Discrimination and equality in employment
Within the field of employment, discrimination and equality apply in relation to gender, ethnic or racial origins and nationality, disability, sexuality, religion, transgender and age. Discrimination and equality are governed by the key principle that a worker should receive ‘no less favourable treatment’.
The EU has been an important force in combating discrimination and in promoting the equal treatment principle in employment and industrial relations. From the beginnings of the European Economic Community (EEC), its common market objective of fair competition among employers meant that the non-discrimination principle was at its core. Discrimination was initially the focus of EU attention in two respects. The EU Member States’ economic objective of creating a common labour market through the free movement of workers required the prohibition of discrimination on grounds of nationality (Article 45 TFEU) and the different treatment of workers who are nationals of a Member State of the EU is thus prohibited if based on grounds of their nationality. The zeal with which discrimination on this ground was pursued by European institutions established important principles when the same issues arose in the second context: gender equality or discrimination based on sex. Nevertheless, in the context of gender and work, there has been much debate over whether the EU has limited itself to formal equality of opportunity or has also sought to tackle substantive equality. The difference is of critical importance to equality between women and men in the labour market.
The scope of proscribed discrimination in employment and occupation has been extended beyond sex to encompass a wide list of other grounds. Council Directive 2000/43/EC prohibits discrimination on grounds of racial or ethnic origin and Council Directive 2000/78/EC prohibits various forms of discrimination: religion or belief, disability and work, age, gender reassignment and sexual orientation. Provisions similar to those in the field of sex discrimination were also made regarding the burden of proof. The condemnation of harassment as a form of discrimination, which the courts had introduced in the area of sex discrimination legislation, now applies to the other strands of discrimination. The role of specialist equality bodies at Member State and EU level in the enforcement of discrimination law has been enhanced, as for example in the case of the Fundamental Rights Agency (FRA) which is located in Vienna, Austria.
Initially the principle of non-discrimination was applied to gender-based discrimination in relation to equal pay for women and men (Article 119 EC, now Article 157 TFEU) as the ‘pay gap’ between male and female earnings was significant in every Member State. The concept of ‘pay’ was given a particularly wide definition, so as to include fringe benefits and eventually also occupational pensions. The legislation to promote equal pay depended on being able to show that there were comparable workers of the opposite sex whose pay was higher. However, occupational segregation in terms of gender, which meant that in many workplaces certain occupations were predominantly or exclusively occupied by one gender, made it very difficult in practice to identify such a comparator. In the case of equal pay, this was addressed when the principle was later extended to require ‘equal pay for work of equal value’ in Council Directive 75/117/EEC. In practice, this led to the development, particularly in larger workplaces, of job evaluation systems aiming to exclude discrimination claims on grounds of gender. However, despite the nearly two decades of equal value legislation, the pay gap between male and female workers in Member States still stands at about 25% in the private sector and about 15% in the public sector (in 2009).
The equality principle was expanded beyond equal pay by a 1976 directive to include a wider principle of equal treatment in employment for female and male workers, prohibiting discrimination directly or indirectly by reference in particular to marital or family status. This brought the law into many areas previously unregulated: access to employment, including recruitment, promotion, dismissal, vocational training, working conditions, pensions and social welfare. Specific directives required equal treatment in social security (Council Directive 79/7/EEC), outlawed discrimination in occupational social security (Council Directive 86/378/EEC and Council Directive 96/97/EC), and towards self-employed persons (Council Directive 86/613/EEC). However, as in the case of equal pay legislation, problems emerged with regard to the issue of proving discrimination. The situation was first examined in the case of sex discrimination, with the application of Council Directive 97/80/EC which reversed the burden of proof placing a primary obligation on employers to prove that they had not discriminated, once a difference in treatment had been established by the worker.
The limitations of the principles of non-discrimination and equal treatment in achieving equality were also recognised in provisions, first in the 1976 directive and then in Article 141(4) of the EC Treaty (now Article 157(4) TFEU) accepting practices of positive action, albeit of limited scope. While the European Court of Justice has been particularly sensitive to the use of quotas as a form of positive action, it has ruled that employers may favour the selection of a woman over a man, where both are equally qualified but where women are under-represented within the grade.
Through the case law of the European Court of Justice (ECJ), the principle of equal treatment for women and men was declared to be not primarily an economic but a social objective of the Community and therefore acquired the status of a fundamental principle of Community law. However, the prohibition of discrimination on the grounds of gender was not interpreted to cover discrimination on the grounds of sex or sexual orientation. Hence, while the ECJ held that it covered discrimination against transsexuals, it did not extend this to discrimination based on sexual orientation. This was only to be achieved through a Treaty amendment and a later directive. Discrimination also extends to cover transgender as a consequence of both ECJ and European Court of Human Rights (ECHR) rulings, and of adopting Council Directive 2006/54/EC, which makes specific reference to the issue of gender reassignment.
Both direct and indirect discrimination are outlawed. The former occurs where an employer treats an individual differently because they fall within one of the protected areas. The concept of indirect discrimination goes beyond this and is a fundamental element of the legislation. It allows the courts not only to deal with differences in treatment – direct discrimination – but also with apparently neutral policies which put a protected group at a particular disadvantage. An example in this regard would be having a policy requiring mobility in an employment contract where it is recognised that such a requirement is likely to exclude proportionately more women than men. Such policies can be challenged on grounds of their discriminatory effect and declared unlawful unless justified by the employer and proportionate in relation to the end being sought. The prohibition of direct and indirect discrimination, and the justification of the latter, raises complex questions in the case of employer practices and also in the case of discriminatory collective agreements.
Beyond the legal framework, the promotion of equal opportunities is a key Member State concern. This led to the designation of 2007 as the Year of Equal Opportunities. The European Commission has also sought to promote equal treatment through gender equality action programmes and through other initiatives to combat discrimination. The most comprehensive has been the adoption of the principle of gender mainstreaming, which is concerned with integrating equal opportunities for women and men ‘in the process of preparing, implementing and monitoring all policies and activities of the EU and the Member States, having regard to their respective powers’ (COM (95) 381 and Decision 95/593/EC, OJ 1995, L335/37). This requires taking systematic account of gender differences in the context of all policies including, but not restricted to employment and the labour market. The Commission has also adopted a Roadmap for equality between women and men (2006–2010) identifying six priority areas for EU gender actions. Some of the activities defined in the roadmap are funded through the Community Programme for Employment and Social Solidarity 2007–2012.
Within the general prohibition of non-discrimination, there are a number of strictly limited forms of discrimination that are permitted. These would include where gender, racial or ethnic origins, or disability constitute a determining factor but where there is a genuine occupational qualification that could only be met through a discriminatory selection procedure. Additionally, laws concerning the protection of women, particularly as regards pregnancy and maternity are permitted, even if they offer more favourable treatment to female workers. Indeed. Community provisions were enacted on pregnant workers and working mothers (Council Directive 92/85/EEC), including maternity leave and parental leave (Council Directive 96/34/EC), which allowed time off for caring responsibilities.
Although the sexual division of labour in the household is a key factor determining women’s position in the labour market, the Community, and notably the ECJ, was long reluctant to consider questions of family organisation or the division of parental responsibilities. However, demographic changes and an employment strategy aiming to increase female labour force participation have led to initiations on work-life balance. These have given rise to widespread practices including job-sharing, career breaks and flexible working time patterns.
Issues of discrimination may also be addressed through collective bargaining. At European level, the social partners have played a key role through the adoption of framework agreements, such as those on part-time work, fixed-term work and parental leave. The objective of the framework agreement on part-time work was not limited to combating discrimination but had a wider social significance. With a view to increasing female labour force participation, as well as extending the benefits of the non-discrimination principle to include male part-time workers, the agreement also aimed to promote part-time work opportunities. One further area where the principle of non-discrimination has been applied is in relation to fixed-term work, with the adoption of Council Directive 1999/70/EC of 28 June 1999, which, as with the provisions on part-time work, was based on a framework agreement concluded by the European social partners.
Thus, the non-discrimination principle has also come to play a role in the more general field of social exclusion and employment policy, including in the application of the EU’s external relations policy.