Pursuant to Article 141 (4) every member state is entitled to adopt such policy to provide specific advantage to under-represented sex to bring about and maintain equality between men and women in their working life.
However there comes a certain point whereby this article is incorrectly used and thus becomes positive discrimination as it breaches Article 2(4) of Directive 76/207.
Under the Sex Discrimination Act 1975 amended 1986, it was designed not only to stop unlawful discrimination against women but also against men. This was a specific effort towards bringing equality between the sexes.
Positive Action and Positive Discrimination
The Sex Discrimination Act, does not allow positive action which gives priority to persons of either sex, however it was determined by the ECJ in Marschall v Land Nordrhein-Westfalen that legislation can be provided for preferential treatment to a particular sex. In this case there was a significantly less women than men in a particular post. In Lommers v Minister von Landbouw Natuurbeheer en Vissey, it was ruled by the ECJ that the fact that the employer provided nursery places for it’s female employee but not it’s male employees did not breach the Equal Treatment Directive as it was seen as a positive action.
There are provisions within the Sex Discrimination Act and the Race Relations Act that allow employers to gain a more balanced work force. These provisions allow employers to take positive action to encourage underrepresented sections of society (either female/male or of a certain racial group) to apply for positions in their place of work.
Positive Discrimination, whereby employers contradict the Equal Treatment Directive, is where there is specific favouring of a certain gender, in order to make up for their under representation. If it is shown that an employer is attempting to limit recruitment exclusively to members of a particular sex or racial group then this will be deemed unlawful.
This approach was followed again in Abrahamsson and Andersons V Fogelqvist, where an automatic preference was given in favour of a candidate from an under-represented sex in a recruitment process, as long as they were sufficiently qualified. However, it was held that this approach was incompatible with article 2(1) (4) of Equal Treatment Directive.
Under EC Law, Article 141(4), it states that to ensure full equality in practice between men and women in working life, principle of equal treatment shall not prevent any member state from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
However application of this article must not contravene the Equal Treatment Directive 76/207/EEC otherwise positive discrimination can be claimed.
In EFTA Surveillance Authority v Kingdom of Norway, in Norway employers were allowed to advertise a job open to one sex if that sex was heavily under represented. EFTA was to determine whether this contravened EC Law. In this case at the University of Oslo, there was a system under which the allocation of post-doctoral research resources involved the earmarking of certain posts to women. The University advertised 20 posts available for women only.
It was found that this was in contravention of the EEC Directive on Equal Treatment because it was held that this rule imposed by the University failed to adhere to Articles 7 and 70 of the EEA Agreement as well as Articles 2(1), 2(4) and 3(1) of Directive 76/207/EEC.
It was also noted that this directive recognises positive action in that it is allowed to encourage underrepresented members of society to take up roles in organisations, however sufficient flexibility needs to be shown in order to balance the requirement for promoting the underrepresented gender as well as giving candidates of an opposite gender opportunity to be assessed objectively. There should be a principle that the best qualified person gets the post.
The court also held that there is a need to increase awareness to factors such as female candidates being in a disadvantaged position compared with male candidates and therefore, sensible steps should be taken in order to achieve an equal balance between males and females.
The decision given does help the law combat discrimination and achieve equality between men and women. It understands the need for promoting positions to under-represented sections of society but also notes that there is a line to be drawn over the extent of this promotion. This ruling is an attempt to clarify further what is construed as positive action and what is positive discrimination. However it is still unclear on occasions because if a rule does not guarantee absolute and unconditional priority to women, it does not contravene the directive.
There are provisions under the Equal Treatment Directive which allow for Positive Action but in some cases what set out as being Positive Action can be construed as positive discrimination. In Kalanke v Freie Hansestadt Bremen, a man succeeded in claiming for unlawful discrimination due to the fact that he was passed over for promotion in favour of an equally qualified woman. The ECJ ruled that this contravened Directive 76/207 even though there was a provision in the law stating that women would be preferred to a male candidate if their qualifications were equal if they were under-represented.
To clarify positive action further, the EC amended article 2 of the Equal Treatment Directive to allow positive measures promoting equal opportunities for men and women however this positive action is still contrary to the Sex Discrimination Act 1975 in the UK.
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