Positive Action Flashcards
James v Eastleigh BC
But for causation test for DD. Benign/inclusionary motives to disadvantaged groups are irrelevant and cannot justify DD.
Shows strong emphasis on formal equality under English law - DD cannot be justified under s 13 EqA, so equal treatment principle takes priority generally over substantive equality.
Lambeth LBC v Commission for Racial Equality
Court quashed the idea that a GOR is broad enough to cover positive action policies. Since the role advertised solely to those of ACS community did not involve direct interaction with the wider ACS community in Lambeth, it fell outside of the exception in the RRA 1976 which allowed for community roles to have a particular ethnic requirement.
Shows narrow scope of GOR - not broadened for positive action policies.
Kalanke
German law gave women AUTOMATIC priority in tie-break situations in jobs where they were under-represented. CJEU held that positive action legislation is a derogation from the individual right of equal treatment under Art 2(1) Directive 2000/78 (Equality Framework Directive).
Derogation under Art 2(4) must be construed very strictly since it violates equal treatment principle - narrow scope given to positive action policies. Since the German law gave unconditional priority to women in tie-break situations, it fell outside of the tightly construed exception under Art 2(4).
Marschall
National law had a similar tie break policy to Kalanke, but male candidates were allowed to give any reasons why they should be preferred for the role in the tiebreak situation. CJEU held that a scheme preferring equally-qualified women to men in a tiebreak situation was lawful provided that there is no automatic preference for women and objective assessment made. The opportunity for intervention by men meant that there was not an automatic priority for women in tiebreak situations, so this fell within the scope of Art 2(4).
Lommers
ECJ held that the provision of nursery facilities for women, whilst only allowing them for men in emergency situations, was not discriminatory if it allowed male staff who took care of children themselves the same entitlements as women.
Shows that any derogation from Art 2(1) under Art 2(4) must be proportionate, and it must also be reconciled with the equal treatment as far as possible. Allowing men who are the primary childcarers the same entitlements as women meant that the policy overall (which still gave less favourable treatment to men whose wives mainly looked after children) was proportionate and fell under Art 2(4).
Roca-Alvarez
Spanish programme which allowed women with children under 9 months to take one hour off work each day. Policy only allowed for men to take the time off if their wife was employed. C’s wife was self-employed, so he did not qualify. Discrimination since unqualified women’s right and conditional men’s right.
Art 2(3) Directive 2000/78 provides that prohibition on unequal treatment will not prejudice policies related to pregnancy/maternity. However, CJEU held that Art 2(3) has a narrow construction in relation to biological aspects of pregnancy/maternity - since this policy was parental leave, it fell outside of the scope of Art 2(3).
CJEU held that the derogation under Art 2(4) also did not apply because the policy did not advance equality of men and women because it perpetuated the traditional division of gender roles (women as caregivers) and kept fathers in a subsidiary role. Court focused on the broader, long-term social objectives of breaking down prescribed gender roles at the expense of the short-term impacts of women accessing the labour market now.
Therefore, if a positive action policy perpetuates traditional gender stereotypes then it acts as a barrier to equality and thus cannot fall within the derogation under Art 2(4).
WL balance - effect of measure being lawful = mother would have to reduce her work and father could not assist her (since did not qualify). Makes it harder for woman to reconcile paid work and family life.
Abrahamsson
Swedish university had a policy where women were given preference to men for posts in which they were underrepresented - women only needed to have the minimum requirements and got the job over more qualified men provided that the difference was not sufficiently material that it would give rise to a breach of objective assessment.
CJEU held that the policy did not fall within the scope of Art 2(4), even though it had the legitimate aim of improving under-representation of women in the workplace. This was because it overrode the consideration of individual applicants’ merits - reinforced Kalanke that the positive action policy is unlawful if it gives unconditional preference/priority to one group.
Art 2 Directive 2000/78
Prohibition on unequal treatment on the basis of any of the protected grounds under Art 1.
Note the derogation which may allow scope for positive action policies under Art 2(4).
Art 7 Directive 2000/78
Principle of equal treatment shall not prevent any MS from adopting specific measures to compensate for disadvantages in relation to protected grounds under Art 1.
Art 157(4) TFEU
Lisbon Treaty now mirrors Art 7 Directive 2000/78 - MS are entitled to pursue positive action policies as an exception to the equal treatment principle as enshrined in the EU Treaties.
s 159 EqA 2010
Exception to equal treatment principle/prohibition on DD under s 13 EqA in limited circumstances. s 159 allows employers to treat those from a disadvantaged group more favourably than others who do not share that characteristic in relation to promotion/recruitment, but only in a TIE BREAK situation.
Under s 159(4), employer may only give more favourable treatment to A if A is equally as qualified as B; the employer does not have a general policy of treating those with A’s characteristic more favourably; and the favourable treatment to A is a proportionate means of achieving a legitimate aim.
s 149 EqA 2010
Sets out the public sector equality duty. s 149(1) provides that public authorities, when exercising their functions, must have due regard for the need to eliminate disadvantage and advance equality of opportunity.
Weak procedural duty on employers - only have to show that they took into consideration the need to eliminate disadvantage and promote equality of opportunity, rather than a substantive requirement that they must take active steps to do so.
s 1 EqA 2010
Sets out the public sector socio-economic inequality duty. Public authority employers, when exercising their functions, must have due regard for the desirability of carrying out its functions in such a way that reduces socio-economic disadvantage.
