Positive Action for Women in Employment: Time to Align with Europe?

In recent years positive action to improve women's position in the labour market has risen up the political agenda, with measures ranging from quotas to special training. The legal framework has been slower to change. Initially seeking to eliminate all forms of discrimination, it now reflects a more sophisticated approach, attempting to achieve substantive equality. This may encompass measures which appear to disadvantage men but are aimed at rectifying women's structural, economic or historical disadvantage. We investigate the limits imposed on EU member states' ability to take positive action under Community law, and examine the much narrower provisions of the Sex Discrimination Act. We argue that the time is now ripe, with the ongoing review of equality law, to reappraise domestic law and to use the freedom provided under Community law to expand the scope of positive action under the Sex Discrimination Act.     

Affirmative Action: A German Perspective on the Promotion of Women's Rights with Regard to Employment

This paper discusses affirmative action policies in Germany. After German reunification, women from both east and west had hoped for a new codification of their rights, including positive obligations on the state to promote gender equality. However, the amendments to the Basic Law in November 1994 did not clearly endorse this approach. Opinions still differ as to whether Articles 3(2) and 3(3) of the Constitution allow for affirmative action with regard to women's employment. In 2001 quotas for the public employment sector were finally introduced, but the use of quotas for private sector employment still faces serious opposition. Nevertheless, the concept of affirmative action is not new to the German legal system: since the eighteenth century, quota schemes have been used to ensure the employment of (war-) disabled persons. This article examines the different approaches to employment quotas for women and disabled persons, and critically evaluates the reasons for divergence.     

Affirmative Action in the Legal Profession

This article examines whether the legal profession should use quotas and decision-making preferences in recruitment and promotion in favour of women, ethnic minorities, and those from socially disadvantaged backgrounds. It argues that this is necessary to eradicate current patterns of discrimination and disadvantage. It also argues that quotas and decision-making preferences do not necessarily conflict with appointment or promotion on merit, and hence that consequent unfairness to other applicants is more apparent than real. Moreover, any potential stigmatization of the beneficiaries of affirmative action is outweighed by the advantages in reversing the under-representation of women, ethnic minorities, and those from socially disadvantaged background, thereby challenging perceptions of their inferior qualities as lawyers. Finally, practical problems in the implementation of affirmative action are considered and argued to be insufficiently serious to stand in the way of its introduction.     

The European Court of Justice and the Rhetoric of Affirmative Action

The recent Marschall decision by the European Court of Justice (ECJ) to uphold a principle giving precedence to women for promotions in the workplace seems promising for the future of affirmative action. At first glance, this decision seems to indicate that the ECJ has taken a different path, moving away from its earlier Kalanke decision which had jeopardised further development of affirmative action in the European Union. On a closer examination, both Kalanke’s sweeping ban of preferential treatment based on gender and Marschall’s new interpretation appear as discursive replies to the same dilemma: should the Court deny the normative objective of equality contained in EC law to generate meaning, thus turning equality into a mere formal principle and rendering judicial review trivial? Or should it embrace a substantive reading of the fundamental principle of equality between men and women, thus substituting the Court judgment for that of the legislature, and subverting the limits of the ECJ’s powers? The aim of this article is to analyse the ECJ’s rhetorical response to the complexities contained in affirmative action judicial review.     

Affirmative Action in Women's Employment: Lessons from Canada

The use of affirmative action to increase women's representation in employment is recognized under European Community law. The European Court of Justice has identified affirmative action permissible under EC law and what constitutes reverse discrimination, deemed incompatible with the equal treatment principle. Despite these developments, gendered occupational segregation — vertical and horizontal — persists in all member states as evidenced by enduring pay gaps. It is widely argued that we now need national measures which take advantage of the appropriate framework and requisite political will which exists at the European level. Faced with a similar challenge, the Canadian government passed the Employment Equity Act 1986 which places an obligation on federal employers to implement employment equity (affirmative action) by proactive means. Although subject to some criticism, there have been some improvements in women's representation since its introduction. This article assesses what lessons might be learned from Canada's experience.     

Women's law: methods,problems, values

Conclusion The five areas of women's law that I have chosen to focus — money law, housewives' law, paid-work law, criminal law and birth law — represent different coordinating perspectives on women's legal position. These perspectives could certainly have been supplemented by others, for example, discrimination law. The feminist perspective can also be used in several traditional areas of legal science e.g., social insurance law, tax law, family law etc. I, however, have chosen a problematic other than the traditional one: first, to underline the importance of theory through the development ofconcepts anddiscussions of values in women's studies in general; and second, to indicate the especial fields in focus within the Institute of Women's Law at the University of Oslo. Through the perspective discussed in this article we think that we are on our way to describe, explain and understand women's legal status. The fundamental aim is to improve women's position both in law and society.     

The Many Meanings of Equality and Positive Action in Favour of Women under European Community Law - A Conceptual Analysis

Abstract: The principle of equality of men and women as understood by Community institutions covers four distinguishable aspects. The first is equal treatment, defined in Community texts as the absence of legal gender discrimination. This concept focuses on individual rights and does not take into account the social context in which rules function. Second, the Community seeks to realise equal opportunities, understood as factual equality of chances. Third, Community law displays a concern for factually equal outcomes. The institutions accept legally different treatment that seeks to equalise unequal living conditions and inversely admit that facially neutral rules can have discriminatory effects. Finally, various documents conceive of gender equality as equal representation of the sexes in professional and public life. In the Kalanke decision of October 1995, the Court for the first time dealt with quotas in favour of women. It held that a national provision granting female candidates an automatic preference is incompatible with the right to equal treatment. The Court failed to acknowledge the tensions that arise from the coexistence of paradigms. An awareness of the multiplicity of concepts of equality, exhibited in Community law and rooted in the common constitutional heritage of the Member States, is however a prerequisite for a more sophisticated discussion of the issue of positive action.     

Import and production quotas for certain List I chemicals. Interim final rule with request for comment

In March 2006, Congress enacted the Combat Methamphetamine Epidemic Act of 2005, which mandates that DEA establish total annual requirements, import quotas, individual manufacturing quotas, and procurement quotas for three List I chemicals--ephedrine, pseudoephedrine, and phenylpropanolamine. DEA is promulgating this rule to incorporate the statutory provisions and make its regulations consistent with the new requirements.     

Constructing a Global Law-Violence against Women and the Human Rights System

This ethnographic analysis of one of the core human rights conventions suggests that despite the lack of enforceability of this convention and its operation within the framework of state sovereignty, it is similar to state law. The Convention on the Elimination of All Forms of Discrimination against Women, or CEDAW, the major UN convention on the status of women, articulates a vision of women's equal protection from discrimination and addresses gender-based violence as a form of discrimination. It had been ratified by 171 nation states as of mid-2003. Its implementation relies on a complex process of periodic reporting to a global body meeting in New York and a symbiotic if sometimes contentious relationship between government representatives and international and domestic NGOs. Like state law, it serves to articulate and name problems and delineate solutions. It provides a resource for activists endeavoring to address problems of women's status and turns the international gaze on resisting nations. Its regulatory strength depends on the cultural legitimacy of the international process of consensus building and related social movements to define social justice in these terms. Thus, like state law, its impact depends on its cultural legitimacy and its embodiment in local cultures and legal consciousness. This examination of CEDAW as quasi law extends our understanding of law as a plural and a symbolic system rooted in a particular historical moment of globalization.     

The Increasing Effectiveness of National Gender Quotas, 1990–2010

National gender quotas—policies that require a certain percentage of women candidates or legislators—are becoming more effective over time. Using data on 145 countries from 1990 to 2010, we document this trend with latent growth‐curve models. Part of the explanation for increasing effectiveness is that countries have ratcheted up targets for women's inclusion and that quotas are increasingly written in ways that make them more effective at achieving stated goals. Activists, political elites, and policy makers have learned over time which quota policies are most effective, resulting in quotas with provisions that more often lead to success. But, changes in rules alone do not account for the increasing effectiveness of quotas over time. It appears that changing norms about women's incorporation in politics are also increasing quota effectiveness regardless of policy design.     

Do Trained Dogs Discriminate Individual Body Odors of Women Better than Those of Men?*

Scent identification lineups using dogs are a potentially valuable forensic tool, but have been dismissed by some critics because of cases where a false identification was shown to have occurred. It is not known, however, why dogs appear to make more false indications to the odors of some persons than of others. In this study, human genders were compared as to the degree their individual odors are distinguishable or "attractive" to dogs. Six dogs were trained to smell an individual's hand odor sample and then find the matching hand odor sample in a lineup of five odors. Using one-gender lineups and two-gender lineups with different gender ratios, it was found that dogs trained for the study identified individual women's hand odors more accurately than those of men. It is hypothesized that this is either because of differences in chemical compounds making discrimination of women's odors easier, or because of greater "odor attractiveness" of women's scents to dogs.     

Achieving equal pay for comparable worth through arbitration

Traditional "women's jobs" often pay relatively low wages because of the effects of institutionalized stereotypes concerning women and their role in the work place. One way of dealing with sex discrimination that results in job segregation is to narrow the existing wage differential between "men's jobs" and "women's jobs." Where the jobs are dissimilar on their face, this narrowing of pay differences involves implementing the concept of "equal pay for jobs of comparable worth." Some time in the future, far-reaching, perhaps even industrywide, reductions in male-female pay differentials may be achieved by pursuing legal remedies based on equal pay for comparable worth. However, as the author demonstrates, immediate, albeit more limited, relief for sex-based pay inequities found in specific work places can be obtained by implementing equal pay for jobs of comparable worth through the collective bargaining and arbitration processes.     

Intimate partner violence against older women in Germany: prevalence and associated factors

Violence against women is a recognized human rights and public health issue, with significant impacts on women's life and health. Until now, several studies, most of them relying on small scale samples, have explored the prevalence and health effects of intimate partner violence against older women, whereas few have examined what actually puts older women at risk of intimate partner violence. This study is based on a secondary analysis of the first national survey on violence against women in Germany, looking at the prevalence and associated factors for physical and for sexual violence by the current partners of women aged 50 to 65 and women aged 66 to 86 years. The prevalence of violence in women's current relationships was 12% and 5%, respectively. In both age groups, women who had experienced violence during childhood and nonpartner physical or sexual violence after the age of 16 had higher odds of experiencing current partner violence. Current partner violence was associated only with women and their partner's level of education and women's vocational training among women aged 66 to 86 years. Relationships where one or both partners drank heavily in recent months were associated with higher odds of violence among women aged 50 to 65. Future studies on intimate partner violence need to recognize that women above reproductive risk are also at risk of current partner violence.     

Quotas: changing the way things look without changing the way things are

This paper argues that while quotas can quite easily be used rapidly to address the problem of insufficient numbers of women in representative political institutions, effective representation requires us to pay attention to far more than merely the numbers of women present. This article suggests that, in particular, we need to look at which kinds of women are made present by quotas, how these women gain office and what they do once they are there. Using the South African example as a case in point, the paper suggests that where women become representatives through mechanisms controlled by party political hierarchies rather than by way of more broad-based political processes reflecting real social change, quotas can act to legitimate and perpetuate women's actual absence of power rather than being an effective remedy.     

Gender Quotas in Politics: The Greek System in the Light of EU Law

Positive action is currently gaining momentum in the European anti-discrimination discourse and policy-making as a necessary and effective tool to achieve the goal of full and effective equality in employment. Gender quotas in politics, however, are thought to remain outside the normative scope of Community law, the dominant view being that candidature for elected public office does not constitute employment in the sense of the relevant provisions. This article seeks to examine the Greek quota system for women in politics in its dialectical relationship to the general equality discourse and with reference to the current normative framework in Europe. The aims are threefold: to assess the legality of positive action in favour of women in politics from the point of view of EU law, to evaluate the effectiveness of the Greek system in achieving its gender equality goals, and to identify the problems that quotas in politics may pose with regard to the principle of democratic representation. It will, thus, be argued that positive measures in politics, though generally compatible with the fundamental principles of justice and representative democracy, may nevertheless be inadequate—at least in their current form—to provide effective solutions to the unequal distribution of social and political power.     

Women in parliament: assessing the effectiveness of gender quotas in Poland

Gender quotas aim to increase women’s parliamentary representation. However, the effectiveness of quotas varies. This article explores this issue further by examining the case of Poland, where gender quotas were introduced in 2011. The Polish case presents an interesting puzzle. Although the overall number of women candidates increased almost twofold in comparison with the pre-quota period, this translated into only a slight increase in the number of women deputies in 2011 and 2015. Hence, the impact of quotas was limited. However, the partisan analysis shows that there was a significant variation among individual parties: whereas some parties promoted wholeheartedly women’s access to political office, other parties did not facilitate it. By drawing on rational choice institutionalism, this article shows that institutions and preferences of political parties matter for the effectiveness of gender quotas. In the case of ineffective gender quota policy, political parties have a final say in women’s parliamentary representation.     

Bosman—There and Back Again: The Legitimacy of Playing Quotas under European Union Sports Policy

The 1995 ruling of the European Court of Justice in Bosman was a pivotal point in the relationship between the European Union and sport. It has had an immense impact upon professional team sports, most notably football, in terms of liberalising the transfer system and abolishing player quotas. This paper will chart the development of a European sports law policy generally and will specifically discuss two current proposals concerning the reintroduction of playing quotas in football. We will examine the legality of these proposals with reference to Article 45 of the Treaty on the Functioning of the European Union and will evaluate the political context within which these proposals have been promulgated. It will be suggested that a possible solution, which should end legal uncertainty, could be the adoption of a collective agreement or directive based on the methodology of reflexive labour law.     

A Game of the Half: The Manageress and the Sex Discrimination Act

As the football industry continues in its struggle to balance its traditional regulations and practices with the demands of domestic and European law it is evident that entrenched attitudes within the game will have to be changed if the industry is to avoid further damaging litigation. One such area is in the appointment of football managers (or head coaches), where the practices of selection seem to contravene the most basic principles of employment law with regard to the Sex Discrimination Acts. This article argues that the appointment of ex professional players as Managers violates the prohibition on indirect sex discrimination, and asserts that being male is not a ``genuine occupational qualification' for the post. The article analyses case studies of football managers to substantiate its claims, and uses interviews carried out with coaches and players in the women's Premier League in order to discuss sex discrimination and the non-appointment of women to one of the most important posts in the football industry in more general terms. This revised version was published online in August 2006 with corrections to the Cover Date.     

Collateral damage: do gender quotas undermine party discipline?

Quotas are the most disputed instrument to promote equal representation of women. Today, political parties in more than 90 democracies apply them. Essentially, gender quotas are a manipulation of the electoral rules. Scholars of legislative politics have created an impressive knowledge of the effect of electoral rules on political behaviour. So far, this literature remains unconnected to the literature on gender quotas. Our study contributes to closing that research gap.     

Discrimination Towards Ethnic Minorities: How Does it Relate to Majority Group Members’ Outgroup Attitudes and Support for Multiculturalism

We examined how ethnic discrimination targeting ethnic minority group members would affect majority group members’ attitudes and multiculturalism towards ethnic minority groups in the context of Turkish–Kurdish interethnic conflict. Study 1 (N = 356) demonstrated that the extent to which majorities (Turkish) believed there was ethnic discrimination towards minorities (Kurdish) in the Turkish society was associated with positive outgroup attitudes and support for multiculturalism through decreased levels of perceived threat from the outgroup. Study 2 (N = 82) showed that Turkish participants who read bogus news reports about the prevalence of ethnic discrimination towards the Kurdish were more positive towards this ethnic group (higher levels of support for multiculturalism, culture maintenance, and intergroup contact) compared to participants in the neutral condition. Furthermore, participants who were presented with lower levels of discrimination (few companies have been discriminatory against the Kurdish) were more positive towards Kurdish people than participants who were presented with higher levels of discrimination (most companies have been discriminatory against the Kurdish). Regardless of the intensity of discrimination, information about the prevalence of ethnic discrimination improved majority members’ attitudes towards ethnic minority groups. Practical and theoretical implications of the studies were discussed.