Equal employment treatment of men and women

8 November 2006:

A new directive on equal opportunities and equal treatment of men and women has been adopted. The new legislation merges the provisions of seven existing directives with the aim of simplifying, clarifying and modernising EU legislation. To that end, the new directive also takes account of relevant case law of the European Court of Justice (ECJ).

In addition to laying down specific rules to combat gender-based discrimination, the directive also seeks to support equal treatment by requiring Member States to introduce measures to promote dialogue between employees’ and employers’ representative bodies (the “social partners”). Article 21 requires Member States to “encourage employers to promote equal treatment for men and women in a planned and systematic way in the workplace, in access to employment, vocational training and promotion.”

The new directive

The directive addresses issues of equal treatment in the context of:
o access to employment (including promotion)
o access to vocational training
o working conditions (including pay)
o occupational social security schemes.

Because problems associated with equal opportunities and equal treatment are often associated with discrimination, the directive provides definitions of a number of relevant terms, including “direct discrimination”, “indirect discrimination”, “harassment”, and “sexual harassment”.

According to the directive, discrimination includes:

o harassment and sexual harassment, as well as any less favourable treatment based on a person’s rejection of or submission to such conduct
o instruction to discriminate against persons on grounds of sex
o any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC.

Parental leave

The ECJ has established that women who are treated unfavourably because of pregnancy or maternity are victims of direct discrimination on grounds of sex. The court has also recognised the role of maternity protection measures for protecting women from discrimination and helping them achieve equality.

Under Article 15, any woman returning to work after maternity leave has the right to return to her original job or an equivalent one “on terms and conditions which are no less favourable to her”. She also has the right to benefit “from any improvement in working conditions to which she would have been entitled during her absence”.

Paternity and adoption leave are dealt with by Article 16. Not all Member States recognise rights in these areas, but the directive requires those that do to ensure both that workers are protected against dismissal for exercising their rights, and that they are able to return at the end of such leave on the same basis as women returning from maternity leave (i.e. to their own job or to an equivalent, and with the benefit of any associated improvement in working conditions).

Pay

The directive’s introduction reaffirms the principle of equal pay for equal work or work of equal value as being “an important aspect of the principle of equal treatment between men and women”. In accordance with this principle, discrimination in “all aspects and conditions of remuneration” on grounds of gender, for “the same work, or for work to which equal value is attributed”, is prohibited by Article 4.

The directive specifically mentions situations where pay rates are determined using a job classification system, and requires that such a system “shall be based on the same criteria for both men and women and so drawn up as to exclude any discrimination on grounds of sex”.

Pensions are one of a number of occupational social security schemes covered by the new directive. While it primarily covers schemes that provide protection against sickness, invalidity, old age (including early retirement), industrial accidents, occupational diseases and unemployment, it also extends to schemes that provide for other social benefits.

The directive prohibits discrimination on the grounds of sex in occupational social security schemes. Examples of direct or indirect discrimination based on sex in occupational social security schemes include the following.

o Determining who can participate in a scheme.
o Fixing the compulsory or optional nature of participation.
o Laying down different rules for age of entry into the scheme.
o Setting different conditions for the granting of benefits or restricting such benefits to workers of a specific gender.
o Fixing different retirement ages.
o Setting different levels for workers’ contributions and — with some exceptions — for employers’ contributions.

Burden of proof

Following a decision by the ECJ, Article 19 places the burden of proof on the respondent. Where an employee presents prima facie evidence (evidence that is sufficient to establish a fact or to raise a presumption of the truth unless controverted) that he or she has been discriminated against — either directly or indirectly — the employer must show that the principle of equal treatment has not been breached.

The legislation also requires the protection of employees and their representatives against victimisation, which is defined as “dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

National implementation

The deadline set for Member States to transpose the directive into national law is 15 August 2008. Member States will only be required to address those elements of the directive which substantially change previous legislation and they will also have the right to apply new or existing rules which offer greater protection than that provided by the new directive.

Penalties must be introduced for breaches of the legislation, which are “effective, proportionate and dissuasive”. Penalties may include compensation payments to victims of discrimination.

The directive is to be formally reviewed by the European Commission, which is charged with reporting to the European Parliament and the Council no later than 15 February 2011.

Further information

The text of the directive was published in the Official Journal of the European Union (OJ) L204, 26 July 2006. The OJ can be accessed online via the EUR-Lex database at: http://eur-lex.europa.eu/JOIndex.do?ihmlang=en.

Background material on the union’s equal opportunities policy can be found on the website of the Commission’s Directorate-General for Employment, Social Affairs and Equal Opportunities at: http://ec.europa.eu/employment_social/index_en.html.

Commenting on the recent decision to designate 2007 as the “European Year of Equal Opportunities for All”, the Commissioner for Employment, Social Affairs and Equal Opportunities, Vladimír Spidla, said: “For a whole year, we will be putting the spotlight on equal opportunities and the benefits for Europe of a diverse society. Too many talents in Europe are poorly utilised”.

For more information go to:
http://ec.europa.eu/employment_social/equality2007.