5. Sex discrimination in the case-law of the European Court of Justice
RITORNA AL SOMMARIO
The Luxembourg Court has been called on various occasions to rule on discriminatory behaviour directed against women (1). Since it is impossible to deal extensively with all of them, we shall briefly recall some recent cases that have made a particular contribution to the development of rules and concepts on sex equality. In Webb (2) the Court stated that it was unlawful for an employer to terminate an employment contract because pregnancy prevented the employee from fulfilling a fundamental condition of the contract (3). Similarly, in Habermann-Beltermann the Court reasoned that the temporary unavailability of a pregnant worker employed without term for night work because of a statutory ban on night work for pregnant women could not justify dismissal for the incapacity to perform her working duties, even if this imposed a financial burden on the employer, since this would amount to discriminatory behaviour (4).
If we analyse the most recent case-law of the ECJ in the field of equal treatment between men and women, we can group the decisions under two main headings: direct discrimination and indirect discrimination. Many cases concern social security, an area of great importance from a factual point of view (5). As far as direct discrimination is concerned, most of the cases have centred on application of art. 119 EEC and the principle of equal pay (6), and non-appointment or dismissal because of pregnancy (7). In all cases, the reasoning of the court was straightforward: the difficult issue, especially in cases concerning equality of pay, was to establish whether the claim was classifiable among the legal positions protected by the Community measure; once this question had been decided, the Court had merely to recognize that certain conduct amounted to discriminatory practice in order to strike it down (8).
The structure of indirect discrimination cases is rather more complex (9). If we take one landmark decision, Danfoss (10), the step-by-step development of the result is immediately apparent; in this case the Court had first to define the circumstances that constituted evidence of indirect discrimination: an employer granting different increments for flexibility, vocational training and seniority to equal pay grades. This in itself could not be deemed discriminatory behaviour, but statistics showed that the average pay of male workers were considerably higher than that of female workers (so-called "disparate impact"); on this basis the Court therefore reversed the burden of proof, requiring the employer to demonstrate that his practice was not discriminatory, and also stipulating that the simple lack of discriminatory intent would not suffice (11). The employer would have to prove that the adverse effects were linked to lawful social aim: and these justifications would be scrutinized by national courts. The logical process proceeds in three steps: first, the Court verifies that formally neutral behaviour causes discriminatory effects; secondly, once this has been established, the Court enjoins the author of that behaviour to prove that these effects were due to admissible justifications, fixing a very strict approach to these legal requirements; finally, the Court places on national courts the onus of verifying the correspondence of the justification with compelling social policy aims (12). The global approach refrains from using exclusively formal criteria, and focuses instead on the factual context, trying to obtain a 'total picture' that will enable concrete assessment of the situation (13): "The value of the concepts in indirect discrimination and equal value is that courts can look behind the narrow constraints of formal equality and address the position on women as it is" (14).
(1) Among the roughly 80 cases decided in this field, approximately 10 arise from direct actions by the Commission (art. 169 EEC); the rest stem from requests for preliminary rulings by national courts (art. 177 EEC).
(2) Webb, C-32/93  ECR I-3567; s. C. Boch, note, (1996) 33, 547-567. After the decision by the ECJ, the case has returned to the House of Lords: Webb v. EMO Air Cargo (U.K.) Ltd.,  1 WLR 1454; s. E. Szyszczak, "Pregnancy and Sex Discrimination", (1996) 21 Eur. L. Rev. 79-82.
(3) The Court nevertheless added that this rule was applicable to permanent employment contracts, since in this case unavailability due to pregnancy is for a limited time as compared to the total duration of the contract. By contrast, this would seem to imply that pregnant women can be dismissed under fixed term employment contracts, since the duration of the absence would be substantial. This would be an unfortunate outcome, because women would be more exposed to discriminatory behaviour for jobs with, by definition, a lower level of protection. S. H. Fenwick, T. Hervey, "Sex Equality in the Single Market: New Directions for the European Court of Justice", (1995) 32 CML Rev. 443, pp. 452-453.
(4) Habermann-Beltermann, C-421/92  ECRI-1657. The Court repeated that its consideration applied only to permanent jobs. The case is particularly important for several reasons. First, it established the rule that a binding provision of a Community directive (in this case of directive 76/207/EEC) has a blocking effect on national provisions that would deprive it of its effet utile (in that case §§ 119 and 134 of the German BGB, concerning voidability on the ground of mistake and nullity for breach of a statutory prohibition). Secondly, Advocate General Tesauro proposed an anticipatory interpretation of the pregnancy directive (92/85/EEC), which prohibits protection measures for pregnant women that result in their exclusion from the labour market (art. 7). This directive had entered into force, but its expiry period for transposition had not yet elapsed at the time of the decision. S. G. Betlem, "The Effet Utile of Indirect Effect", (1995) 2 Maastricht J. Eur. Comp. L., p. 73 ff.
(5) S. E. Ellis, "Recent Case Law of the Court of Justice on the Equal Treatment of Women and Men", (1994) 31 CML Rev. 43.
(6) Barber, C-268/88  ECR I-1889 (redundancy payments and private pension schemes must be considered pay within the meaning of art. 119 EEC; nevertheless the Court, fearing disastrous economic consequences for national security systems, limited the temporal effects of the ruling to cases subsequent to that decision; on this important issue s. already Defrenne II, C-43/75  ECR 445); Foster, C-188/89  ECR I-3313 (vertical direct effect of article 5 of directive 76/207 forbidding differential age limits in relation to dismissal); but s. Neath, C-152/91  ECR (employer contributions for pension entitlements can be differentiated between men and women because women have statistically higher longevity, and such remuneration is not pay within the meaning of article 119 EEC); and Birds Eye Walls, C-132/92, 9 November 1993 (employer contributions for pension entitlements can be lower for women employees because they have a statutory right to retire at an earlier age than men).
(7) Dekker, C-177/88  ECR I-3941 (non-appointment of a pregnant woman is dicriminatory and cannot be justified by the fact that the employer must bear a financial loss owing to the fact that not all maternity pay is refunded by the insurance fund); Stoeckel, C-345-89  ECR 4047 (a general prohibition of night work for women contained in a national statute violates art. 5 of directive 76/207, which requires equal working conditions for men and women); Marshall II, C-271/91  I-4367 (a national provision that limits the compensation due to discriminatory practices, in this case a statutory ceiling on damages, violates art. 6 of directive 76/207, which requires member states to take all necessary measures to ensure that persons wronged by discrimination may pursue their claims by judicial process).
(8) Note that the Court has constantly held that pregnancy discrimination is direct discrimination: s. e.g. Dekker, C-179/88  ECR I-3979: "only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex" (p. 3973).
(9) Rinner-Kuhn, C-171/88  ECR 2743 (limitation of sick payments to workers working more than a minimum of required hours amounts to indirect discrimination if most part-time workers below that limit are women; objective justifications are a question of fact to be established by national courts, but they must relate to a necessary aim of social policy, and be suitable and requisite for attaining it); Kowalska, C-33/89  ECR I- 2591, Nimz, C-184/89  ECR I-297, Botel, C-360/90  IRLR 423 (limitation of various kind of payments only to full-time workers amounted to indirect discrimination, since many more women were part-time workers). Note that over 80% of part-time workers in the European Union are women.
(10) Danfoss, C-109/88  ECR 3199.
(11) In spite of this, in his conclusion in the Kalanke case Advocate General Tesauro remarked that "la suos-répresentation des femmes dans un segment donné du marché du travail, meme si elle constitue l'indice d'une disparité, n'est pas necessairement imputable à une volontè consommée de marginaliser les femmes. De là decoule l'élement arbitraire inhérent à tout traitement préférentiel réservé, de manière mécanique, au groupe sous-représenté et uniquement fondé sur ce motif" (par. 24).
(12) The classification of certain issues as "facts", and the consequent competence of national courts to assess them has dual significance: it may correspond to a sound division of tasks between judicial organs, but it may also be a way for the European Court to avoid deciding on controversial issues.
(13) S. Enderby, C-127-92, 27 October  ECR, CG, 1994, 767: the case concerned two separate collective agreements for speech therapists and clinical psychologists, where jobs of equal value received different remuneration: The employer claimed that the fact that women were more numerous in lower paid jobs was not related to any discrimination, since there were no barriers or conditions on them in the other medical professions, and the pay differentials resulted from collective agreeements signed between the same employer and the same trade unions. The Court rejected the argument that the existence of a barrier or a condition must be proved in order to determine discrimination: suffice it to show clearly that the existence of separate collective agreements and different pays penalizes women more than men. The rule seems sound, because in the case of structural and institutionalized discrimination the requirement of proving the existence of a barrier would make it impossible to strike down indirect discrimination, thereby perpetuating indefinitely unbalanced situations. The Court has nevertheless refrained from broadening the rule to the effect that all "market forces" justification is unacceptable in indirect discrimination cases, limiting it to collective agreements. S. A. Rivara, "Discriminazione, giustificazione ed effettività nella recente giurisprudenza della Corte di giustizia delle Comunità europee", (1995) Lavoro e diritto 79, at 96-98; H. Fenwick, T.K. Hervey, "Sex Equality in the Single Market: New Directions for the European Court of Justice", (1995) 32 CML Rev. 443, at 461-469.
(14) H. Fenwick, T.K. Hervey, "Sex Equality in the Single Market: New Directions for the European Court of Justice", (1995) 32 CML Rev. 443, at 463.