ERA 8 June 2009 EC Law on Equal Treatment for Men and Women in the Workplace - Legal history - Key concepts (definitions) Michel Miné (Cnam, Professor of Labour Law, Paris) Le Droit du travail, Ed. d’Organisation, June 2009

History in Brief

For centuries the law “instituted” discrimination against women “Sexist” law: Code Napoléon (1804) and the Civil Codes of various countries that it inspired, 19 th century laws designed to “protect” women as legal minors, etc. “Xenophobic” or “racist” laws: slavery (Code Noir, Colbert); laws to “protect national labour”, 1932; racist laws (Jews Act, Vichy, 1942); etc. etc.

Nowadays the law prohibits discrimination against women International: – UN: UDHR 1948; Covenants (1966); Convention on the Elimination of all forms of Discrimination Against Women (1979) – ILO: 1919; Convention no. 100 (1951), Equal remuneration for men and women for “work of equal value” – Council of Europe: European Social Charter (revised 1996) European Community: – Rome, 1957 (Art. 119 – Equal pay for men and women for “equal work” ) – Amsterdam, 1997 (Art. 3, 13, 141)

Origins of EC law Treaty: Art. 119 (1957) Directives of 10 February 1975 (equal pay for work of equal value) and 9 February 1976 (equal treatment in employment) Case-law: Gabrielle Defrenne rulings – ECJ 25 May 1971, I: direct application – ECJ 8 April 1976, II: the principle of equal pay for female and male workers is one of the foundations on which the Community rests – ECJ 15 June 1978, III: “equal treatment for men and women is a fundamental right which forms part of the general principles of Community law”

European Union - Treaty (since Amsterdam) Art. 3: the EU shall “promote equality between men and women” in its activities – gender mainstreaming Art. 13 (19): the EU has the competence to “combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”. Art. 141 (157): the EU shall adopt measures aimed at ensuring equal treatment of men and women in matters of employment and occupation, including the “principle of equal pay for equal work or work of equal value”.

European Union - Directives (equal treatment of women and men) Dir. 75/117 – Equal pay for work of equal value Dir. 76/207 – Access to employment, training, promotion and working conditions Dir. 79/7 – Social security Dir. 86/378 – Occupational social security schemes Dir. 92/85 – Safety and health at work of pregnant women and those who have recently given birth or are breastfeeding Dir. 96/34 – Parental leave (European collective agreement) Dir. 97/80 – Burden of proof (ECJ case law) Dir. 2002/73 – Employment and occupation (including harassment) Dir. 2004/113 – Access to goods and services Dir. 2006/54 – Employment and occupation (recast directive) (to be continued…)

Definition of Key Concepts Relating to Discrimination

Challenges Speak the same language (legal terminology helps to tackle discrimination objectively using conceptual tools) Avoid confusion (distinction, injustice, inequality, discrimination,…) – distinctions (there are some legitimate distinctions…) – unfavourable treatment (there are some justifications for unfavourable treatment…) – injustice (some injustices are not discriminatory…) Mobilise resources provided by the law to flag up forms of discrimination (describe the discriminatory facts) and take action to eliminate them

Generally, discrimination is expressed through a measure that is: unfavourable (acts of management: access to employment, including promotion and training, conditions of work and employment, including pay, occupational social security schemes) unjustified illicit, linked to a criterion that must not be applied to this decision – sex (gender)

Direct Discrimination Where one person is treated less favourably than another – is (present concrete circumstances) – has been (successive concrete circumstances) – would be (hypothetical circumstances) in a comparable situation

A person is treated less favourably than another is ECJ 1 July 1986, Rummler v. Dato-Druck, ECJ 17 October 1989, Danfoss, ECJ 27 October 1993, Pamela Enderby, ECJ 9 February 1999, Regina v. Seymour-Smith, ECJ 10 February 2000, Deutsche Post, ECJ 26 June 2001, Susan Brunnhofer, ECJ 4 October 2001, TeleDanmark, ECJ 18 March 2004, etc.

A person is treated less favourably than another has been ECJ 27 March 1980, Wendy Smith

A person is treated less favourably than another would be ECJ 30 April 1998, Évelyne Thibault v. CNAVTS

Direct Discrimination (continued): instruction to discriminate against individuals (women) multiple discrimination harassment association intentions with discriminatory effects

“Multiple” Discrimination (“accumulated” discriminatory actions) A person (woman) suffers direct or indirect indiscrimination on several different grounds: sex and one or more other criteria – “race”/ethnic origin, nationality, sexual orientation, age, disability, beliefs or religion

Discrimination by Harassment Sexual harassment: unwanted (physical, verbal) conduct with sexual connotations with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, offensive or disturbing environment “Sexist” harassment: unwanted gender- related conduct (…) with the purpose or effect of violating the dignity of a person

Discrimination by Association ECJ 17 July 2008, S. Coleman (discrimination associated with a disability; the person suffered discrimination and harassment because of her son’s disability) Situations where women suffer discrimination on the grounds of a criterion other than sex

Discrimination by Intentions with Discriminatory Effects ECJ 10 July 2008, Firma Feryn NV (discrimination on racial/ethnic grounds) Situations where the company indicates that women will not be recruited for certain jobs or promoted to certain positions, etc.

Exceptions to Direct Discrimination Basically: impossible By way of an exception (interpreted strictly): different treatment is accepted when a characteristic associated with a particular sex constitutes a “genuine and determining occupational requirement” by reason of the nature of the activities or the context in which they are carried out – if the Member State has made provision for this – with regard to access to employment – if the objective is legitimate and the requirement is proportionate (ECJ 30 June 1988, Commission v. France)

Indirect Discrimination Where an apparently neutral provision or practice (applied by the company… ) would put persons having a particular sex at a particular disadvantage (compared with persons of the other sex) Unless the entity (company…) applying the provision or practice proves that it is justified by a legitimate aim (pertinent) and that the means for achieving it are appropriate and necessary (proportionality)

Indirect Discrimination The method permits examination of the effects of a law or practice (objective conceptualisation of discrimination). If the company can justify the legitimacy and proportionality of the provision or practice that has been challenged, the inequality in treatment is not discriminatory. Case-law establishes stringent standards for accepting a justification (justification does not derive from: budgetary data – ECJ 20 March 2003, Helga Kutz-Bauer, etc.)

A Concept and a Method ECJ 31 March 1981, Paula Jenkins (part-time worker, hourly wage) ECJ 13 May 1986, Bilka (part-time workers, company pension scheme) ECJ 7 February 1991, Nimz (part-time workers, career development) ECJ 6 December 2007, Ursula Voss (part-time workers, overtime rates for hours worked beyond contract) etc.

Positive Action Indirect discrimination invites the adoption and implementation of measures for positive action Member States may maintain or adopt specific measures of positive action to ensure full equality between women and men in occupational practice (Art. 141 § 4, Treaty; recital 22, Dir. 2006/54) Action to compensate for disadvantages (pay, training, promotion, etc.) or to prevent them (training, etc.), for the benefit of persons who have suffered gender discrimination or who belong to a group that has suffered gender discrimination Measures adopted: ECJ 1995, 1997, 2000

Access to relevant documents Texts Case law Commission