W8 Anti Discrimination Flashcards
What is the main legal basis for prohibition on discrimination?
Art 21(1) of Charter of Fundamental Rights.
Includes sex, age, disability, sexual orientation.
Art 21(1) Charter of Fundamental Human Rights
Prohibits discrimination on basis of sex, age (mostly), disability, and sexual orientation
What is the legal basis for equal pay?
Article 157 TFEU
Article 157 TFEU
Equal pay across genders for equal work
What is the legal basis for equal treatment in the workplace?
Directive 2006/54
Directive 2006/54
Equal treatment in the workplace
Defines direct discrimination
Prevents automatic positive discrimination
Directive 2006/54 vs Article 157 TFEU
If it’s a pay dispute, use Art 157 (which has direct effect). If it’s a treatment dispute, use Directive 2006 (indirect effect)
Directive 92/85
Rights of pregnant workers and working mothers
Directive 2019/1158
Work-life balance for parents and carers
Directive 2000/43
Race and ethnic origin
Prohibition of discrimination on grounds of race or ethnic origin (wide scope)
Direct and indirect discrimination, harassment
Exceptions
Directive 2000/78 Framework Directive
Disability, age, religion, sexual orientation
C-157/15 Achbita
Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.
Significance: Direct vs indirect discrimination
Defrenne v Sabena No 2
Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. Article 157 included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.
Significance: Example of direct horizontal effect of treaty articles. Confirms scope of direct effect of Art 157.
What qualifies as pay for purposes of equal pay under Art 157?
Anything granted in respect of employment. Auth: Garland
Case 12/81 Garland v British Rail Engineering
Facts: British rail company provided retired male employees with special travel perks for themselves, partners, and dependents - this was not part of employment contracts. Retired female workers were not provided with the same benefit. Confirmed to be discriminatory, and that travel benefits were considered pay for the purposes of equal pay, since it was in contemplation of employment.
Significance: Wide interpretation of “pay” for equal pay - anything provided in exchange for work.
171/88 Rinner Kuhn
Facts: German legislation permitted employers to not pay sick pay to workers whose normal hours were less than 10 hours/week or 45 hours/month. Was found to disproportionately affect women over men, and thus indirectly discriminatory, and would require justification/proportionality.
Significance: Sick pay qualifies as pay under Art 157. Example of discrimination in fact but not in law.
C-167 Seymour Smith
Facts: UK case. Legislation said that protection against unfair dismissal only applied to employees who had been continuously employed for 2+ years. Argued that this disproportionately affected women. Preliminary ruling said that the national court would need to confirm if this was statistically true, and if so, the legislation was indirectly discriminatory, and the MS would need to justify it on legitimate grounds unrelated to discrimination, and must be proportionate.
Significance: Pay for unfair dismissal qualifies as pay under Art 157, but the right to be re-instated falls under the equal treatment directive. For indirect discrimination: must establish numerical discrepancy between genders in the neutral criteria, then the burden of proof moves to the MS/employer to prove an objective justification. There’s no exact threshold for “disproportionate” - just “considerably” different effect on the genders.
C-170/84 Bilka-Kaufhaus
Facts: Employer excluded part-time workers from their pension scheme, which disproportionately affected women. Was indirect discrimination but could be justified, such as if the company wanted to employ as few part-time workers as possible due to a real business need.
Significance: Occupational pensions qualify as pay. Example of objective justification for indirect discrimination.
C-262/88 Barber
Facts: British man made redundant did not have access to his employer pension due to his age. Pension age was older for men than for women. Questions: 1) is pension pay under equal pay or equal treatment? 2) Is equal pay infringed where a woman would receive immediate access to her pension but a man in the same circumstances would not? CJEU ruled that pension is pay, and this policy infringed equal pay. Equality in pay must be applied to each aspect of pay individually, not a holistic assessment of sum of all benefits (as that’s too onerous for courts).
Significance: Pension is pay, a higher pension age for men over women is direct discrimination.
What is the same employer principle?
When arguing equal pay cases, the pay must be comparable to a position within the same employer. Auth: Lawrence
C-320/00 Lawrence
Facts: Women working for the council to clean schools had previously won an equal pay dispute comparing their work to men in jobs of equal value, and as a result their wages were raised. Subsequently, these jobs were outsourced, and the outsourcer paid less than the council had, and employed some of the same women. Those women tried to bring an action for equal pay, but the CJEU ruled that while the articles themselves don’t require the two comparison jobs to be from the same employer, in order to have someone accountable for the discrepancy, there must be a single source. In this case, no single source, so doesn’t fall under Art 157.
Significance: Same employer principle
C-127/92 Enderby
Facts: Female speech therapists making an equal pay claim compared to male clinical psychologists. Both jobs required degrees and similar duties.
Significance: Art 157 does not require two employees to have the same job, but rather perform a job of equal value. Established by comparing pre-requisites and duties. Real need of the business (if appropriate and necessary) is an objective justification for indirect discrimination. Also established that where the statistics are used to evidence indirect discrimination, the burden of proof shifts from claimant to the employer to explain the discrepancy is based on objectively justified factors rather than sex discrimination.
Jenkins
Facts: Part-time worker employed by a department store brought a claim against an employer, since she was on a lower hourly rate than her full-time male counterpart.
Significance: Lower hourly rate of pay for part-time workers than full-time workers was considered indirect discrimination since it disproportionately affected women. Could be justified.
Steinicke
Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.
Significance: Cost in itself is not a valid justification for indirect discrimination.
How to justify direct and indirect discrimination?
Direct: Cannot be justified
Indirect: Real need of the business, appropriate and necessary. Must be demonstrably proportionate.
Cost in itself not a valid justification
P v S
Facts: Employee dismissed for undergoing gender-reassignment surgery. Was ruled to be direct discrimination on basis of sex under equal treatment directive.
Significance: Gender identity cases fall under equal treatment and Directive 2006
Grant v South-West Trains
Facts: Train operator granted travel concessions to the partners of their employees, but would not do this for same-sex couples. Was ruled not gender discrimination, since it equally discriminated against gay men and gay women.
Significance: Sexual orientation does not fall under equal treatment/Directive 2006
Webb v EMO Air Cargo
Facts: Employee went on maternity leave. New hire filling in got pregnant and was fired. Was ruled direct discrimination. Supported by fact that replacement was hired on a permanent basis.
Significance: Firing pregnant women is direct discrimination and cannot be justified, even if it’s replacing someone on maternity leave.
Tele Danmark
Facts: Employee hired on temporary maternity cover. She was pregnant at interview and lied about it. Court ruled she had the right to lie since it’s an illegitimate question. Court ruled pregnancy is an absolute protection, so employee could not be dismissed even from a short term contract.
Significance: Pregnancy is an absolute protection against dismissal, including fixed term contracts.
Hertz v Aldi
Facts: Part-time cashier had a lot of pregnancy complications and as such spent a lot of time on sick leave. After coming back to work, she was off sick again for 100 working days related to pregnancy complications. CJEU reference concluded that the sick leave after returning to work should be treated as any other type of sick leave, but that any sickness during maternity leave couldn’t contribute to the “clock”.
Significance: Illness during pregnancy does not allow dismissal. Returning to work post-maternity leave with illness related to pregnancy: dismissal only permissable if a man would be fired under same circumstances. Clock on sick leave restarts at end of maternity leave.
Jimenez Melgar
Facts: Spanish worker employed by the municipality on several subsequent contracts had her contract terminated after they found out she was pregnant. They did not have to specify reasons for non-renewal, so could have been pregnancy related.
Significance: Non-renewal of a FTC is not discrimination unless motivated by the fact that the worker is pregnant. Employers under EU law don’t have to give reasons for non-renewal of contracts.
Gillespie
Facts: Workers employed by Northern Ireland Health Services lost out on a retroactive pay rise following union negotiations because they were on maternity leave.
Significance: Pregnancy Directive and Equal Pay provisions don’t require employers to pay full salary during maternity leave, however if that salary would have been subject to any pay rises but for the pregnancy, then the pregnant worker should still benefit from the pay rises.
Mckenna
Facts: Pregnant worker on sick leave most of pregnancy due to complications. Staff sick pay policy did not discern between pregnancy-related illness and other illness. Was down to half pay when she went on maternity leave, then received normal maternity pay, then after she was still on sick leave so back on half pay. Was ruled not discriminatory, provided the amount of pay is not so low as to undermine the objective of protecting pregnant workers.
Significance: Treating pregnancy-related illness the same as general illness is not inherently discriminatory.
Gerster
Facts: Employees of Ministry of Agriculture in Bavaria could be promoted after two years of service, or four years if part time. Was held to be indirect discrimination as more part time workers were women than men. To be justified and proportionate, the part-time worker must be given opportunity to demonstrate same skills as full-time equivalent.
Significance: Example of indirect discrimination and test in fact.
Johnston
Facts: Police officer in Northern Ireland. Her contract was not renewed during the Troubles, as officers were required to carry firearms and females weren’t permitted to carry firearms because of the risk. Police argued that women are more likely to be targets of assassination, so disproportionate risk to women. Court said it was allowable for certain policing activities only (proportionality) - not all officers were beat cops. The CJEU did not require any evidence to support the police’s assertion that there was a disproportionate risk to women. A lot of the decision-making was left to the national court.
Significance: Proportionality and justifications - responsiblities of role
Sirdar
Facts: Front line combat jobs - royal marines in UK. She applied to a job as a cook, got the job, was retracted when they found out she was a woman. MoD argued that it was frontline combat (even as a cook) - court accepted it as an exception since the Marines are an exceptional and small force.
Significance: Example of Art 14(2) exception
Kreil
Facts: German constitution prevented women from serving in the armed forces. There are two branches: citizens in arms (conscripted men) and professional army. Kreil wanted to work as a weapons engineer in the professional army, won at employment tribunal. Was ruled direct sex discrimination, didn’t fall under nature and context of the job since not frontline combat. Not proportionate, since the ban applied too widely across various military positions.
Significance: Art 14(2) exception denied
Art 14(2) of 2006 Directive
Exceptions permitted based on nature or context of duties carried out
What are the exceptions/justifications for sex discrimination under the 2006 Directive?
Nature of the particular occupational activities, OR
Context of the occupational activities
BUT
Must be a genuine occupational requirement
Objective must be legitimate and application must be proportionate
Where are the exceptions/justifications for sex discrimination set out?
Art 14(2) of 2006 Equal Treatment Directive
Hofmann
Facts: Argued that extended maternity leave (beyond what’s necessary to recuperate from pregnancy/childbirth) discriminatorily favoured women unless the same leave was given as paternity. ECJ rejected this, as extended leave was to protect women in connection with effects of pregnancy, not “alter the division of responsibility between parents”. Craig and de Burca note that this could support the traditional divisions of responsibility, in that women are primary caregivers.
Significance: Mothers vs fathers
Commission v Italy
Facts: Commission enforcement action against Italy for failing to properly implement the Equal Treatment Directive into national law. Specifically, a mother adopting a child was granted leave for a certain period, but the father was not. Italian government justified it as providing the same rights as to a family of a newbord child, and so the complaint was dismissed.
Significance: Maternity leave and adoption
Article 23 Charter of Fundamental Human Rights
Positive discrimination - specific advantages in favour of an under-represented sex
Article 157(4) TFEU
Positive discrimination - MS can adopt measures providing specific advantages for underrepresented sexes
Directive 2006/54, Article 3
Positive discrimination - MS may adopt measures that ensure full equality in practice btw men and women
Kalanke
Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.
Significance: Positive discrimination should look to level the playing field rather than create automatic results
Marschall
Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).
Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.
Abrahamsson
Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke
Significance: Positive discrimination can’t automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.
Lommers
Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.
Significance: Not officially overturned but now a doubtful authority because of Griesmar
Abdoulaye
Facts: Renault paid female workers a lump sum on maternity in addition to maternity pay, to compensate for the occupational disadvantage of maternity leave (e.g. not eligible for promotion, misses out on training, etc).
Significance: If the positive discrimination granted is specifically to offset the occupational disadvantage of maternity leave, then this is permissable.
Griesmar
Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.
Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?
Roca Alvarez
Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.
Significance: When comparing types of parental leave, need to look at whether it’s related to the biological facts of childbirth or about child-rearing responsibilities.
Does Art 19 TFEU have direct effect?
No
Authority: Article grants the power to the Union to legislate against discrimination. It does not prohibit discrimination in and of itself.
What is the authority for the age discrimination exception?
Art 6 of the Framework Employment Directive 2000/78
Describe the age discrimination exception
Differences of treatment based on age will not be discrimination if:
1) objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and
2) if the means of achieving that aim are appropriate and necessary.
Palacios de la Villa
Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.
Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.
Age Concern England
Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. “Mere generalizations” would undermine the Directive’s effectiveness.
Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.
Rosenbladt
Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.
Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.
Age Discrimination Structure
1) Identify the relevant legal basis. If sex discrimination, is it equal pay or equal treatment?
2) Is it direct discrimination, indirect discrimination, or positive discrimination?
3) Does an exemption apply? E.g. Nature/context of job, or age discrimination.
4) Can it be justified? Is it suitable and proportionate?
5) Remedies - indirect effect and state liability
Facts: Belgian case banning wearing of religious symbols in the workplace, adopted after an employee began wearing a Muslim headscarf.Court ruled the text of the policy was not direct discrimination, but if only applied to some religions in practice, then it is indirect discrimination. Court ruled that direct discrimination cannot be justified; indirect discrimination can be justified if proportionate and in pursuit of a legitimate aim.
Significance: Direct vs indirect discrimination
C-157/15 Achbita
Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. Article 157 included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.
Significance: Example of direct horizontal effect of treaty articles. Confirms scope of direct effect of Art 157.
Defrenne v Sabena No 2
Facts: British rail company provided retired male employees with special travel perks for themselves, partners, and dependents - this was not part of employment contracts. Retired female workers were not provided with the same benefit. Confirmed to be discriminatory, and that travel benefits were considered pay for the purposes of equal pay, since it was in contemplation of employment.
Significance: Wide interpretation of “pay” for equal pay - anything provided in exchange for work.
Case 12/81 Garland v British Rail Engineering
Facts: German legislation permitted employers to not pay sick pay to workers whose normal hours were less than 10 hours/week or 45 hours/month. Was found to disproportionately affect women over men, and thus indirectly discriminatory, and would require justification/proportionality.
Significance: Sick pay qualifies as pay under Art 157. Example of discrimination in fact but not in law.
171/88 Rinner Kuhn
Facts: UK case. Legislation said that protection against unfair dismissal only applied to employees who had been continuously employed for 2+ years. Argued that this disproportionately affected women. Preliminary ruling said that the national court would need to confirm if this was statistically true, and if so, the legislation was indirectly discriminatory, and the MS would need to justify it on legitimate grounds unrelated to discrimination, and must be proportionate.
Significance: Pay for unfair dismissal qualifies as pay under Art 157, but the right to be re-instated falls under the equal treatment directive. For indirect discrimination: must establish numerical discrepancy between genders in the neutral criteria, then the burden of proof moves to the MS/employer to prove an objective justification. There’s no exact threshold for “disproportionate” - just “considerably” different effect on the genders.
C-167 Seymour Smith
Facts: Employer excluded part-time workers from their pension scheme, which disproportionately affected women. Was indirect discrimination but could be justified, such as if the company wanted to employ as few part-time workers as possible due to a real business need.
Significance: Occupational pensions qualify as pay. Example of objective justification for indirect discrimination.
C-170/84 Bilka-Kaufhaus
Facts: British man made redundant did not have access to his employer pension due to his age. Pension age was older for men than for women. Questions: 1) is pension pay under equal pay or equal treatment? 2) Is equal pay infringed where a woman would receive immediate access to her pension but a man in the same circumstances would not? CJEU ruled that pension is pay, and this policy infringed equal pay. Equality in pay must be applied to each aspect of pay individually, not a holistic assessment of sum of all benefits (as that’s too onerous for courts).
Significance: Pension is pay, a higher pension age for men over women is direct discrimination.
C-262/88 Barber
Facts: Women working for the council to clean schools had previously won an equal pay dispute comparing their work to men in jobs of equal value, and as a result their wages were raised. Subsequently, these jobs were outsourced, and the outsourcer paid less than the council had, and employed some of the same women. Those women tried to bring an action for equal pay, but the CJEU ruled that while the articles themselves don’t require the two comparison jobs to be from the same employer, in order to have someone accountable for the discrepancy, there must be a single source. In this case, no single source, so doesn’t fall under Art 157.
Significance: Same employer principle
C-320/00 Lawrence
Facts: Female speech therapists making an equal pay claim compared to male clinical psychologists. Both jobs required degrees and similar duties.
Significance: Art 157 does not require two employees to have the same job, but rather perform a job of equal value. Established by comparing pre-requisites and duties. Real need of the business (if appropriate and necessary) is an objective justification for indirect discrimination. Also established that where the statistics are used to evidence indirect discrimination, the burden of proof shifts from claimant to the employer to explain the discrepancy is based on objectively justified factors rather than sex discrimination.
C-127/92 Enderby
Facts: Part-time worker employed by a department store brought a claim against an employer, since she was on a lower hourly rate than her full-time male counterpart.
Significance: Lower hourly rate of pay for part-time workers than full-time workers was considered indirect discrimination since it disproportionately affected women. Could be justified.
Jenkins
Facts: National law said older public servants could only work part-time if they had worked full-time for at least 3/5 of the preceding years. Was ruled indirectly discriminatory since more women than men were part-time workers, but could be justified. On age, it was ruled unsuitable at unblocking the employment market, as it discouraged people taking part-time roles since they would not benefit from the scheme. Also ruled that while budgetary considerations may be factors in these provisions, they are not in themselves a valid justification.
Significance: Cost in itself is not a valid justification for indirect discrimination.
Steinicke
Facts: Employee dismissed for undergoing gender-reassignment surgery. Was ruled to be direct discrimination on basis of sex under equal treatment directive.
Significance: Gender identity cases fall under equal treatment and Directive 2006
P v S
Facts: Train operator granted travel concessions to the partners of their employees, but would not do this for same-sex couples. Was ruled not gender discrimination, since it equally discriminated against gay men and gay women.
Significance: Sexual orientation does not fall under equal treatment/Directive 2006
Grant v South-West Trains
Facts: Employee went on maternity leave. New hire filling in got pregnant and was fired. Was ruled direct discrimination. Supported by fact that replacement was hired on a permanent basis.
Significance: Firing pregnant women is direct discrimination and cannot be justified, even if it’s replacing someone on maternity leave.
Webb v EMO Air Cargo
Facts: Employee hired on temporary maternity cover. She was pregnant at interview and lied about it. Court ruled she had the right to lie since it’s an illegitimate question. Court ruled pregnancy is an absolute protection, so employee could not be dismissed even from a short term contract.
Significance: Pregnancy is an absolute protection against dismissal, including fixed term contracts.
Tele Danmark
Facts: Part-time cashier had a lot of pregnancy complications and as such spent a lot of time on sick leave. After coming back to work, she was off sick again for 100 working days related to pregnancy complications. CJEU reference concluded that the sick leave after returning to work should be treated as any other type of sick leave, but that any sickness during maternity leave couldn’t contribute to the “clock”.
Significance: Illness during pregnancy does not allow dismissal. Returning to work post-maternity leave with illness related to pregnancy: dismissal only permissable if a man would be fired under same circumstances. Clock on sick leave restarts at end of maternity leave.
Hertz v Aldi
Facts: Spanish worker employed by the municipality on several subsequent contracts had her contract terminated after they found out she was pregnant. They did not have to specify reasons for non-renewal, so could have been pregnancy related.
Significance: Non-renewal of a FTC is not discrimination unless motivated by the fact that the worker is pregnant. Employers under EU law don’t have to give reasons for non-renewal of contracts.
Jimenez Melgar
Facts: Workers employed by Northern Ireland Health Services lost out on a retroactive pay rise following union negotiations because they were on maternity leave.
Significance: Pregnancy Directive and Equal Pay provisions don’t require employers to pay full salary during maternity leave, however if that salary would have been subject to any pay rises but for the pregnancy, then the pregnant worker should still benefit from the pay rises.
Gillespie
Facts: Pregnant worker on sick leave most of pregnancy due to complications. Staff sick pay policy did not discern between pregnancy-related illness and other illness. Was down to half pay when she went on maternity leave, then received normal maternity pay, then after she was still on sick leave so back on half pay. Was ruled not discriminatory, provided the amount of pay is not so low as to undermine the objective of protecting pregnant workers.
Significance: Treating pregnancy-related illness the same as general illness is not inherently discriminatory.
Mckenna
Facts: Employees of Ministry of Agriculture in Bavaria could be promoted after two years of service, or four years if part time. Was held to be indirect discrimination as more part time workers were women than men. To be justified and proportionate, the part-time worker must be given opportunity to demonstrate same skills as full-time equivalent.
Significance: Example of indirect discrimination and test in fact.
Gerster
Facts: Police officer in Northern Ireland. Her contract was not renewed during the Troubles, as officers were required to carry firearms and females weren’t permitted to carry firearms because of the risk. Police argued that women are more likely to be targets of assassination, so disproportionate risk to women. Court said it was allowable for certain policing activities only (proportionality) - not all officers were beat cops. The CJEU did not require any evidence to support the police’s assertion that there was a disproportionate risk to women. A lot of the decision-making was left to the national court.
Significance: Proportionality and justifications - responsiblities of role
Johnston
Facts: Front line combat jobs - royal marines in UK. She applied to a job as a cook, got the job, was retracted when they found out she was a woman. MoD argued that it was frontline combat (even as a cook) - court accepted it as an exception since the Marines are an exceptional and small force.
Significance: Example of Art 14(2) exception
Sirdar
Facts: German constitution prevented women from serving in the armed forces. There are two branches: citizens in arms (conscripted men) and professional army. Kreil wanted to work as a weapons engineer in the professional army, won at employment tribunal. Was ruled direct sex discrimination, didn’t fall under nature and context of the job since not frontline combat. Not proportionate, since the ban applied too widely across various military positions.
Significance: Art 14(2) exception denied
Kreil
Facts: German law said if man and woman who are equally qualified go for a promotion, then the woman should get the job if women underrepresented. Court struck down since affecting the actual result rather than just creating a level playing field.
Significance: Positive discrimination should look to level the playing field rather than create automatic results
Kalanke
Facts: National law saying if two equally qualified candidates, woman would get the job but with additional provision that the man would get the job if he has particular qualities of interest (i.e. other disadvantages in life).
Significance: Rebuttal of positive discrimination. Requires demonstration of discrimination suffered by the actual candidates personally, not generalizations.
Marschall
Facts: Sweden trying to promote women in Higher Education. A suitably qualified female candidate will be preferred even if better qualified man. Court struck down, similar to Kalanke
Significance: Positive discrimination can’t automatically affect the outcome. Any policy favouring an under-represented candidate must be dsigned to reduce de facto inequalities/career disadvantages and be based on transparent and objective job criteria.
Abrahamsson
Facts: Allowed women to use subsidised nursery places within ministry, men could not. Court upheld it because woman may have specific disadvantages, but in exceptional cases (such as single fathers) men must be permitted access to nursery.
Significance: Not officially overturned but now a doubtful authority because of Griesmar
Lommers
Facts: Male civil servant was a father, was granted a pension. Female civil servants were entitled to service credits per child in their pension, men were not. CJEU found it to infringe equal pay if excluding male civil servants who could prove they were the primary carer for their children.
Significance: Need to distinguish mothers from parents. Should protections given to women on the basis of presumed childcare responsibilities really be awarded to parents (regardless of sex) and not to childless women?
Griesmar
Facts: Spanish law permitted women leave during first nine months following childbirth. Men can also (provided their partner is also employed) take these breaks. Man with self-employed partner didn’t get these breaks, but were the sexes reversed he would have. Court looked at the purpose of the Spanish law - it was not related to breastfeeding or pregnancy-related conditions, but rather about parenting. Ruled discriminatory. Court noted that men without working wives being exempt perpetuates traditional gender roles.
Significance: When comparing types of parental leave, need to look at whether it’s related to the biological facts of childbirth or about child-rearing responsibilities.
Roca Alvarez
Facts: Employee challenged the automatic termination of his contract upon reaching compulsory retirement age. Was direct discrimination, and national law did not refer to an objective. CJEU ruled it could be permitted if objectively and reasonably justified by a legitimate aim, and the measures in place are appropriate/necessary for that aim.
Significance: Automatic retirement ages can compy with the Framework Employment Directive if justified and proportionate.
Palacios de la Villa
Facts: British charity challenged provision of UK law permitting an employer to dismiss workers when they reached retirement age. ECJ ruled that the justification could be inferred even if not explicit in the national law, but that such justification must be of a public nature (social policy, employment policy, etc) not up to an individual employers trying to maintain competitiveness/keep costs down. “Mere generalizations” would undermine the Directive’s effectiveness.
Significance: The burden of proof for justification for direct discrimination is higher than indirect discrimination. Justification must be in social policy, not left to individual employers.
Age Concern England
Facts: Claimant was a cleaner in Germany who was dismissed when she reached retirement age. Court ruled that it was discriminatory, but could be justified if proportionate. While the court acknowledged that while the objectives could be achieved through other means, since the national law did not automatically exclude pensioners from the labour market, so the claimant could go find another job, it succeeded on proportionality.
Significance: Assessment of the justification and proportionality need to consider a holistic assessment of the protections available to pensioners, labour market conditions, and features of the job in question.
Rosenbladt
