Equal opportunities refers to an equal distribution, among individuals, of opportunities for education, training, employment, career development and the exercise of power without their being disadvantaged on the basis of their sex, race, language, religion, economic or family situation, and so forth. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 contains provisions to implement the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
Equal opportunities constitutes the fourth pillar of the European Employment Strategy (EES), following on from the EU’s extensive experience of promoting equal opportunities for women and men, as embodied by the ‘mainstreaming’ policy commitment of Article 8 TFEU: ‘In all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women.’
Furthermore, the 1998 employment guidelines focused on tackling gender gaps in employment (both generally and in particular sectors), and on reconciling work and family life, via measures including adequate childcare provision and facilitating return to work after absence.
The Commission, in its guidelines for the 1999 NAPs, introduced the concept of ‘gender mainstreaming’, whereby equality between the sexes must be a component of every employment policy conducted under all pillars of the Strategy. The 2002 employment guidelines instruct Member States to address equal pay, the gender impact of tax and benefit systems, consultation with gender equality bodies, gender impact assessments under each guideline, and the development of separate indicators to measure progress on gender equality in relation to each guideline.
Another evaluation of progress under the equal opportunities pillar (Taking stock of five years of the European Employment Strategy, COM (2002) 416, 17 July 2002) emphasised the impetus given to related policies, particularly by the introduction of gender mainstreaming across all of the pillars. Over this period, it was found that women had been the main beneficiaries of newly created jobs, the gender gap in employment rate was reduced from 20% to 18%, and the unemployment gap had fallen from 12% to 9%. However, the assessment criticised the relative lack of engagement by social partners, for example, in the areas of pay differentials (which was still 16% in the private sector in 1998) and parental leave where governments are expected to meet targets for childcare facilities by 2010.
Although gender formed its primary focus, the equal opportunities programme has also been applied to other groups excluded from the labour market. For instance, following the Amsterdam Treaty, the new Article 19 TFEU granted competence to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’. Following earlier initiatives, the 1998 Employment Guideline 19 promoted the integration of people with disabilities into working life. The 1999 employment guidelines requested that Member States give ‘special attention to the needs of the disabled, ethnic minorities and other groups and individuals who may be disadvantaged, and develop appropriate forms of preventive and active policies to promote their integration into the labour market’ (Council Resolution on the 1999 employment guidelines, ). Furthermore, the 2002 guidelines included provisions for developing policies for ‘active ageing’ (Guideline 3) and for promoting social inclusion by enhancing access to employment (Guideline 7).
Formal equality embodies liberal notions of equal opportunity that emphasise procedural equality. Every person is to be helped to compete equally on the basis of their individual talents. Sources of discrimination are to be removed and positive action is limited to compensation for disadvantage.
The concept assumes that individuals may act autonomously to make independent choices, and that open and free competition guarantees a fair outcome. However, concern with equality of opportunity at the outset does not necessarily lead to equality of outcome, and the process of competition itself is not necessarily neutral. People treated differently in the past may thus remain in dissimilar positions and discrimination may be perpetuated. Indeed, this has traditionally been regarded as problematic for women, the construction of whose roles in the ‘private’ sphere have helped to determine the nature of their participation in the ‘public’ sphere of the labour market. Formal equality is often criticised for its inadequacy in a world where access to material and symbolic rewards is structured along gender lines, a clear indication of which is persistent occupational sex segregation of the labour force.
Substantive equality concerns an equitable distribution or result (an equality of outcome), as opposed to equality of opportunity or treatment.
This approach calls for direct intervention in workplace practices to achieve a fair (representative/proportional) distribution of outcomes. It adopts a group, as opposed to individual or liberal, model of justice. In the workplace, it is associated with such measures as quotas and preferential hiring. It has sometimes been regarded as an approach that compensates for the limited or disproportionate impacts of formal or liberal approaches.
European equality law adopts elements of both formal and substantive equality approaches while some national applications of European law have favoured an individualised, liberal conceptualisation of equality. Increasingly, however, intervention aimed at redistribution has gained currency, as indicated by the collectivisation of individualistic processes in the labour market.