5.1. Sex – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Sex discrimination is relatively self-explanatory, in that it refers to discrimination that is based on the fact that an individual is either a woman or a man. Under EU law, this is the most highly developed aspect of the EU social policy and has long been considered a core right. The development of the protection on this ground served a dual purpose: first, it served an economic purpose in that it helped to eliminate competitive distortions in a market that had grown evermore integrated; and second, on a political level, it provided the Community with a facet aimed at social progress and the improvement of living and working conditions. Consequently, the protection against discrimination on the ground of sex has been, and has remained, a fundamental function of the EU: gender equality is a ‘fundamental value’ (Article 2 of the TEU) and an ‘objective’ (Article 3 of the TEU) of the Union. The acceptance of the social and economic importance of ensuring equality of treatment was further crystallised by the central position it was given in the EU Charter of Fundamental Rights.

Cases of sex discrimination may involve either men or women receiving less favourable treatment than persons of the opposite sex.

Example: In Konstantinos Maïstrellis v. Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton,[435] the complainant worked as a civil servant. He requested parental leave while his wife did not have any employment. The CJEU found that, in accordance with the principle of equal opportunities and treatment of men and women in employment and occupation, a male civil servant has a right to take parental leave even if his wife is unemployed.

Example: In Defrenne v. Sabena, [436] the applicant complained that she was paid less than her male counterparts, despite undertaking identical employment duties. The CJEU held that this was clearly a case of sex discrimination. In reaching this decision, the CJEU highlighted both the economic and social dimension of the Union, and that non-discrimination assists in progressing the EU towards these objectives.

Example: In Margaret Kenny and Others v. Minister for Justice, Equality and Law Reform, Minister for Finance and Commissioner of An Garda Síochána,[437] the claimants were female civil servants assigned to clerical duties employed by the Minister. They complained that their salaries were lower than those of their male colleagues who were also performing administrative work in specific posts reserved for members of the police. The national authorities justified the difference in pay by the fact that members of the police must always comply with the needs of the operational forces. The CJEU explained that, to determine whether two different groups perform the same work, it is not sufficient to establish that the tasks performed by those groups are similar. The nature of work, the training requirements and the working conditions have to be taken into account. Professional training is consequently one of the criteria for determining whether or not the work performed is comparable.

Example: The case of Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministres[438] concerns the principle of equal treatment between men and women in the access to and supply of goods and services. In particular, it relates to the Gender Goods and Services Directive which permitted EU Member States to apply sex-specific risk factors in the calculation of premiums and benefits in insurance contracts. As a result, women and men paid different amounts of contributions under private insurance schemes. Relying on the EU Charter of Fundamental Rights, the CJEU ruled that taking into account the gender of the insured individual as a risk factor in insurance contracts constitutes discrimination and declared Article 5 (2) of the Gender Goods and Services Directive invalid. Thus, as of 21 December 2012 it is no longer possible to permit proportionate differences in individuals’ premiums and benefits where the ground of sex is a determining factor.

The CJEU emphasised that, to justify any differential treatment between men and women, it must be shown that such treatment is based on objective factors unrelated to any discrimination on grounds of sex. This will be the case where the measures reflect a legitimate social-policy objective, are appropriate to achieve that aim and are necessary to do so. [439] Therefore, justifications for a measure that is realised solely to the detriment of women or one that is based only on the financial or management considerations of employers cannot be accepted.

Pregnancy and maternity related discrimination is a particular form of sex discrimination. To protect pregnancy, maternity and parenthood, the EU has gradually developed a complex array of primary and secondary legislation.[440] Article 157 of the TFEU establishes the obligation of equal pay between men and women and provides a general legal basis for the adoption of measures in the field of gender equality, which includes equality and antidiscrimination on the ground of pregnancy or maternity within the workplace. Article 33 (2) of the EU Charter states that “to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity, and the right to paid maternity leave and to parental leave following the birth or adoption of a child.” Besides the recast Gender Equality Directive, among others, the Pregnant Workers Directive[441] is primarily aimed at improving health and safety at work for pregnant workers, workers who have recently given birth and workers who are breastfeeding. It is supplemented by the Parental Leave Directive,[442] which sets minimum standards designed to facilitate the reconciliation of work with family life.

The CJEU has also greatly contributed to the development of this field of law, by further clarifying and applying the principles expressed in legislation and providing broad interpretations of relevant rights. According to the CJEU, protection of pregnancy and maternity rights not only translates into promoting substantive gender equality, but it also promotes the health of the mother following the birth and the bond between the mother and her new-born child.

In the early cases of Dekker[443] and Hertz,[444] the CJEU established that as only women can become pregnant, a refusal to employ or the dismissal of a pregnant woman based on her pregnancy or her maternity amounts to direct discrimination on the grounds of sex, which cannot be justified by any other interest, including the employer’s economic interest. In Melgar,[445] for example, it clearly stated that “where non renewal of a fixed term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex” contrary to EU law. Moreover, a women is not obliged to disclose her pregnancy to the employer during recruitment process, or at any other stage of employment.[446] The CJEU further held that any unfavourable treatment directly or indirectly connected to pregnancy or maternity constitutes direct sex discrimination.[447]

However, the existing legal framework fails to regulate non-traditional ways of becoming a mother/parent. In particular, the practice of surrogacy is increasing across Europe and this creates a gap between social reality and legislation. Such an issue was highlighted by two cases decided by the CJEU in 2014.

Example: In cases C. D. v. S. T.[448] and Z. v. A Government Department and the Board of Management of a Community School,[449] the CJEU held that EU law does not require that a mother who has had a baby through a surrogacy agreement should be entitled to paid leave equivalent to maternity or adoption leave. Ms D., who was employed in a hospital in the United Kingdom, and Ms Z., a teacher working in Ireland, both used surrogate mothers to have a child. Both women applied for paid leave equivalent to maternity leave or adoption leave. The applications were refused on the ground that Ms D. and Ms Z. had never been pregnant and the children had not been adopted by

the parents. In both cases, the CJEU found that the intended mother could not rely on the provisions of either the Gender Equality Directive (recast) or the Pregnant Workers Directives, nor the provisions of the Employment Equality Directive, which prohibit discrimination on grounds of disability.

For the Pregnant Workers Directive, the CJEU found that granting maternity leave presupposes that the worker concerned has been pregnant and has given birth to a child. Therefore, a commissioning mother[450] does not fall within the scope of the directive, even in circumstances where she may breastfeed the baby following the birth or where she does breastfeed the baby.

Regarding the Gender Equality Directive, the CJEU found that a refusal to grant maternity leave to a commissioning mother does not constitute discrimination on grounds of sex, given that a commissioning father is not entitled to such leave either and that the refusal does not put female workers at a particular disadvantage compared with male workers. Furthermore, a refusal to grant paid leave equivalent to adoption leave to a commissioning mother is outside the scope of that directive.

Lastly, the CJEU considered that the inability to have a child does not constitute a ‘disability’ within the meaning of the Employment Equality Directive.[451]

Example: The De Weerd[452] case concerns national legislation relating to incapacity benefit. In 1975, national legislation had introduced incapacity benefit for men and unmarried women, irrespective of their income before becoming incapacitated. In 1979, this was amended and the benefit also made available to married women. However, a requirement that the recipient must have received a particular level of income during the preceding year was also introduced. The legislation was challenged on the ground (among others) that the income requirement discriminated indirectly against women (who were less likely to earn the required income than men). The state argued that the differential enjoyment was justified out of budgetary considerations to contain national expenditure. The CJEU found that while EU law does not prevent the state from regulating which categories of person benefit from social security benefits, it could not do so on a discriminatory manner.

Example: In Hill and Stapleton v. The Revenue Commissioners and Department of Finance,[453] the CJEU made it clear that the principle of reconciliation between work and family life follows from the principle of equality. The government introduced a job-sharing scheme in the civil service, whereby a post could be shared by two individuals on a temporary basis, working 50 % of the hours of the full-time post and receiving 50 % of the regular salary. Workers were entitled to then return to their post full time where these posts were available. The rules allowed individuals in full-time employment to advance one increment on the pay scale per year. However, for individuals who were job sharing the increment was halved, with two years of job sharing equivalent to one increment. The two complainants in the present case returned to their posts as full-time workers and complained about the means by which the increment was applied to them. The CJEU found this to constitute indirect discrimination on the grounds of sex since it was predominantly women who took part in job-sharing. The government argued that the differential treatment was justified since it was based on the principle of applying the increment in relation to the actual length of service. The CJEU found that this merely amounted to an assertion that was not supported by objective criteria (in that there was no evidence that other individuals’ length of service was calculated in terms of actual hours worked). The CJEU then stated “an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs.”

Similarly, under the ECHR, protection against discrimination on the ground of sex is well developed. The ECtHR has stated that gender equality is a major goal in the member states of the Council of Europe.[454] The case law relating to gender equality encompasses a variety of legal issues.

A very important area of gender equality in the ECtHR jurisprudence concerns cases where women are victims of violence (discussed in Section 2.6). The ECHR held that gender-based violence was a form of discrimination against women in violation of Articles 2 and 3 in conjunction with Article 14 of the ECHR.[455]

The principle of equality between men and women has also led the ECtHR to find a violation in context of employment and parental leave.

Example: In Emel Boyraz v. Turkey,[456] the applicant was dismissed from her post as a security officer on the grounds that the tasks of security officers involved risks and responsibilities that women were unable to assume, such as working at night in rural areas and using firearms and physical force. The ECtHR found that the authorities had not given sufficient justification to explain this purported inability of women to work as security officers in contrast to men. The ECtHR also pointed to the fact that the applicant had been working as a security officer for four years, and there were no indications that she had failed to fulfil her duties because of her sex. Consequently, there had been a violation of Article 14.

In Konstantin Markin v. Russia,[457] the applicant, a divorced radio intelligence operator in the armed forces, applied for three years’ parental leave to bring up his three children. This was refused on the grounds that there was no basis for his claim in domestic law. However, he was subsequently granted two years’ parental leave and financial aid by his superiors in view of his difficult personal circumstances. The applicant complained that male military personnel, contrary to female, were not entitled to three years’ parental leave to take care of minor children. He considered that this difference in treatment was discriminatory on the grounds of sex. The ECtHR found that men were in an analogous situation to women regarding parental leave. The ECtHR did not accept that the difference in treatment was reasonably and objectively justified by either the traditional distribution of gender roles in society or the argument that parental leave for servicemen would have a negative effect on the fighting power and operational effectiveness of the armed forces. Therefore, the automatic restriction applied to a group of people on the basis of their sex fell outside any acceptable margin of appreciation and the ECtHR concluded that there had been a violation of Article 14 in conjunction with Article 8 of the ECHR.

Another category of cases on gender equality concerns challenges to different age requirements in respect of the enjoyment of social benefits. In the field of social security and fiscal matters, the ECtHR allows a wide margin of appreciation to national authorities. In the Andrle case, the ECtHR reaffirmed that gender equality allows for taking special measures that compensate for factual inequalities between men and women.

Example: In Andrle v. the Czech Republic,[458] the applicant complained that, unlike the position with women, there was no lowering of the pensionable age for men who had raised children. The Czech government argued that this difference in treatment was due to the position under the old communist system where women with children were required to work full time, as well as care for children and take care of the household. The measure aims to compensate for this double burden on women. The authorities had already started a gradual reform of its pension scheme towards equalising the retirement age. However, the old system still applied to people of the applicant’s age. The ECtHR accepted that the measure was rooted in these specific historical circumstances and in the need for special treatment for women. The Court found that this was still reasonably and objectively justified. The ECtHR also held that the timing and the extent of the measures taken to rectify the inequality in question were not manifestly unreasonable and did not exceed the wide margin of appreciation afforded to the states in this area. Therefore, the state did not violate the non-discrimination principle.

In the Andrle case, the ECtHR clearly distinguished different treatment of men and women in the field of parental leave from that of pensions. According to that, gender could not provide sufficient justification for the exclusion of fathers from the entitlement to take parental leave, which is a short-term measure, and its reform would not entail serious financial repercussions as could be in the case in the pension scheme reform. Therefore, regarding pension schemes, states enjoy a wide margin of appreciation. However, for example in Di Trizio v. Switzerland,[459] (discussed in detail in Section 6.3), the ECtHR found that the method of calculating disability benefits which disadvantaged women who reduced their working hours after childbirth amounted to discrimination.

In Khamtokhu and Aksenchik v. Russia,[460] (discussed in detail in Section 1.3.2), the ECtHR examined the difference in treatment in life sentencing between men and women who were exempt from life imprisonment. It concluded on the basis of statistics, the needs of women for protection against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood, that there existed a public interest in the exemption of female offenders from life imprisonment by way of a general rule.

In the context of gender equality, the ECtHR also examined national provisions concerning the choice of name and transmission of parents’ surnames to their children. For instance, in Cusan and Fazzo v. Italy,[461] (discussed in detail in Section 4.6), it found a rule not allowing a married couple to give their child the mother’s surname discriminatory towards women.

Example: In Ünal Tekeli v. Turkey,[462] the applicant complained that national law obliged a woman to bear her husband’s name upon marriage. Although the law permitted a woman to retain her maiden name in addition to her husband’s name, the ECtHR found that this constituted discrimination on the basis of sex, because national law did not oblige a husband to alter his surname.

Under international law, gender equality is also recognised as central to human rights. Various United Nations bodies have addressed gender based discrimination in particular faced by women. They also stressed that women are often victims of multiple discrimination (when they experience discrimination on two or several grounds) and intersectional discrimination (where several grounds operate and interact with each other at the same time in such a way that they are inseparable).[463] A number of UN human bodies has also emphasised the harms of gender stereotypes[464] and the need to address harmful gender stereotypes

in order to promote gender equality.[465] Differences in treatment that are based on gender stereotypes may constitute discrimination against women. The Committee on Economic, Social and Cultural Rights stated that “Gender-based assumptions and expectations, generally place women at a disadvantage with respect to substantive enjoyment of rights […]. Gender-based assumptions about economic, social and cultural roles preclude the sharing of responsibility between men and women in all spheres that is necessary to equality.”[466] Similarly, the Committee on the Elimination of Discrimination against Women stressed that gender stereotypes are a root cause and consequence of gender- based discrimination.[467] For instance, in a case concerning discrimination in employment, the Committee found the violation of the Convention in the fact that the national courts were influenced by the stereotypical prejudices that extramarital relationships were acceptable for men and not for women.

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435. CJEU, C-222/14, Konstantinos Maïstrellis v. Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton, 16 July 2015.

436. CJEU, C-43/75, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 8 April 1976.

437. CJEU, C-427/11, Margaret Kenny and Others v. Minister for Justice, Equality and Law Reform, Minister for Finance and Commissioner of An Garda Síochána, 28 February 2013.

438. CJEU, C-236/09, Association Belge des Consommateurs Test-Achats ASBL and Others v. Conseil des ministres [GC], 1 March 2011.

439. CJEU, C-173/13, Maurice Leone and Blandine Leone v. Garde des Sceaux, ministre de la Justice and Caisse nationale de retraite des agents des collectivités locales, 17 July 2014, para. 79.

440. For more details, see for example, European Commission, European Network of Legal Experts in the Field of Gender Equality (2012), ‘Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood – The application of EU and national law in practice in 33 European countries’.

441. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding, OJ L 348, 28.11.1992.

442. Council Directive 2010/18/EU of 8 March 2010 implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC, OJ L 68, 18 March 2010.

443. CJEU, C-177/88, Elisabeth Johanna Pacifica Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, 8 November 1990.

444. CJEU, C-179/88, Handels- og Kontorfunktionærernes Forbund I Danmark v. Dansk Arbejdsgiverforening, 8 November 1990. Note that the Handels- og Kontorfunktionaerernes Forbund i Danmark was acting on behalf of Birthe Vibeke Hertz.

445. CJEU, C-438/99, Maria Luisa Jiménez Melgar v. Ayuntamiento de Los Barrios, 4 October 2001.

446. CJEU, C-32/93, Carole Louise Webb v. EMO Air Cargo (UK) Ltd., 14 July 1994; CJEU, C-320/01, Wiebke Busch v. Klinikum Neustadt GmbH & Co. Betriebs-KG, 27 February 2003.

447. CJEU, C-32/93, Carole Louise Webb v. EMO Air Cargo (UK) Ltd., 14 July 1994; CJEU, C-421/92, Gabriele Habermann-Beltermann v. Arbeiterwohlfahrt, Bezirksverband Ndb./Opf. e.V., 5 May 1994.

448. CJEU, C-167/12, C. D. v. S. T. [GC], 18 March 2014.

449. CJEU, C-363/12, Z. v. A Government department and The Board of Management of a Community School [GC], 18 March 2014.

453. CJEU, C-243/95, Kathleen Hill and Ann Stapleton v. The Revenue Commissioners and Department of Finance, 17 June 1998.

454. ECtHR, Konstantin Markin v. Russia [GC], No. 30078/06, 22 March 2012, para. 127.

455. For example, see ECtHR, Opuz v. Turkey, No. 33401/02, 9 June 2009, ECtHR, Halime Kılıç v. Turkey, No. 63034/11, 28 June 2016 and ECtHR, M.G. v. Turkey, No. 646/10, 22 March 2016, discussed in Section 2.6.

456. ECtHR, Emel Boyraz v. Turkey, No. 61960/08, 2 December 2014.

457. ECtHR, Konstantin Markin v. Russia [GC], No. 30078/06, 22 March 2012.

458. ECtHR, Andrle v. the Czech Republic, No. 6268/08, 17 February 2011.

459. ECtHR, Di Trizio v. Switzerland, No. 7186/09, 2 February 2016.

460. ECtHR, Khamtokhu and Aksenchik v. Russia [GC], Nos. 60367/08 and 961/11, 24 January 2017.

461. ECHR, Cusan and Fazzo v. Italy, No. 77/07, 7 January 2014.

462. ECtHR, Ünal Tekeli v. Turkey, No. 29865/96, 16 November 2004.

463. See for example, UN, Committee on the Rights of Persons with Disabilities (2016), General comment No. 3 (2016) on women and girls with disabilities, CRPD/C/GC/3, 2 September 2016; UN, CEDAW (2010), General Recommendation No. 28 on the Core Obligations of States Parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/2010/47/GC.2, 19 October 2010, para. 18.

464. For an overview on how the UN human treaty bodies have applied those treaties in relation to gender stereotypes/stereotyping with a view to advancing women’s human rights, see OHCHR Commissioned Report (2013), Gender Stereotyping as a Human Rights Violation, pp. 20–43.

465. UN, Committee on the Rights of Persons with Disabilities (2016), General comment No. 3 (2016) on women and girls with disabilities, CRPD/C/GC/3, 2 September 2016.

466. UN, CESCR (2005), General Comment No. 16: The Equal Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Art. 3 of the Covenant), E/C.12/2005/4, 11 August 2005, para. 11.

467. UN, CEDAW (2010), Communication No. 28/2010, CEDAW/C/51/D/28/2010, 24 February 2012, para. 8.8.

Contents

5. Protected grounds

5.1. Sex

5.2. Gender identity

5.3. Sexual orientation

5.4. Disability

5.5. Age

5.6. Race, ethnicity, colour and membership of a national minority

5.7. Nationality or national origin

5.8. Religion or belief

5.9. Social origin, birth and property

5.10. Language

5.11. Political or other opinion

5.12. ‘Other status’

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