The New Equal Treatment Directive: Plus Ça Change ...

Directive 2002/73 enacted by the Council and Parliament of the European Union introduces substantial and procedural amendments to the European Community's `old' Equal Treatment Directive 76/207, providing, in particular, clarification of the definitions of concepts such as direct and indirect discrimination and (sexual) harassment. Yet, while the European Commission has praised the progressive nature of the new European legislation, a critical assessment of its provisions reveals some serious shortcomings and a host of missed opportunities. Although the new Directive generally reflects the spirit of the case law of the E.C.J., it does so without any originality or pro-activism meaning that the European legislature has once again left the initiative of pursuing sex equality in the E.U. to the Court.     

European law as a lever for female workers at the national level: Belgium and the Equal Pay Directive of 1975

‘Equal pay for equal work’ is a longstanding feminist claim. In this regard, the 1975 Equal Pay Directive of the European Economic Community has generated momentum for women at the national level. Based on the Belgian case, we explain how national actors – and more specifically trade unions and their women’s committees – have used European law to foster wage equality. Despite the existence of binding norms since the 1950s, this principle of equal pay has been poorly applied. The implementation of the directive in the Belgian neo-corporatist institutional framework has given trade unions the possibility to secure an extensive interpretation of the directive’s general provisions. The assumption driving this paper is that this directive has generated momentum for change – though this is not a synonym of ‘a miracle solution’ – in Belgium regarding wage equality. More fundamentally, this study is about the intertwining of European and national laws and the way in which European norms can offer instrumental opportunities to national actors to impact their domestic polity and policies, here on social and gender matters.     

A Hazy Concept of Equality

K.B. is a woman working for the United Kingdom National Health Service (NHS) with a transsexual male partner. Her partner's male gender was not legally recognised in the United Kingdom and consequently they could not marry. Whilst the NHS pension scheme provides for the payment of a survivor's pension, this is only in respect of married partners. The European Court of Justice held that the combination of circumstances that prevented K.B.'s partner from receiving the survivor's pension amounted to sex discrimination in pay contrary to Article 141 of the Treaty establishing the European Community. At first sight, this decision appears to represent a strengthening of the concept of gender equality in European Union law. Yet, the reasoning provided by the Court lacks clarity and coherence. Moreover, the reach of equality is compromised by the Court's determination to exclude any confrontation with the privileged status of heterosexual marriage. This revised version was published online in July 2006 with corrections to the Cover Date.     

Gender Quotas for Corporate Boards: Depoliticizing Gender and the Economy

Gender quotas for corporate boards can be seen as a way of drawing attention to gendered power within the economy as well as a way to democratize the economy, yet the debate about them has focused on the economic and business benefits of gender equality rather than on gender justice or democracy. This article examines how women’s under-representation in economic decision-making was constituted as an economic problem in the European Union’s gender-equality policies and how the economization of the debate on gender quotas for corporate boards affects understandings of gender equality and the economy. The article contributes to research on gender and neoliberalism through developing an approach for analysing the depoliticizing effects of economized gender-equality discourses. It argues that the depoliticized understandings of gender and the economy put forward in the debate water down the politicizing potential of the proposed EU gender-balance directive and that the debate about gender quotas has enhanced the neoliberalization and corporatization of EU gender-equality discourse.     

Sexual Harassment Reconsidered: The Forgotten Grey Zone

The concept of sexual harassment in the Nordic countries and the European Union (EU) is an important tool for creating gender-equitable workplaces. This article contains an analysis of the conceptual ambiguity of sexual harassment with reference to: firstly, the lack of clarity in terms of the relation between the subjective (the perspective of the harassed individual) and the objective (legal assessment) aspects; secondly, the diffuse scope of the objective assessment; thirdly, the attribution of too much importance to the subject’s perception. Even though the concept of sexual harassment classifies behaviours depending on individual interpretations, the legal construction recognizes the individual’s perception in a flexible manner. If the victim does not interpret the abuse as sexual harassment, then it is not. However, if the victim does consider it sexual harassment, it will not necessarily be interpreted as such. The consequence of the three-fold ambiguity of the concept is the creation of a gender-equality grey zone. Problematic behaviours in workplaces may pass as acceptable and “normal”. Subjective perception matters only when it confirms an objective incident. Defining sexual harassment in solely objective terms and determining which gender-related issues prevent equality would result in similar dilemmas, one of which would be the diminishing of those individuals who are subject to harassment. It is imperative to question the dogma that has the victim deciding whether a situation might be considered sexual harassment because: firstly, the subjective perceptions of the victim seem to be of minor importance in changing negative gender structures in workplaces; and, secondly, potential victims of harassment tend to interpret the situation as something else. Furthermore, since the current definition of sexual harassment is characterized by a preoccupation with behaviours and not with structural dimensions, the definition may actually counteract its purpose of increasing gender equality.     

Europeanising Gender Mainstreaming: Constraints and Opportunities in the Multilevel Euro-polity

What are the conditions for empowering `gender mainstreaming' as a new policy frame beyond the supranational level in member states and regions of the European Union? This paper is premised on the following assumptions: that mainstreaming will reduce gender disparities in Europe only if it takes root at all levels of decision-making, but that some national gender regimes can be expected to resist mainstreaming more than others, especially because it does not command `hard' legal tools. The puzzle to be examined is how mainstreaming can become effective across the European multilevel polity. It is argued that vis-à-visthe resistance of domestic gender regimes, the Europeanisation of equal treatment norms in national, regional and local contexts over the past decades has generated a variety of mechanisms for the cross-border diffusion of new policy ideas that can help to promote mainstreaming. Drawing on comparative Europeanisation research, this argument is developed in three steps. First, the past performance of member states in the implementation of E.U. gender directives is explored, to identify patterns and dynamics and classify leaders and laggards. Second, current mainstreaming experiences in one of the most conspicuous laggard states – Germany – are examined closely. Finally, as a means of explaining the rather intense engagement of German federal and regional governments with mainstreaming, two factors are highlighted: elite learning, and new governance instruments developed by the E.U. Notwithstanding the steps taken to promote mainstreaming, the prospects for further institutionalization within the E.U. appear contingent on the outcome of the Convention on the Future of the Union and the Intergovernmental Conference planned for 2004, since the invigorating of the subsidiarity principle and the division of competences across the multilevel polity are key issues of debate. This revised version was published online in July 2006 with corrections to the Cover Date.     

Considering the role of men in gender agenda setting: conceptual and policy issues

The international gender equality agenda evolved into one of mainstreaming a gender perspective into all policies and programmes. Within this process, the role of men gained increasing attention in the debates on gender equality. This resulted in the inclusion of ‘men's role’ as one of the themes of the agenda of the Commission on the Status of Women for the year 2004. While this is another step forward in the global efforts for achieving equality between women and men, its potential risks should not be overlooked. Therefore, it is necessary to revisit the concept of gender and carefully assess and monitor how the role of men is included in the agenda. This article starts with the premise that gender inequalities are the product of historically determined gender order in which the differentially assigned male female attributes are unequally structured in layers of privileged and subordinate positions of masculinities and femininities. The concept of patriarchy is brought back into the analysis to capture the interlinkages between the various status hierarchies that lead to shifts in hegemonic forms of masculinity that reproduces itself under diverse and changing conditions. Thus, while the article attempts to account for the generic and universal characteristics of gender inequality, at the same time, it draws attention to its specific socio-cultural manifestations. Finally, policy guidelines are offered for the consideration of the role of men in gender agenda setting. Accordingly, it is suggested that men's initiatives for alternative masculinities are acknowledged and that the questions regarding which men, in what kinds of alliances and for which end are reflected upon in formulating policies.     

Murder,cruelty and sexual assaults

As more and more political institutions stress the significance of gender equality policies, it becomes important to investigate the different interpretations and meanings attached to the concept of gender equality in diverse policy contexts. In this article we are interested in problematizing visions of gender equality by studying the challenges that the growing amount of paid domestic work performed within European households poses for gender equality policies and practices in two European countries. The aim is to reveal normative assumptions and silences in relation to gender equality by comparing how “paid domestic work” has been framed in policy debates in Sweden and Spain. As welfare states, Sweden and Spain are generally considered to be very different, and in policies on care for children and the elderly the differences are perhaps most apparent. In both countries, however, paid domestic work in the home has become more and more common in the last two decades. The rise of paid domestic services in European households has been interpreted as due to the limitations or decline of welfare states, the ageing populations, and the increasing numbers of dual-earner families. These services are most often provided by women, predominantly of immigrant background, and involve a wide range of tasks, including care work. The phenomenon of an increasing sector of domestic (care) work poses a theoretical and methodological challenge to gender and welfare studies. This article argues that the analysis of debates surrounding domestic service in private households is a useful starting-point for an intersectional analysis by means of revealing the normative assumptions and marginalization embedded in gender equality policies. It uses a comparative frame analysis in combination with intersectional analysis to assess how interactions between gender, class, race, and sexuality have been articulated in the policy debates on domestic services in Spain and Sweden.     

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition. This revised version was published online in July 2006 with corrections to the Cover Date.     

Europeanising Gender Mainstreaming: Constraints and Opportunities in the Multilevel Euro-polity

What are the conditions for empowering `gender mainstreaming' as a new policy frame beyond the supranational level in member states and regions of the European Union? This paper is premised on the following assumptions: that mainstreaming will reduce gender disparities in Europe only if it takes root at all levels of decision-making, but that some national gender regimes can be expected to resist mainstreaming more than others, especially because it does not command `hard' legal tools. The puzzle to be examined is how mainstreaming can become effective across the European multilevel polity. It is argued that vis-à-visthe resistance of domestic gender regimes, the Europeanisation of equal treatment norms in national, regional and local contexts over the past decades has generated a variety of mechanisms for the cross-border diffusion of new policy ideas that can help to promote mainstreaming. Drawing on comparative Europeanisation research, this argument is developed in three steps. First, the past performance of member states in the implementation of E.U. gender directives is explored, to identify patterns and dynamics and classify leaders and laggards. Second, current mainstreaming experiences in one of the most conspicuous laggard states – Germany – are examined closely. Finally, as a means of explaining the rather intense engagement of German federal and regional governments with mainstreaming, two factors are highlighted: elite learning, and new governance instruments developed by the E.U. Notwithstanding the steps taken to promote mainstreaming, the prospects for further institutionalization within the E.U. appear contingent on the outcome of the Convention on the Future of the Union and the Intergovernmental Conference planned for 2004, since the invigorating of the subsidiarity principle and the division of competences across the multilevel polity are key issues of debate.     

Unveiling The Headscarf Debate

In March 2004 the French parliament controversially adopted legislation regulating the wearing of symbols indicating religious affiliation in public educational establishments. This note discusses several features of the new law indicating its origins, its rationale and its position within French constitutional discourse on religious freedom and secularity. It is based on a panel discussion held in April 2004 within the Gender Studies Programme at the Robert Schuman Centre for Advanced Studies, European University Institute, Florence. Placing the French legislative initiative in the context of recent developments in national and European case law (suggesting clear limitations to freedom of religion), the note explores the complexity of issues of gender, identity and difference in the present debate, especially when considered in the light of reactions to the law in Islamic countries.     

Promotion of Gender Equality at the Workplace: Gender Mainstreaming and Collective Bargaining in Italy

The article examines gender equality in collective bargaining and looks at the extent to which gender and equal opportunities issues have been mainstreamed in industrial relations systems in Italy where, despite the existence of old and new legislation on gender equality, there are persistently low levels of female employment and the precarious workforce is made up predominantly of women. The central question addressed in the article is whether the injection of a gender mainstreaming approach in the Italian collective bargaining system, combined with legislative measures, may improve the situation of women in the context of both public and private spheres. In particular, the article looks at whether gender mainstreaming has the potential to pave the way towards an ethos of substantive equality at the workplace, whereby women enter the workforce on equal terms and men are in a position to share the dual responsibilities of paid and unpaid work. The article maintains that gender mainstreaming may fulfil its transformative potential as a catalyst for changing both the conceptual and analytical tools which the law deploys, provided it is envisaged as a three-fold strategy involving simultaneous processes of deconstruction, replacement and inclusive measures, together with deliberative forms of democracy and the imposition of a statutory positive duty on public authorities to mainstream equality.

Creating Perfect Immigrants: Guestworkers of the World in Historical Perspective 1

This article analyses the decision-making process leading to adoption of the Directive on Services in the Internal Market (2006/123/EC), focusing on the role of the European Parliament (EP) and the influence the European Trade Union Confederation (ETUC) obtained on the compromise outcome. It is widely assumed that organized labor is structurally disadvantaged in promoting worker interests in the EU decision-making machinery. The outcome of the Services Directive strife shows, however, that under the co-decision procedure, where Council decisions are reliant on negotiations and agreement with the EP, European trade unions can – under certain conditions – gain substantial political impact if they have a clear, joint strategy and manage to combine effective coalition-building inside the EU institutions and key Member States, with mobilisation of popular and parliamentarian forces at the national level.     

Gendered Division of Labor among Special Settlers in the Soviet Union, 1941–1956

In the early 1940s, the Germans of the Soviet Union were mobilized into the labor armies to work for the Soviet war effort. Despite the nationwide ‘feminization of machinery’ in the Soviet Union during the war years, German women deportees were denied access to skilled employment out of a mixture of gender stereotypes and fear of treason. Labor patterns and access to technology in labor armies thus offer a curious insight into the workings of a large sector of economy of the Soviet Union based on forced labor as well as help expose stereotypes about the gendered division of labor that persisted in the Soviet Union despite its many years of gender equality propaganda.     

Girl culture as a chastity belt

The concept of the women-friendly welfare states, introduced by the Norwegian political scientist Helga Maria Hernes in 1987, has had a considerable influence on welfare theory and research. In this article the normative basis and the analytical potential of the concept are explored. The concept can be criticized for its bias towards social democratic welfare states, which has challenged its analytical potential. Instead of abandoning it altogether, the authors suggest that an alternative could be to reformulate and contextualize the concept with gender equality as the key notion. The reformulation would make it possible to distinguish analytically between women-friendliness and policies that promote gender equality between different dimensions of welfare, and between civil and political from social aspects of citizenship.     

Litigating Discrimination on Grounds of Family Status

Against the background of a deeply uneven package of work–family reconciliation measures and an increasing focus on engaging men in unpaid care work, in this article I discuss the extension of the Irish discrimination law framework to provide protection against family status discrimination to workers who are engaged in certain care relationships. While this development of the law to recognize a relational understanding of inequality is welcome, its confined definition of family status fails to capture the range of workers’ caring relationships and networks. Adopting a contextualized assessment of 12 years of litigation generated under the ‘family status’ ground, with reference to complainants’ gender and work status, the study considers the types of experiences being litigated as ‘family status’ discrimination. The study show how much of the nature and forms of inequality presented before the tribunals are beyond the conceptual boundaries of the principle of equal treatment that depends upon a sameness of treatment model with the (gendered) ‘care-less’ comparator. Despite its potential to question the neutrality of workplace structures predicated upon the division between paid work and unpaid care, the principle of indirect family status discrimination has been under utilised as a litigation strategy. The most successful dimension of family status discrimination protection has been in respect of its ability to capture the negative stereotyping of worker–carers who continue to perform as ideal workers. I suggest that this extension of a limited negative rights framework, when considered alongside the state’s extremely poor support for workcare reconciliation more broadly, places negligible obligations on employers, and that the gender neutrality implicit in its provisions have yet to impact on gender equality as regards work–care reconciliation.     

The European Union and gender mainstreaming: Constitutionally embedded or comprehensively marginalised?

This paper examines the extent to which gender mainstreaming is constitutionally embedded in the legal framework of the European Union. Within the framework of that broad question it examines three sub-questions concerning the robustness and constitutionalised nature of the E.U.'s `equality regime', the extent of adaptation to mainstreaming methodologies by supranational institutions such as the Court of Justice, and the extent of the gender dimension in the debates which are shaping the future of the European Union, especially the 2002–3Convention on the Future of the Union and the Commission's Governance White Paper of 2001.The E.U. is analysed in this article as an emergent, non-state, postnational constitutionalised polity. The first section presents this perspective, and the succeeding three sections engage with the three` sub-questions' outlined above. The conclusion suggests that as yet, while gender concerns maybe constitutionally embedded in the Treatyframe work, they are less prominent in the constitutional politics of the Convention and the Governance White Paper.     

DON'T SHUT UP: AUSTRALIA'S FIRST PAID PARENTAL LEAVE SCHEME AND BEYOND

Through the perspective of women's conflicting roles, this paper examines the capacity of the Australian Paid Parental Leave scheme to assist Australian families negotiate paid work and parenthood. Drawing on comparisons with other nation-state policies and interview data with Western Australian women, this paper argues that women's choices remain limited despite the introduction of the Paid Parental Leave scheme. I suggest that while Paid Parental Leave is an important reform for gender equality and improving work/life balance for many Australian families, it is not sufficient. The policy and culture of Australian workplaces need improvement.     

Breaking the Silence: Gender Mainstreaming and the Composition of the European Court of Justice

Why has it taken so long for member states to appoint women to the Court of Justice? Despite having won relatively significant policy instruments for equal treatment at work and high levels of legislative representation, women in the European Union have been slow to extend the demand for gender mainstreaming to courts. Prior to 1999, the Court of Justice had had one woman member until Ireland appointed Fidelma Macken in late 1999, and Germany appointed Ninon Colneric and Austria appointed Christine Stix-Hackl Advocate General in 2000.The 1995 U.N. meeting in Beijing was a catalyst for the demand for balanced participation of women and men in decision-making processes within the E.U., and it coincided with Sweden, Finland and Austria joining and championing the cause of gender equality. In 1999, the Commission published a report on women in the judiciary and women lawyers began to organize across Europe. After tracing the appointment process, I review the European Parliament's role in championing women on the Court and consider recent developments. Courts, particularly supranational and federal courts, are representative institutions even if their representative function differs from legislatures. Non-merit factors have always been a factor in judicial appointments and thus the demand for women on the bench is not a terrible deviation from merit. An all male bench is no longer legitimate.