Ch. 34. EQUAL RIGHTS FOR WOMEN

C. Equal Treatment for Men and Women

1. The 1976 and 1986 Equal Treatment Directives

Legal foundation for these directives, on discrimination other than in respect to pay

• ex art. 119: DeFrenne (1976) (pay only, and direct discrimination only, though horizontal direct effect!)
• ex art. 235 (chosen by Council): catch-all for achievement of art. 2 objectives

76/207, DocSupp. 722 (Equal Treatment Directive, ETD)

• scope:, art. 1 (access to employment and promotion, vocational training, working conditions, social security)
• core prohibition: direct discrimination on grounds of sex, or indirect discrimination by reference to marital or family status (art. 2(1))
• exceptions, art. 2(2-4):
• occupations for which sex of the worker "constitutes a determining factor"
• protection of women, esp. pregnancy and maternity
• affirmative action ("removing existing inequalities which affect womens' opportunities")

86/613: extension to self-employed persons, including partners in firms

Commission v. UK, n. 1 p. 1445 (1983): no threshold size required or permitted, or private household exception, by comparison with U.S. Title VII - why not?

No horizontal direct effect of the directive, unlike art. 119 itself - what then is a governmental agency against which discrimination claims can be asserted? N. 3 p. 1446

• government as entrepreneur: not covered
• private entity providing a public service under control of the state: covered

"Indirect discrimination", n. 4 p. 1446: Schnorbus (2000) (men-only military, veterans preference) - cf. Feeney (U.S. 1979), preference for veterans in state jobs (1.8% female)

2. Scope of the Equal Treatment Directives

P. V. S., p. 1447 (1996): is discrimination against transsexuals covered by ETD?

• European Court of Human Rights decisions, as "general principles"!
• "gender reassignment" is covered, where the discrimination is based in part on an insistence on a fixed assignment

GRANT V. SOUTH-WEST TRAINS, p. 1448 (1998): does discrimination based on sexual orientation violate art. 119 or the Equal Treatment directive?

• does the discrimination deal with whether one is male or female?
• does P.v.S. deal with sexual orientation?
 
3. "Occupational Activities" Suitable for Only One Sex

JOHNSTON V. CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY, p. 1452 (1986). Exclusion of women from the armed component of the police force, resulting in substantial lay-offs.

• is there a general principle of Community law exempting MS public security measures from the operation of specific obligations such as gender equality?
• does this measure fall into any of the exceptions in the Directive itself?
• is sex a determining factor for the activity (policing duties under arms)?
• is this a measure for the protection of women?
• what principle of interpretation applies to these exceptions?

SIRDAR V. ARMY BOARD, et al., p. 1456 (1999): exclusion of women from particular service (Royal Marines), as applied to a chef, on ground of "combat interoperability"

KREIL V. GERMANY, p. 1458 (2000). German law forbids the assignment of women to service involving the use of arms, and limits them to medical and musical service.

• is this case distinguishable from Johnston? From Sirdar?
• are the risks from which women are protected here unique to women?

Exclusion of men from midwifery: Commission v. U.K., n. 2 p. 1460 (1983)

Exclusion of women from prison guard at all-male prison: Dothard (U.S. 1977) and Commission v. France (1988), n. 3 p. 1460

4. Protection of Women and Reverse Discrimination
A. The Scope for Positive Action (Directives, and art. 141(4))

KALANKE v. FREIE HANSESTADT BREMEN, p. 1461 (1995). MS affirmative action reg., absolute priority to women in any public adm'n sector where women are a minority

• is it a measure designed to remove inequalities affecting womens' opportunities?
• is it necessary for that purpose?

MARSCHALL, p. 1463 (1997): how does this differ, if at all, from Kalanke?

BADECK, p. 1465 (2000): state-operated training programs, half the places for Wn?

ABRAHAMSON, p. 1466 (2000): less-qualified W over more-qualified M? Should art. 141(4) be read as changing the rule of the directives, as interpreted by the Court?

B. Measures to Protect Workers During Pregnancy and Maternity

HOFMANN V. BARMER ERSATZKASSE, p. 1469 (1984):may MS provide maternity leave for working mothers, starting 2 months after birth, without providing similar opportunity to fathers?

• What is subsumed under "maternity and pregnancy"?
• Mother's condition as affected by pregnancy and childbirth?
• Mother's relationship to the child during the period of infancy?
• How is this different from childcare, already excluded from the exception?
• May an employer prefer a non-pregnant woman solely to avoid the MS protective laws for pregnant women? Dekker, n. 5 p. 1472 (1990)
• May MS law prohibit night work for women only? Stoeckel, n. 6 p. 1472 (1991)

HABERMANN-BELTERMANN V. ARBEITERWOHLFAHRT, p. 1472 (1994). May MS permit rescission of a contract calling for night-time work, on later discovery that the employee was pregnant and by law could not be given night-time work?

• How does the directive get applied to this case, involving a private contract?
• is a pregnant woman qualified to perform the work contracted for?
• is the disqualification inherent in the status, or only by operation of law?
• is it temporary, in relation to the intended length of employment?
• could the employer have refused to hire a pregnant woman in the first place?