Introduction to European Union gender equality law Geraldine Scullion geraldinescullion@hotmail.co.uk

1. Introduction to European Union gender equality lawGeraldine Sculliongeraldinescullion@hotmail.co.uk

2. aims • introduction to European Union gender equality law • inform women entrepreneurs of principles of equal treatment applicable to • self employed workers • employment • service users • rights as future EU citizens

3. women entrepreneurs • concerned with gender equality law • as self employed workers • as employers (and as employees) • equal pay • unlawful sex discrimination in the workplace • protection against pregnancy related discrimination • work life balance • paternity leave • adoptive leave • time off work for family emergencies • as regards access to services including networks, financial services, knowledge etc

4. gender and employment in the EU • women’s employment in EU-27 increasing faster than men’s employment • unemployment rate for women falling • employment gap between men and women is narrowing • But • women earn 15% less than men • women segregated by sector and occupation • 33% of managerial positions held by women • 23% of national MPs and 33% of MEPs are women

5. gender and employment in Turkey

6. women in the workforce • predominate in part-time work • balancing family and professional life • women pre-dominantly care for children, elderly or disabled people • women over represented in sectors e.g. health and and education • women over represented in certain jobs e.g. administration, nursing etc • women under represented in science and technology • higher risk of poverty in old age • women have a higher educational attainment in all EU member states (81% women, 75% men)

7. EU principles of gender equality • equality a fundamental right of EU citizens • equality principle includes non-discrimination on grounds of sex • principle of equal pay forms ‘essential and indispensible’ part of the EU’s foundations • domestic courts in EU-27 obliged to implement this principle

8. EU self employment directive • the principle of equal treatment applies to self employment • no discrimination on grounds of sex, either directly or indirectly, by reference in particular to marital or family status • Member States to eliminate of all provisions contrary to the principle of equal treatment, especially in respect of the establishment, equipment or extension of a business or the launching or extension of any other form of self-employed activity including financial facilities • provides for same conditions for married and unmarried partners to form companies, and for spouses’ access to social security, etc

9. workplace protection in EU • equal pay for men and women who do same work or work of equal value • economic and social aim: • competitiveness across member states • social progress and constant improvement of living and working conditions • states can undertake positive action to help under-represented sex pursue a vocational activity • and action to compensate for disadvantage in professional careers

10. equal treatment at work • principle of equal treatment for men and women includes access to work, promotion, vocational training, working conditions, including dismissal • means there should be no discrimination on grounds of sex • includes working in public and private sectors • member states must provide access to judicial remedies including judicial protection against victimisation, and • sanctions which deter discriminatory employers and compensate victims

11. work place protection in EU • principle of equal treatment means workplace discrimination on grounds of sex is unlawful • no discrimination whatsoever on grounds of sex, either directly or indirectly by reference in particular to marital or family status • member states required to abolish any laws and regulations • declare null and void any contractual terms or agreements • which are contrary to principle of equal treatment

12. principle of equal treatment • outlaws direct and indirect discrimination in workplace (and in provision of goods and services) • outlaws harassment and sexual harassment • includes protection against less favourable treatment because of gender reassignment

13. direct sex discrimination • unlawful to treat a person less favourably on grounds of sex than another person has been or would be treated in a comparable situation • example of direct sex discrimination – • asking a woman questions about childcare in an interview which are not put to male candidates • categorising particular jobs as ‘men’s work’ and refusing to employ a woman • treating a woman adversely because she is pregnant. • direct discrimination cannot be justified

14. indirect sex discrimination • indirect discrimination exists where an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary • for example, requiring all candidates to be 1.78 metres to do the job • having a requirement that all employees must work full time • indirect discrimination can be objectively justified

15. justifying indirect discrimination • employer must have objective economic grounds to justify indirect discrimination: • correspond with a real need • are appropriate to achieving the objectives • and are necessary to that end • for example, part time worker excluded from pension scheme which required full time service; adverse impact on women; employer wanted to discourage part-time work; criteria could be justified by a business need unrelated to sex of his workers

16. sexual harassment • sexual harassment is a form of discrimination • any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which occurs with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment • For example: physical touching, sexual conduct or remarks, sexual images etc

17. harassment • harassment is a form of discrimination • any form of unwanted conduct related to the sex of the person which occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment • for example: woman belittled at work by name calling or sexist comments and when she complains told ‘it’s just a joke’

18. exceptions and exclusions • social security is excluded • posts where the sex of worker is a determining factor • protection of women re pregnancy and maternity • allowing women time off work for ante-natal care, or paid maternity leave is permitted • woman entitled to return to her job on same terms and conditions at the end of her maternity leave • positive action to promote equal opportunities for women and men • for example, having women-only vocational training in fields where women under represented

19. pregnancy discrimination • discrimination against woman on grounds of her pregnancy is not permitted • legitimate to protect • women’s biological condition during pregnancy • special relationship of mother and child • for example: unlawful to refuse to employ a pregnant woman or dismiss a woman who becomes pregnant

20. where being a women is a requirement of the job • member states may exclude some jobs or training from the principle of equal treatment • where being a woman (or a man) is essential to do the job • provided that the objective is legitimate and • requirement is proportionate • for example: midwives, male prison warders in male prisons, female prison warders in women’s prisons, certain combat units in the armed forces, etc

21. positive action v positive discrimination • positive action is lawful • positive discrimination is unlawful • For example • giving automatic priority in recruitment for to women was wrong • but measures giving women access to employment which gave them a specific advantage to improve their ability to compete in the labour market and pursue a career on equal footing with men, were permitted

22. social security • principle of equal treatment applies to social security measures • e.g. schemes which provide statutory protection for • old age • sickness • invalidity • accidents at work • unemployment • different state retirement ages for pension purposes permitted if can be justified

23. other important directives affecting women at work • pregnant workers directive provides for protection of pregnant women at work and covers: • risk assessment, time off for ante-natal care, maternity leave, prohibition on dismissal, etc • parental leave directive which provides for leave to cover adoption, parental leave on the birth of a child, time off for family emergencies • part-time and fixed term workers directives which prohibits discrimination against atypical workers

24. access to goods and services • the principle of equal treatment between men and women applies in access to goods and services outside the family or private sphere • does not include content of media and advertising, self employment or education • includes public services such as banking and financial services, insurance, health, housing etc • services for women only (e.g. shelters for victims of domestic violence) are permitted if justified by a legitimate aim and the means are appropriate and necessary

25. goods and services • direct and indirect discrimination on grounds of sex in access to goods and services is prohibited • includes harassment and • sexual harassment • allows more favourable treatment of women on grounds of maternity or pregnancy

26. discrimination in access to goods and services • example of direct discrimination • a private landlord renting out a shared house requires a higher deposit from a single woman compared with a single man • example of indirect discrimination • a mortgage provider refuses to provide someone with a mortgage because they work part-time; this is likely to be unlawful indirect sex discrimination as the majority of part-time workers are women

27. other rights as EU citizens • under Article 13 of the Treaty, no discrimination in the workplace on grounds of race, religion or belief, disability, age and sexual orientation • new directive to extend to non-employment areas such as housing, goods and services and education • EU Charter of Fundamental Rights promotes equality before the law and prohibits sex discrimination • ‘Charter must become the touchstone of future action by the Commission’

28. references and reading list • equal treatment directive 76/207/EEC and the revised equal treatment directive 2002/73/EC • ‘Recast Directive’ Directive 2006/54/EC • ECJ Case 342/93 Gillespie • Article 141 (119) of the Treaty of Rome on equal pay • ECJ case - Defrenne cases Case 43/75 & Case 149/77 • Equal Pay Directive75/117/EEC • Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood • Pregnant workers directive 92/85/EEC • ECJ Pregnancy cases: • Case 177/88 Dekker v VJV Centrum; Case 32/93 Webb v EMO; Case 179/88 Hertz v Aldi; Case 184/83 Hofmann • Social security Directive79/7/EEC; Occupational Social Security Directive 86/378/EEC • Parental leave Directive 96/34/EC; Part-time Workers Directive 97/81/EC; Fixed term Workers Directive 1999/70/EC • Positive action ECJ cases: • Case 450/93 Kalanke; Case 409/95 Marshall, can prefer equally qualified woman where women under represented provided men guaranteed that factors which tilt balance to a man will be taken into account; Case 158/97 Badeck; Case 407/98 Abrahamsson; Case 476/99 Lommers • EC has favoured positive action in Council Recommendation A4/635/EEC 1984on promotion of positive action for women. See also: Positive Action and Equality opportunities in Employment , a guide (European Commission 1988) CB 48 87 524 EN C

29. references and reading list • Amsterdam Treaty amendments 1997 • Treaty of Amsterdam amended articles 2 & 3 of Treaty of Rome to include an express commitment to the promotion of equality between men and women as one of the tasks (Article 2 EC) and activities (Article 3 EC) of the community; • promotion of equality between men and women one of the tasks and activities of the community • Article 13 empowers community to take action to combat discrimination based on sex racial or ethnic origin, religion or belief, disability, age or sexual orientation • Charter of Fundamental Rights of the EU 2000 promotes equality before the law and prohibits discrimination based on sex • Gender goods and services Directive 2004/113/EC prohibits discrimination and harassment by both public and private bodies in the provision of goods and services • Directive 79/7/EEC (Social Security Directive) Prohibits direct and indirect sex discrimination in relation to social security schemes which provide protection against the risks of sickness, invalidity, old age, accidents at work and occupational diseases, and unemployment. The Directive does, however, allow different pensionable ages for men and women when  granting pensions and  in relation to other benefits where necessary.  • Look at EU Commission codes of practice & recommendations for good practice and advice