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

• 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 of the principle to self-employed persons, including partners in professional or business firms

No threshold size requirement, 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. 1173

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

P. V. S., Supp. p. 432 (1996): is discrimination against transsexuals covered by the Equal Treatment Directive?

• 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. Soutwest Trains, Supp. n. 2 p. 433 (1998): does discrimination based on sexual orientation violate art. 119 or the Equal Treatment directive? [Court said no]

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

JOHNSTON V. CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY, p. 1174 (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)?
• are women under arms more vulnerable to assassination?
• are they less effective for those duties in which women are otherwise thought to be especially effective ("social field")?
• is this a measure for the protection of women?
• what principle of interpretation applies to these exceptions?

KREIL V. GERMANY (handout) (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?
• are the risks from which women are protected here unique to women?
 
3. Protection of Women and Reverse Discrimination

Commission v. France, p. 1179 (1988): does the Directive permit an MS to authorize collective bargaining agreements and enterprise rules to provide protections for women, relating to terms and conditions of employment, that are not connected to "childbirth or maternity"?

HOFMANN V. BARMER ERSATZKASSE, p. 1180 (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 physical and mental condition as affected by pregnancy and childbirth?
• Mother's relationship to the child during the period of infancy?
• How is this different from childcare, which the Court had already excluded from the Directive's exception?
• Where MS law provides special protections for pregnant women, may an employer prefer a non-pregnant woman over a better-qualified pregnant woman, solely to avoid the burdens of the protective laws? Dekker, n. 5 p. 1183 (1990)
• May MS law prohibit night work for women only? Stoeckel, n. 6 p. 1184 (1991)

HABERMANN-BELTERMANN V. ARBEITERWOHLFAHRT, Supp. p. 434 (1994). May MS permit an employer to rescind an employment contract calling for night-time work, on the ground that the employee (unbeknownst to both parties) 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?

KALANKE v. FREIE HANSESTADT BREMEN, Supp. p. 436 (1995). MS affirmative action regulation, giving priority to equally qualified women in any public administration sector where women make up less than half the staff.

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