Chapter 37. EQUAL RIGHTS

A. Treaty Articles and Basic Concepts

• Art. 141 (ex 119) as amended by Amsterdam , p. 1424 (original art. 119 p. 1425)
• see also arts. 137-140 (ex 117-118), in handout from beginning of semester
• do these provide an economic protection, or a general human rights protection?
• New art. 13: is it limited to economic opportunity?
• DEFRENNE reviewed - direct effect of ex art. 119
• "Horizontal effect"?
• Prospective only?
• does the principle apply to social security benefits? n. 4 p. 1427
 
B. Equal Pay for Women and Men
• The Equal Pay Directive of 1975, Dir. 75/117 (Doc.Supp. p. 719)
• Defining the Concept of "Pay"
• Art. 141(2) (ex 119(2))
• How should these be treated (p. 1429)?
• Annual bonuses
• Commissions based on sales
• Paid leave to care for a sick child
• Christmas or holiday gifts
• Handling of Indirect Discrimination: when is a facially neutral practice discriminatory?
• "Part-time worker", where most of these are women
• JENKINS, p. 1430 (1981)
• BILKA-KAUFHAUS GmbH v. VON HARTZ, p. 1432 (1986): what standard does the Court apply?
• Kowalska, n. 5 p. 1434 (ECJ 1990)
• Night shift workers higher paid, where most day-shift workers are women: Corning Glass Works, n. 4 p. 1434 (US 1974)
• U.C.C.E. V. DANISH EMP'ER'S ASS'N ex parte DANFOSS, p. 1434 (1989): "mobility", "special training", "length of service" as pay-scale factors: who bears the burden of persuasion, when men make almost 7% more than women overall?
• "Maternity leave": GILLESPIE, n. 8 p. 1438 (1996)
• Determining Work of "Equal Value"
• MURPHY V. BORD TELECOM EIREANN, p. 1439 (1988): if employer admits that a classification of workers comprising mostly women gets lower pay, but does higher-value work than another comprising mostly men, does art. 119 apply?
• ENDERBY V. FRENCHAY HEALTH AUTHORITY, p. 1441 (1993)
• Where two categories of worker which get disparate pay are determined by separate collective bargaining agreements, does art. 119 apply?
• What constitutes a "prima facie case" of discrimination?
• If one is made, who bears the burden of persuasion?