertaking, are appropriate for the purpose of achieving the objective in question and also necessary for this objective. The means that have been selected for achieving the policy should not aim at discrimination against women. The test provided in Seymour-Smith[9] is valid, not in cases related with individual discriminatory practices adopted by the employers as in Bilka but regarding statutory employment provisions of the member nations. It needs to be noted that this test is more relaxed as compared to the test provided in Bilka. The reason is that this test provides for greater leeway for the countries to select and adopt the rules that may be disadvantageous for the woman, but satisfy the legitimate claims of social policy. Therefore, in other words, the test will be considered for this slide whenever there is an unfavorable legislative provision which reveals a necessary objective of social policy and it is suitable and necessary to achieve such objective. However it needs to be noted that the issue of social policy is relevant for the member states. Therefore the member states retain a wide margin of discretion so long as the provision does not result in frustrating the implementation of a sick principle of the EU law that is equal pay for men and women.

However, the reasoning provided in Bilka will not be applied by the court consistently regarding the objective justifications. There are some cases where the measures taken by the employer arguably should not be justified and as a result, the strict test provided in Bilka was avoided.


Positive action: The anti-discrimination approach faced global criticism for a long time. The public opinion was in favor of substandard inequality model related with gender issues. During the early 1970s, the member states of the EC broadly recognized the need for having a more comprehensive model related gender equality is compared to the simple non-discrimination approach.[10] The Court also stressed upon the need for "positive" intervention in all fields extending beyond the labor market. The result was that the first provision in EU legislation was included in the Equal Treatment Directive[11] in article 2.4 including the first provision related with gender-based positive action measures. As mentioned by Franciscus (2004), equal treatment can be described as a situation where no person has fewer opportunities on human rights as compared to the other persons. On the other hand, active promotion or in other words, positive action is related with the adoption of particular actions on behalf of women, for the purpose of overcoming the unequal starting positions in a patriarchal society.[12] In its extreme form, positive action may be present in the form of positive discrimination, which aims at increasing the participation of women and for this purpose uses affirmative action preferences. The gradual shift towards a simple equal treatment to positive action approach can be seen in the judgments of the ECJ in cases like Marschall.[13] In this case, the ECJ has stated that even where the male and female candidates have equal qualifications, the male candidates are generally promoted as compared to the female candidates on account of the stereotypes and prejudices related with the role and capacity of women in working lives and also the fear that women are more interruptions in the careers, owing to their family and household duties, they are going to be less flexible in their working hours or the fear that the woman will remain absent homework more frequently as a result of pregnancy, childbirth or breast-feeding. Due to these reasons, when the female candidates have equal qualifications it does not mean that they also have equal chance.[14]

Indirect discrimination and the Bilka case ruling

In this way, in Marschall, the Court confirmed the right of the member states to take equality action measures in this regard. Moreover, the Amsterdam Treaty also affirmed this principle according to which the member states have a right to adopt positive action measures that are mentioned in articles 3.2 and 141.4 TEC. Moreover, at present the New Equal Treatment Directive also allows the member states to take positive actions. In this regard, the following provision states that the member states may maintain or adopt the measures falling under Article 141.4 for the purpose of ensuring full equality in practice in working life of men and women.

As compared to the equal treatment approach, in case of the positive action model, the emphasis shifts from the equality of access to the creation of conditions that are likely to result in the equality of outcome. Therefore, as mentioned above, any form of action can be included in positive action that is designed for the purpose of promoting and benefiting a disadvantaged group. As a result, a wide range of policies and initiatives are covered by it.[15] In its most extreme form it may transform into positive discrimination or giving preferential treatment that has also been allowed under certain circumstances in the USA under the framework of affirmative action. As compared to the positive actions, in case of affirmative action a wide range of measures are involved, as well as in some cases, it allows for the infringement of the principle of equality. Such measures are much more decisive and result oriented as compared to the measures taken in case of positive action.[16] For these reasons, such measures result in creating more favorable conditions for the disadvantage groups.

In case of the European Union, there is still hope for positive actions in their restricted meaning only. The purpose of these actions is to level the playing field for all the players and act in favor of traditionally discriminated categories of individuals and for this purpose to allow them to compete on equal footing but not to make the promise of victory.[17] There are several techniques available under the positive action approach like educational opportunities and special training. These techniques are not invasive and therefore they are close to the goal of substandard equality. The unequal situation needs to be corrected, but at the same time. Individuals should not be placed out of the protected groups in worse cases.


Problems related with positive action: there are certain problems associated with the application of positive action approach. Therefore, the first problem present in this regard is related with the fact that the use of the mechanisms of positive action is possible only if the legal framework allows for it. Regarding the domestic and EC law, indeed, it appears that there is still major equal treatment approach that has restricted the wide application of the positive action model. The same way, the second problem deals with the fact that the level and the scope of action that has been taken in different member nations is not even. Therefore the scope and application of one of the main principles of the EU can vary in different member states.[18] Thirdly, there are different shades of positive action of "soft" and the "hard" measures. The result is that the approach becomes unclear. As a result of the lack of firm stance in allowing positive action has also been recognized by the ECJ.

Ellis, Evelyn. 2000. The Recent Jurisprudence of the Court of Justice in the Field of Sex Equality. Common Market Law Review 37: 1403-1426

Elson, Diane. 2003. Gender mainstreaming and gender budgeting. European Commission, DG Education and Culture and Jean Monnet Project. ‘Gender Equality and Europe’s Future’ Conference, Brussels, 4 March 2003

Hervey K. Tamara. 2005. Thirty Years of EU Sex Equality Law: Looking Backwards, Looking Forwards. Maastricht Journal Of European and Comparative Law 12 (4): 307-26

Hervey, Tamara, and Jo Shaw, eds. 1998. Women, Work and Care: Women’s Dual Role and Double Burden in EC Sex Equality Law. Journal of European Social Policy 8 (1): 43-63

Knop, Karen, ed. 2004. Gender and Human Rights. Oxford: Oxford University Press

Kravetz, Diane, and Jeanne Marecek. 2002. The Feminism Movement. In Encyclopaedia of Women and Gender; Sex Similarities and Differences and the Impact of Society on Gender Volume 1, 457-68. London: Academic Press

Lenaerts, Koen, and Piet Van Nuffel, eds. 2005. Constitutional Law of the European Union, Sweet & Maxwell

Mariagrazia, Rossilli. 2000. Gender Policies in the European Union. New York: Peter Lang Publishing

Mathijsen, Petrus Servatius Renoldus Franciscus. 2004. A Guide to European Union Law. London: Sweet & Maxwell

Case law

Abrahamsson et al., Case C-407/98

Bilka Kaufhaus GmbH v. Vewebr von Hartz, Case C-170/84

Bilka-Kaufhaus GmbH, Case C-170/84

ECJ, G. Defrenne v. Belgian State, Case 80/70

Marschall, Case C-409/95

Seymour-Smith (Seymour-Smith, Case C-167/97

Legislation

Article 2.2b, New Equal Treatment Directive

Directive 2006/54/EC

Directive 76/207/EEC

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