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  • 13.11.2013

    1

    DR ANNA LEDZISKA-SIMONUNIVERSITY OF WROCA W

    ERA , KRA KW, 2 8-2 9/ 11/2013

    Positive actionand gender parity

    Gender equality concepts

    Formal v. substantive (de facto) equality

    Equality of opportunities

    Equality of results

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    Three-dimensional approachto gender equality

    1) obligation to ensure that there is no direct or indirectdiscrimination against women in their laws and that womenare protected against discrimination committed by publicauthorities, the judiciary, organizations, enterprises or privateindividuals in the public as well as the private spheres bycompetent tribunals as well as sanctions and other remedies

    2) obligation to improve the de facto position of womenthrough concrete and effective policies and programs

    3) obligation to address prevailing gender relations and thepersistence of gender-based stereotypes that affect women notonly through individual acts by individuals but also in law,and legal and societal structures and institutions.

    Towards de facto gender equality

    Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979

    Art. 4 (1) Adoption by States Parties of temporaryspecial measures aimed at accelerating de factoequality between men and women shall not beconsidered discrimination as defined in the presentConvention, but shall in no way entail as a consequencethe maintenance of unequal or separate standards; thesemeasures shall be discontinued when the objectives ofequality of opportunity and treatment have beenachieved.

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    Taking gender differences into account

    In the view of the CEDAW Committee :

    a purely formal legal or programmatic approach is not sufficient to achieve womens de factoequality with men

    women shall be given an equal start and be empowered by an enabling environment to achieveequality of results

    it is not enough to guarantee women treatment that is identical to that of men

    biological as well as socially and culturally constructed differences betweenwomen and men must be taken into account

    under certain circumstances, non-identical treatment of women and men will be required inorder to address such differences

    pursuit of the goal of substantive equality also calls for an effective strategy aimed atovercoming underrepresentation of women and a redistribution of resources and powerbetween men and women.

    Temporary special measures

    General Recommendation (CEDAW) No. 25 on temporary special measures

    special linked to the special goal of the measures: to achieve de facto equality(equal participation of men and women)

    not an exception to equal treatment, but a part of the 3-dimensional strategy

    temporary (long term, duration in functional relation to a particular problem ofunderrepresentation) in contrast to permanent special measures aimed at protection ofpregnacy or maternity

    compensatory (but no proof of past discrimination required)

    applicable to all areas (education, employment, economic, social, cultural and politicallife)

    mandatory the state parties are obliged to adopt and implement TSM if suchmeasures can be shown to be necessary and appropriate in order toaccelerate the achievement of the overall, or a specific goal of, womens defacto or substantive equality.

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    Terminology

    Temporary special measures Positive actions Positive measures Affirmative actions Reverse discrimination Positive discrimination Measure/action legislative, executive, administrative and

    other regulatory instruments, policies and practices, such as outreach or support programs; allocation and/or re-allocation of resources; preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems.

    Justifications

    Reverse discrimination and compensatory justice

    Non-discrimination and distributory justice

    Preferential treatment and social inclusion

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    Types of positive actions (1)

    (1) purposedly inclusionary policies / equal treatment

    actions favoring the attainment of a certain balance betweenfamily and work responsibilities and a more efficientdistribution of these responsibilities between the two sexes.

    Apparently neutral, but benefit women more than men(targeted at disadvantage, otherwise could be construed asindirect discrimination against men)

    Priority is given to measures concerning theorganization of working time, the development ofchildcare infrastructure, and the reintegration ofworkers in the labor market after a career-break.

    Types of positive action (2)

    (2) outreach measures / equal opportunities

    measures intended to remedy the disadvantageous situations which are characteristic of women's presence in the labor market.

    The objective is to eliminate the causes underlyingthe lesser employment or career opportunities stillaffecting women's work by intervening, in articular,at the level of professional orientation andvocational training.

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    Types of positive actions (3)

    (3) preferential treatment / substantive equality

    Preferential treatment is prescribed in favor of certain categories ofpersons. This may take the form of quota systems or targets.

    Quotas may be more or less rigid.

    Rigid quotas arc deemed to be those determining a certain threshold to be reachedwithout taking into account the qualifications and merits of persons concerned, orthose fixing minimum requirements to be fulfilled without any possibility of havingregard to the particular circumstances of a case.

    Less rigid or flexible quotas are, on the contrary, those establishing preferentialtreatment in favor of a certain category provided that qualifications are of equalvalue in relation to the job to be done and that exceptional circumstances may betaken into account.

    Other types of positive actions

    Eradicating prohibited discrimination (monitoring)

    Re-defining merits

    C. McCrudden, Rethinking Positive Action (1986), 15 Industrial Law Journal 219.

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    Positive action in the EU

    present in the EC/EU from 1970s onwards*

    the concept of positive action embraces all measureswhich aim to counter the effects of part discrimination,to eliminate existing discrimination and to promoteequality of opportunity between women and men, inparticularly in relation to types of levels where membersof one sex are significantly under-represented.**

    * First Program of Action by the Commission of 14/12/1981 for 1982-1985; * Council Recommendation 84/635/EEC of I 3 December 1984 on the promotion of positive action for women

    (OJ No L 331, 19.12.1984). ** Communication from the Commission to the European Parliament and the Council on the interpretation of

    the judgments of the Court of Justice on 17 October 1995 in Case C-450/93, Kalanke v Freie HansestadtBremen. COM (96) 88 final, 27 March 1996

    Equal Treatment Directive

    Council Directive 76/207 /EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC)

    Article 1 The purpose of this Directive is to put into effect in the Member States the principle of equal

    treatment for men and women as regards access to employment, including promotion, and to vocational training and as regards working conditions and, on the conditions referred to in paragraph 2, social security. This principle is herinafter referred to as "the principle of equal treatment."

    Article 2(1) () the principle of equal treatment shall mean that there shall be no discrimination whatsover

    on grounds of sex either directly or indirectly by reference in particular to marital or family status.

    Article 2 (4) This Directive shall be without prejudice to measures to promote equal opportunity for men

    and women, in particular by removing existing inequalities which affect women's opportunities in the areas referred to in Article 1.

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    Positive action in the Treaties

    Treaty of Amsterdam (1997)

    Article 141 (4) of the EC Treaty (equal pay)

    With a view to ensuring full equality in practice between men and women inworking life, the principle of equal treatment shall not prevent any Member Statefrom maintaining or adopting measures providing for specific advantages in orderto make it easier for the underrepresented sex to pursue a vocational activity or toprevent or compensate for disadvantages in professional careers.

    currently Article 157 (4) TFUE

    Article of the Fundamental Rights Charter of the EU

    The principle of equality shall not prevent the maintenance or adoption ofmeasures providing for specific advantages in favor of the under-represented sex.

    Anti-discrimination directives

    Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin

    Article 5 Postive action

    With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent orcompensate for disadvantages linked to racial or ethnic origin.

    Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

    Article 7 Positive action

    1. With a view to ensuring full equality in practice, the principle of equal

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