Positive Action After Kalanke
| Date | 01 November 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02699.x |
| Published date | 01 November 1996 |
| Author | Erika Szyszczak |
CASES
Positive Action After
Kulunke
Erika Szyszczak”
The acknowledged failure of EU intervention to bring about substantive equality
between the sexes has been documented,’ but attempts made to address some of
the institutional structures which lead to the lack of substantive equality have
attracted criticism and controversy, particularly the use of positive action
programmes.
Positive action embraces all measures which aim to counter the effects of past
discrimination, to eliminate existing discrimination and to promote equality of
opportunity between women and men, particularly in relation to types
or
levels of
jobs where members of one
sex
are significantly under-represented. There are three
broad forms of positive action schemes which are generally recognised in the EU.
First, a model consisting of measures intended to remedy the disadvantageous
situations which are characteristic of women’s presence in the labour market. The
objective here
is
to eliminate the causes underlying the lesser employment
or
career opportunities still affecting women’s work by intervening, in particular, at
the level of professional orientation and vocational training.
Secondly,
a
model favouring the attainment of
a
certain balance between family
and work responsibilities, and
a
more efficient distribution of these responsibilities
between men and women. Priority is given to measures concerning the
organisation of working time, the development of childcare infrastructure and
the reintegration of workers in the labour market after
a
career break.
Thirdly,
a
model based on the idea that positive action should aim to compensate
for past discrimination. Preferential treatment
is
prescribed in favour of categories
of under-represented groups. This often takes the form of quotas
or
targets. Quotas
can
be
rigid
-
determining a certain threshold to be reached without taking into
account the qualifications/merit of persons concerned,
or
fixing minimum
requirements to be fulfilled without any possibility of taking into account the
particular circumstances of
a
case.
Less
rigid
or
flexible quotas establish
preferential treatment in favour of
a
certain category provided that qualifications
are of equal value in relation to the post to
be
filled and that exceptional
circumstances are taken into account.
In Great Britain, positive action programmes have not been widely utilised. This
is largely because sections
4749
of the Sex Discrimination Act
1975
are
permissive and not mandatory, and also, because such programmes offend the
perceived symmetry of sex discrimination legislation in this country which still
*London School
of
Economics.
I
would like to thank Dr Dagmar Schiek for providing useful information for this
case
note.
1
Fredman, ‘European Community Discrimination Law: A Critique’ (1992)
21
ILJ
119;
Fenwick and
Hervey, ‘Sex Equality in the Single Market: New Directions
for
the European Court of Justice’
(1995)
32 CMLR 443; Mazey, ‘European Community Action on Behalf of Women: The Limits of
Legislation’
(1988)
27 JCMS 63; Meehan, ‘Sex Equality Policies in the European Community’
(1990)
13 JEI
185.
Q
The
Modern Law Review Limited
1996
(MLR
596,
November). Published by Blackwell Publishers,
108
Cowley Road, Oxford OX4
IJF
and
238 Main
Sheet,
Cambndge. MA 02142, USA.
876
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