EU Law - Sexual Equality II - Types of Discrimination (Social Policy)

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  • 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
        • Direct discrimination, prohibited under Article 119 (now Article 157 TFEU)
      • 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.
    • 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)
    • 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.
        • 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
            • 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
            • Potential forum for considering potential justifications
              • National court due to finding of fact

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