The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law ‐ A Conceptual Analysis

Abstract

The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.

The European Construction Social Partners: Gender Equality in Theory and Practice

“…The apparently understated Scandinavian position is perhaps attributable to the approach to equality measures and legislation in these countries, which falls within the socialdemocratic model whereby men and women engage as equal individuals in the labour market (Esping-Andersen, 1990). Whilst this is associated with a high level of female labour market participation, it also means that equality policies are firmly based on the principle of equal treatment and special measures for 'disadvantaged' groups have not been common (Michielsens et al, 200l;Peters, 1996).…”

Top university managers and affirmative action

“…Nevertheless they are also controversial as they can be perceived by beneficiaries as similar to charity, welfare benefits or preferential treatment that translates into inferiority (Fraser, 1997) and at the same time allow the dominant group to consider itself discriminated against because such programmes privilege women (Morley, 2006). There has therefore been some scepticism about AA's capacity to effectively improve gender equality, especially when one considers the use of quotas in the political system (Peters, 1996).…”

Leaders’ Orientations to Diversity: Two Cases from Education

“…Early European legislation conceived an issue to be unequal access to education, training, employment and consequently unequal distribution of material and affective rewards. The appropriate response was mooted as treating all equally (Peters, 1996). Men and women, people of different ethnic backgrounds and dis/abled were to be treated strictly the same.…”