Commission proposes amendments to 1976 equal treatment Directive

In June 2000, the European Commission published a proposal which aims to amend the 1976 EU equal treatment Directive. The main innovation concerns new provisions relating to sexual harassment, which is characterised as sex discrimination at the workplace. The proposal also amends the 1976 Directive in accordance with case law, Treaty changes and recent EU legislative proposals in the area of discrimination.

On 7 June 2000, theEuropean Commission issued a draft Directive amending Directive (76/207/EEC) on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions. As widely expected in the context of the Commission's previously expressed intention to issue a binding instrument in the area of sexual harassment, the proposal characterises sexual harassment as sex discrimination at the workplace. It also tightens some areas of regulation and modifies the 1976 Directive in order to take into account: over 40European Court of Justice (ECJ) judgments in the area of equal treatment over the past 25 years; the changes which have been made to the Treaty establishing the European Community (TEC); and the Commission's recent anti-discrimination proposals, issued in November 1999 (EU9912318F).

The Commission bases its justification for issuing the proposal on the following points:

• provision for equal opportunities within the framework of the TEC has been greatly enhanced since the entry into force of the Amsterdam Treaty on 1 May 1999 (EU9905175N). Equal treatment between women and men has moved from being originally a means to prevent distortion of competition to an explicit objective of the Community. Further, the new Article 13 of the TEC enables the Community to take action to combat discrimination on a number of grounds, including sex;

• in the Commission's view, an important and sensitive issue such as sexual harassment cannot be ignored any more and must be addressed at Community level; and

• over 40 ECJ judgments have interpreted the Directive closely, shedding light on the scope and limitations of provisions which are loosely worded. These include in particular those relating to occupational activities which can be excluded from the scope of the Directive, the protection of the specific condition of women, and the positive action measures which Member States may undertake.

Outlawing sexual harassment

The provisions of this new proposal which relate to sexual harassment have been the most eagerly awaited and are potentially the most controversial. The Commission first consulted the European-level social partners on this issue in 1997 (EU9703112N), at which time they could not agree to begin negotiations to achieve a European-level agreement, largely due to the resistance of theUnion of Industrial and Employers' Confederations of Europe (UNICE). The Commission indicated at the time that it was prepared to consider the possibility of issuing a proposal for binding legislation in this area and the new proposal is the result of these deliberations.

The proposal adds a new Article 1a to the 1976 Directive, making it clear that sexual harassment is deemed to be discrimination on the grounds of sex and defining it as "when an unwanted conduct related to sex takes place with the purposes or effect of affecting the dignity of a person and/or creating an intimidating, hostile, offensive or disturbing environment".

Indirect discrimination

An amendment to Article 2 of the 1976 Directive gives a definition of indirect discrimination as a situation where "an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex." This definition matches that contained in the Commission's proposed Directive regarding equal treatment in employment and occupation, issued in November 1999.

Exclusions from the Directive

The Commission notes that since the 1976 Directive has been in force, the ECJ has issued three important judgments regarding the interpretation of its Article 2(2), which allows Member States to exclude from the Directive's scope occupational activities and, where appropriate, the relevant training, for which "by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor." These three cases were: Johnston (Case 222/84) on 15 May 1986, concerning the fact that women police officers were not equipped with firearms or trained in their handling; Sirdar (C-273/97) on 26 October 1999, concerning the exclusion of women from the British Royal Marines; and Kreil (C-285/98) on 11 January 2000, concerning the exclusion of women from almost all military jobs in the German army (EU0001222N).

According to the Commission, the main conclusion which can be drawn from these cases is that the degree of discretion given to Member States on this issue is subject to strict scrutiny – it can only concern specific posts and Member States must periodically reassess the legitimacy of the exclusion.

Thus, an amendment to Article 2 of the 1976 Directive concerns exceptions which are related to genuine occupational qualifications, taking into account the abovementioned ECJ case law. It specifies more clearly to what extent differences of treatment are permitted, adding that "derogations to the principle of equal treatment remain within the limits of what is appropriate and necessary in order to achieve the aim in view."

Positive action

Positive action is an issue which has attracted a fair amount of controversy in recent years. Article 2(4) of the 1976 Directive provides that it is without prejudice to measures to promote equal opportunity for men and women, "in particular by removing existing inequalities which affect women's opportunities in the areas covered by the Directive". This provision was interpreted by three ECJ judgments – Commission v France (C-312/86) on 25 October 1988, Kalanke (C-450/93) on 17 October 1995 and Marschall (C-409/95) on 11 November 1997. In addition, further refinement was given in the Badeck and others (C-158/97) judgment of 28 February 2000.

The Commission believes that this set of case law allows the following conclusions to be drawn:

• the possibility of adopting positive action measures is to be regarded as an exception to the principle of equal treatment;

• this exception is specifically and exclusively designed to allow for measures which, although they appear to be discriminatory, are intended to eliminate or reduce actual instances of inequality;

• automatic priority to women regarding access to employment or promotion in sectors where they are under-represented cannot be justified; and

• such a priority may be justified if it is not automatic and if the measure guarantees equally qualified male candidates that their situation will be objectively assessed.

The Commission also notes that this area was clarified significantly by the new Article 141(4) in the Amsterdam Treaty, which states that: "the principle of equal treatment shall not prevent any Member States 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."

In 1996, the Commission issued a proposal to amend the 1976 Directive's provisions on positive action in the light of the ECJ judgment in the Kalanke case. This proposal has not been progressed, largely due to the fact that it was felt that the subsequent ruling in the Marschall case clarified the situation. The Commission now states that the new proposal makes the 1996 proposal obsolete.

Increased protection

The proposal offers a tightening of existing protection and the creation of certain new measures designed to promote and enforce equal treatment. An amendment to Article 2 of the 1976 Directive clarifies the right of women who have given birth to return to their job or an equivalent position "with no change in her working conditions".

Further, Article 3 is amended by the addition of a new paragraph referring explicitly to membership of and involvement in a workers' or employers' organisation or any professional organisation. This reflects a similar provision in the Commission's November 1999 proposal for a Directive regarding equal treatment in employment and occupation.

Article 6 of the 1976 Directive is completely reworded and expanded, taking into account ECJ case law regarding enforcement of the Directive. It now expressly states that judicial protection should continue after the employment relationship has ended. It also states that compensation may not be restricted by a fixed upper limit or by excluding an award of interest to compensate for any time lapse until the compensation is actually paid.

Finally, a new Article 8a is added, obliging Member States to set up an independent body to promote the principle of equal treatment between women and men. These bodies should be able to receive and pursue complaints from individuals relating to sex discrimination, undertake investigations or surveys and publish reports in this area. In addition, these bodies may pursue claims through an administrative and/or judicial procedure on behalf of the victim.

The role of the social partners

Article 2 of the proposal concerns the role of the social partners, obliging Member States to take "adequate measures" to promote social dialogue in order to foster equal treatment. This could include monitoring workplace practices, collective agreements, codes of conduct, research and exchange of experiences and good practice. Further, Member States should encourage the two sides of industry to conclude "at the appropriate level" anti-discrimination rules in the field of equal treatment.

Transposition

The transposition date for the provisions of the proposed Directive is set at 1 January 2002. Member States are also obliged to communicate within three years of the entry into force of the Directive all information necessary to enable the Commission to draw up a report on its application.

Reactions

Reactions to this proposal, which had been expected for some time, have largely been favourable, with the notable exception of UNICE. The employment and social policy Commissioner, Anna Diamantopoulou, stated that: "No one contests that sexual harassment takes place and that it is an unacceptable affront to the individual concerned, normally – but not always – a woman. Very few legal systems have yet got to grips with the notion of sexual harassment and this is in part attributable to the inherent difficulty in defining it. But this should not deter us from our duty to send the strongest possible signal that sexual harassment must be outlawed from the workplace."

The European Trade Union Confederation (ETUC), along with the European Women's Lobby (EWL), has welcomed the proposal, and in particular the fact that it clearly defines sexual harassment and recognises that it should be treated as a form of sex discrimination. However, both ETUC and EWL state that they would have preferred a more preventive and innovative approach to sexual harassment, in line with the provisions contained in the Irish Employment Equality Act 1999 (IE9909144F), which would oblige employers to take reasonable steps to create an environment free of harassment. Nevertheless, ETUC and EWL feel that this is "a first step in the right direction".

However, UNICE has stated that it does not agree with the proposal to define sexual harassment as sex discrimination at the workplace, believing that it is not appropriate for this matter to be regulated at European level. This was its main argument in deciding not to enter into social partner talks on this issue in 1997.

Commentary

It would appear that the sexual harassment provisions are the most controversial element of the new proposal, a fact which is understandable considering that the bulk of the other proposed amendments to the 1976 Directive reflect ECJ case law or changes incorporated into the Treaty, or are already contained in other recent proposals, such as the Commission's anti-discrimination proposals.

The nature of the draft Directive's journey through the EU decision-making machinery will be difficult to predict. As it is based on Article 141 of the Treaty, it is subject to qualified majority voting in the Council of Ministers. However, it is subject to the co-decision procedure, which could result in disagreement between the Council and the European Parliament and ultimately the setting up of a conciliation committee to draw up an accord. It is unclear what the incoming French EU Presidency's intentions are towards this proposal. However, the Swedish government, which holds the Presidency during the first half of 2001, has indicated that it wishes to make equal opportunities between men and women a priority and so this proposal is likely to be discussed at the latest during the first six months of 2001.

If this proposal is adopted in its current form, it will represent a significant advance in terms of EU equality legislation, treading new ground in the regulation of sexual harassment at the workplace. (Andrea Broughton, IRS)