EU Law - Sexual Equality II - Types of Discrimination (Social Policy)
- Created by: Alasdair
- Created on: 11-11-20 20:54
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- Sexual Equality II - Types of Discrimination (Social Policy)
- Direct Discrimination
- Definition according to recast Directive
- occurs 'where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation'
- Prohibited in all discrimination legislation including recast Directive 4, 5 (pay) and 14 (other treatment).
- Defrenne v Sabena (No 2) (case 43/75) [1976] ECR 455
- Belgium airline, Sabena
- Employed both male and female cabin crew
- Paid male more than female crew
- Allowed under Belgium national law
- Duties the same
- Paid male more than female crew
- Employed both male and female cabin crew
- Direct discrimination, prohibited under Article 119 (now Article 157 TFEU)
- Belgium airline, Sabena
- Pregnancy
- Consistently held treatment by employer of woman by reason of her being pregnant is direct discrimination
- Dekker (case C-177/88) [1990] ECR I-3941
- Demonstrates against EU Law to make decision not to employ a woman because she is pregnant
- Webb v EMO (case C-32/93) [1994] ECR I-3567
- Demonstrates it's against EU law to dismiss woman because she is pregnant.
- Definition according to recast Directive
- Indirect (covert) discrimination
- Definition according to recast Directive
- Article 2(1)(b)
- Occurs where apparently neutral provision, criterion or practice would put person of one sex at particular disadvantage compared with persons of other sex
- Exception:
- Provision, criterion or practice is objectively justified by legitimate aim, and means of achieving aim are appropriate and necessary
- Occurs when there is difference in treatment between sections of workforce for reasons not related to sex.
- Difference in treatment falls more heavily on, say, female workforce.
- Two examples
- Job advertisement containing height requirement (e.g. fire service)
- Apparently neutral provision since it applies to applicants of both sexes
- Stats show women in genera are less likely to satisfy height requirement and therefore are disadvantaged compared to men
- Treatment of part-time workers
- Apparently neutral provision with men and women in same position treated in same way
- Generally accepted part-time workforce is predominantly female
- Any provision which treats part-timers less favourably than full-timers will out persons of one sex (female) at particular disadvantage comped to persons of other sex (male)
- Job advertisement containing height requirement (e.g. fire service)
- Two examples
- Difference in treatment falls more heavily on, say, female workforce.
- Definition according to recast Directive
- Challenging indirect discrimination
- Particular disadvantage
- A worker must demonstrate policy results in one sex suffering a particular disadvantage if they wish to challenge that policy as indirectly discriminatory
- Statistics
- no longer required to prove as women were less likely to satisfy condition than men
- Now it will simply be necessary to show disadvantage
- Little to no guidance on what this might present
- Stats are likely to remain important source of evidence
- Question of fact
- Like height requirement and part-time examples
- Ultimately be matter for national courts
- Legitimate justification
- Indirect Discrimination - The Proviso
- Article 2(1)(a)
- Exception of indirect discrimination
- e.g. fire service may be able to justify its recruitment policy if it can show being above certain height is essential in order to carry out duties as fire officer.
- Exception of indirect discrimination
- Article 2(1)(a)
- Case law on indirect discrimination
- Jenkins v Kingsgate (case 96/80) [1981] ECR 911
- Workers of one sex largely paid more than another
- Part-time workers, mostly women, paid lower hourly rate
- Decision of ECJ
- Paying part-time workers lowr hourely rate was not in itself indirect discrimination
- only if objectively justified and no way related to any discrimination based on sex
- Absence of such justification, fact considerably smaller percentage of women qualify as full-time workers
- could mean difference in treatment of full and part-time workers amounted to indirect legislation
- Paying part-time workers lowr hourely rate was not in itself indirect discrimination
- Justifications of employer in defence of its pay policy
- Employer could argue better pay package for full-time workers might be justified
- if better rates of pay were necessary in order to attract full-time workers, irrespective of sex
- Employer could argue better pay package for full-time workers might be justified
- Potential forum for considering potential justifications
- National court due to finding of fact
- Workers of one sex largely paid more than another
- Jenkins v Kingsgate (case 96/80) [1981] ECR 911
- Indirect Discrimination - The Proviso
- Particular disadvantage
- Direct Discrimination
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