Constitutionalising Equality in the European Union: Tolerance and Hierarchies
| Author | Anne Morris |
| Published date | 01 December 2005 |
| Date | 01 December 2005 |
| DOI | http://doi.org/10.1177/135822910500800203 |
International Journal
of
Discrimination and the Law, 2005, Vol.
8,
pp. 33-52
1358-2291/2005 $10
© 2005 A B Academic Publishers. Printed in Great Britain
CONSTITUTIONALISING EQUALITY IN THE EUROPEAN
UNION: TOLERANCE AND HIERARCHIES
ANNE MORRIS
University
of
Liverpool, UK
ABSTRACT
Equality was
amongst
the founding principles
of
the
European
Economic
Commu-
nity, based
on
the need for freedom
of
movement
and
fair competition
rather
than
on
adherence to ideals
of
social justice.
The
recent legislative developments which
have introduced laws prohibiting discrimination based
on
race, sexual orientation,
disability
and
religious belief represent
not
only the inclusion
of
many
more
groups
within the legislative matrix,
but
also a challenge
to
the traditional ideas
of
what
is
meant
by equality
and
to
institutional ways
of
addressing discrimination. This
article will consider
how
the very 'private' characteristics
of
belief
and
sexual
orientation
may
invite considerations
of
freedoms
and
rights within a rights
based discourse, albeit within the workplace.
It
will also
draw
attention
to
the
impending problems
of
multiple discrimination.
INTRODUCTION
The
Treaty
establishing
a
Constitution
for
Europe
(the
Constitution)
1
has
refocused
attention
on
the
problematic
nature
of
equality,
not
simply
in
the
sense
of
what
it
means
to
be
equal,
but
also
on
how
equality
is
to
be
achieved
in
such
a
diverse
community
as
the
expanded
European
Union,
operating
at
many
different
levels -
European,
national,
institutional
-
and
in
many
different
spheres
of
activity.
The
political
debates
surrounding
the
Constitution
have,
certainly
in
the
United
Kingdom,
concentrated
on
what
the
Constitu-
tion
is
not
setting
out
to
do
rather
than
on
what
it
might
achieve
(Goldsmith,
2004).
Particular
emphasis
has
been
laid
on
the
fact
that
the
competences
of
the
European
Union
will
not
be
extended.
In
the
UK
White
Paper
on
the
Treaty
Establishing
a
Constitution
for
Europe
(Cm
6309,
Sept
2004)
for
example
it
is
stated
that
'the
Constitution
is a
means
to
an
end,
not
an
end
in
itself'
(para.
12)
and
that
it
will
not
change
the
EU's
powers
on
human
rights
(para
13).
Those
competences
have
traditionally
been
market
based
and
the
protection
from
discrimination
available
to
individuals
has
been
concentrated
principally
on
the
labour
market.
2
Conversely,
the
34
has
traditionally
had
a
tan-
gential
effect
on
the
individual,
as
opposed
to
collective,
rights
of
workers
within
employment
(Ewing,
1998).
Dismissal
on
grounds
of
political
affiliation
has
been
held
to
interfere
with
fundamental
rights
3
but
there
has
been
a
tendency
to
interpret
the
Convention
narrowly,
to
the
extent
that
it
has
been
held
that
a
worker
who
wishes
to
exercise a
particular
right,
for
example,
freedom
of
religion,
should
either
not
apply
for,
or
resign
from
any
occupation
which
restricts
it
(Stedman
v.
UK
(1997) 23
EHRR
CD
168).
Now
that
the
Charter
of
Fundamental
Rights
of
the
Union
is
included
as
part
of
the
Constitution,
the
question
arises
as
to
what
difference -
if
any
-
this
will
make
to
the
jurisprudence
of
the
European
Court
of
Justice
in
its
approach
to
non-discrimination,
provision
for
which
is
currently
contained
in
Article
13
EC,
and
replicated
in
Art
111-124
of
the
Constitution.
The
view
of
the
UK
Government
in
its
White
Paper
on
the
Treaty
(Cm
6309) is clear:
...
in relation to Union law, the Charter
of
Fundamental Rights
showcases key social and economic rights and principles
that
the
Union Institutions
and
Member States when they are implementing
Union law are
bound
to respect
and
observe. However, the Charter
creates no new powers for the EU,
nor
does it alter any
of
the
EU's
existing powers. (para.
66)
The
question,
then,
is
how
the
European
Court
of
Justice
(ECJ)
will
choose
to
interpret
the
scope
of
'existing
powers'.
This
paper
seeks
to
highlight
some
of
the
problems
which
arise
from
the
expanded
equality
provisions
in
EU
law,
but
also
to
propose
some
rather
more
positive
(if
speculative) possibilities
which
may
result
from
the
new
constitutional
order.
EQUALITY
IN
THE
NEW
CONSTITUTIONAL
ORDER
Sex
equality
has
always
been
at
the
heart
of
the
European
'project'
4
although
initially
this
derived
from
the
economic
objectives
of
the
Community
rather
than
a
commitment
to
social
justice
and
fairness
(Ellis, 1998;
Barnard,
2000).
When
the
Treaty
of
Rome
established
the
principle
of
equal
pay
for
men
women
doing
equal
work
and,
later,
work
of
equal
value
5
it
did
so
in
order
to
prevent
distortion
in
competition
as
between
those
states
with
more
generous
employ-
ment
protection
legislation
(France)
and
other
founder
member
states.
Later,
however,
the
purely
economic
rationale
gave
way
to
a
recognition
that
equality
between
the
sexes
was
not
only
an
economic
goal
but
also
a social objective.6
Thus
the
ECJ
held
in
1978
in
Defrenne
v.
Sabena
(No.3)
149/77 [1978]
ECR
1365,
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