Sex Discrimination

Question 1

Name of Treaty Article we rely on here?

Answer 1

157 as well as the Recast Directive.

Question 2

How do you determine pay or treatment?

Answer 2

Pay (rely on 157(2)):
‘pay’ means the ordinary basic or minimum wage or salary
and any other consideration, whether in cash or in kind, which the worker receives directly or
indirectly, in respect of his employment, from his employer.

Treatment (rely on Recast Directive 2006):

Question 3

What is the purpose of anti-discriminatory legislation?

Answer 3

To ensure fairness and equality as well as economic growth within a community (Defrenne vs SABENNE).

Question 4

Where can equal pay be enforced?

Answer 4

Everywhere; it has direct effect (Defrenne vs SABENNE).

Question 5

Where can equal treatment be enforced?

Answer 5

Faccini Dori; Recast Directive only has vertical effect (14(1)).

Question 6

Can pay be defined outside of the statute?

Answer 6

Yes; Garland provides a very wide definition of what constitutes pay, including travel concessions for the family of retired.
Barber - Statutory redundancy pay
Bilka - Pension payments
Seymour - Smith - damages for unfair dismissal

Question 7

What is direct discrimination?

Answer 7

Direct discrimination - Recast Directive (2(1)(a))
E.G - woman sacked for being pregnant (Webb), woman not hired for being pregnant (Dekker), female flight attendants paid less than men (Defrenne)

Question 8

What is indirect discrimination?

Answer 8

2(1)(b) - Recast Directive

Question 9

Can indirect discrimination be applied to equal pay?

Answer 9

Yes - definition in Recast Directive appropriate for 157 claims (Jenkins)

Question 10

Can direct discrimination be justified?

Answer 10

No, but there are two defences - occupational requirement and positive discrimination.

Question 11

What is the first defence of direct discrimination?

Answer 11

Occupational requirement; 14(2), Recast Directive.
Employer must show:
1. Gender is ‘genuine and determining occupational requirement’
2. Measure is proportionate (appropriate, necessary, not beyond what is necessary).
Skimmed Milk Powder

Question 12

Any other authorities on first defence of discrimination?

Answer 12

Commission v UK - Midwives can be just women

Johnston - Derogations will be interpreted strictly

Question 13

Second defence of discrimination?

Answer 13

Positive Discrimination;
Article 157(4) / Article 3, Recast Directive
- Principle of equal treatment does not prevent MS from adopting measures to make it easier for under represented sex to pursue vocation.

HOWEVER
Abrahammson - Cant get it when under qualified.
Kalanke - Cant get it when equally qualified!

Marschall - Presumption is that where equally qualified the the less represented sex will get the job but the more represented sex can rebutt with overriding characteristics.

Question 14

Indirect Discrimination

Answer 14

Article 19 - Burden of Proof shifts to defendant when more than one has been affected.

Apply Bilka (LAN):

• Legitimate Aim / Need?
• Appropriate?
• Necessary?

If it is a state measure, must:

• Reflect legitimate aim
• Be unrelated to sex discrimination
• Suitable for achieving aim