Pregnancy, Equality and the European Court of Justice: Interrogating Gillespie
| Published date | 01 September 1998 |
| Date | 01 September 1998 |
| DOI | 10.1177/135822919800300203 |
| Author | Joanne Conaghan |
International Journal of Discrimination and the Law, 1998, Vol
. 3, pp
. 115-133
1358-2291/98 $10
© 1998
A B Academic Publishers
. Printed in Great Britain
PREGNANCY, EQUALITY AND THE EUROPEAN COURT
OF JUSTICE
: INTERROGATING
GILLESPIE
JOANNE CONAGHAN
Kent Law School, University of Kent, Canterbury CT2 7NS, UK
ABSTRACT
The object of this paper is to highlight and scrutinise the continuing difficulties
which characterise national and European judicial efforts to reconcile the appar-
ently conflicting needs of the workplace and its pregnant workers
. In particular, the
prevailing dominant legal conceptualisation of pregnancy as an aspect of sexual
equality generates an unsatisfactory indeterminacy and manipulability in relation to
the determination and application of women's legal rights
. This is well illustrated
in the decision of the European Court of Justice in
Gillespie v Northern Ireland
Health and Social Services Board [1996]
.
Both the decision itself and its legal
aftermath suggest that the difficulties traditionally associated with the application of
the equality principle to the condition of pregnancy are far from resolved
.
INTRODUCTION
The question of whether the principle of sex equality prohibits the
discriminatory treatment of pregnant workers has long been an issue
which has troubled courts and legislatures
. In the US, for example,
a series of leading cases in the 1970s and 1980s grappled with the
legislative and constitutional implications posed by the principle of
equal treatment on the one hand, and the need to accommodate preg-
nant workers on the other
.' Similarly, since the passing of the Sex
Discrimination Act 1976, UK courts and tribunals have adopted
diverse positions on the question of whether or not pregnancy dis-
crimination is sex-based and therefore prohibited under the Act
. Not
surprisingly, the European Court of Justice (ECJ), as final arbiter of
the scope and application of European sex equality law, is being
called upon, with increasing frequency, to resolve the thorny issues
to which this question gives rise
.
2
The application of the equality principle (traditionally conceived
in terms of the Aristotelian dictate that like should be treated alike)
3
to the condition of pregnancy has been the subject of extensive legal
and philosophical scrutiny, particularly among feminist scholars
. (See,
116
for example, Finley (1986)
; Littleton (1987)
; Bacchi (1992))
. In this
context, it is generally accepted that to view pregnancy as an aspect
of sex equality gives rise to (at least) two obvious difficulties
: firstly,
there is the problem of
comparison
.
If pregnancy discrimination is to
be said to violate the principle that like be treated alike, can men and
women be said to be `like' for these purposes? Can they be
com-
pared?
Secondly, a conceptual and political difficulty arises when
women seek to secure
differential
(but not disadvantageous) treatment
on grounds of pregnancy, for example, maternity rights at work
. Can
women assert that their pregnant condition entitles them to equal and
differential treatment at the same time? Can a pregnant woman be
`like' a man for some purposes and not for others?
One way of avoiding these difficulties has been to focus on the
limits of the concept of equality under consideration
. It has, for
example, been argued that the Aristotelian model of equality, predic-
ated as it is on notions of sameness and difference, is inadequate in
its failure to express or redress the experience of inequality arising
from disparities of power (MacKinnon, (1989), 215-249)
. It has also
been frequently asserted that the Aristotelian model is indeterminate
(More (1993), 63)
. Whether or not one thing is the same as or differ-
ent from another depends entirely upon the measure of comparison
applied
. It is the selection of the measure of comparison, not the
application of the equality principle
per se,
which determines the out-
come
. Moreover, because of the historical disparity of power between
men and women, the measure of comparison is traditionally one
which favours men or which defines them as the norm and women
(for example, on account of pregnancy) as the deviation (Smith
(1993)
; Sohrab, (1993))
.
The difficulties which courts and legislatures have confronted
when faced with the task of applying the principle of sex equality to
the condition of pregnancy are, it might be argued, an inevitable
reflection of these deeper philosophical and conceptual difficulties
.
After all, if the equality principle itself commands no particular out-
come, it is hardly surprising that its application produces many con-
fusing and conflicting results
. Moreover, if, as it is claimed, the
equality principle, as traditionally understood, fails properly to
encompass the power dimension which characterises and informs
women's disadvantaged position in the workplace, then it is likely
also that it will fail to redress it
.
The object of this paper is to consider, in the light of the recent
decision in
Gillespie v Northern Health and Social Services Board,
4
whether or not and to what extent the ECJ has been effective in its
efforts to resolve the complexities associated with the application of
the principle of sex equality to discriminatory treatment based on
pregnancy or its consequences . Does the judgement in
Gillespie
evid-
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