Positive discrimination to give women public service jobs ahead of equally qualified men has been copper-fastened by a ruling of the European Court of Justice.
Yesterday's decision by the EU's court in Luxembourg makes it clear that national or local regulations allowing the favouring of equally qualified women are legal as long as they meet three conditions: the discrimination is for the purpose of redressing an imbalance, the regulations do not provide automatic preference or quotas, and the assessment of candidates is based on objective and fair criteria.
The ruling means that governments can enact positive discrimination regulations to reverse the imbalance in recruitment to the public service as they have done, most notably in the Nordic countries and in several German Lander.
The Commissioner for Social Affairs, Mr Padraig Flynn, said that he was "delighted" with the decision. "The court has recognised that certain deep-rooted prejudices and stereotypes as to the role and capacities of women in working life still persist."
Yesterday's decision vindicates the position taken by the Commission after the European Court of Justice ruling in the Kalanke case in 1995, which had given rise to fears that some equal opportunities legislation in member-states might be called into question. The Commission held then that the Kalanke ruling meant that positive action which stopped short of automatic quotas was permissible and proposed a directive seeking to clarify the position. That directive may no longer now be necessary.
Mr Flynn said yesterday that this view of the law would also be copper-fastened by a clause in the Amsterdam Treaty. Article 119 (4) will allow member-states to maintain or adopt "measures providing for special advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers". The formulation applies to redressing imbalances of either sex.
Yesterday's ruling arose from a case in a German Lander (Hellmut Marschall vs Land Northrhine-Westphalia) in which a tenured teacher sought promotion in a comprehensive school. The local authority informed him that it intended to avail of a regulation allowing it to appoint a woman to the post when there was a clear imbalance in representation and where there were two candidates of equal merit. Mr Marschall challenged the decision in the Administrative Court. That court observed that the regulation seemed to discriminate in favour of women and stayed the proceedings while it sought an opinion of the European Court of Justice.
The court found that because of deep-seated prejudice, men tend to be chosen for jobs ahead of women when they have equal qualifications. This arises from fears that women will interrupt their careers more often and that, owing to household and family duties, they will be less flexible in their working hours, or that they will be absent more from work because of childbirth, pregnancy or breast-feeding, the court said.
For these reasons, the court argued, the mere fact that a male and female candidate are equally qualified does not mean that they have the same chances. Accordingly, such a regulation may help to reduce actual instances of inequality as long as automatic priority over men is precluded.
The German court must now decide how the ruling applies in the Marschall case.
