Positive action on equal opportunities. 24.—(1) The provisions of this Act are 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 of access to employment, vocational training and promotion, and working conditions.
Positive action permitted. 33.—(1) Nothing in this Part or Part II shall prevent the taking of such measures as are specified in subsection (2) in order to facilitate the integration into employment, either generally or in particular areas or a particular workplace, of— (a) persons who have attained the age of 50 years, (b) persons with a disability or any class or description of such persons, or (c) members of the traveller community. (2) The measures mentioned in subsection (1) are those intended to reduce or eliminate the effects of discrimination against any of the persons referred to in paragraphs (a) to (c) of that subsection. (3) Nothing in this Part or Part II shall render unlawful the provision, by or on behalf of the State, of training or work experience for a disadvantaged group of persons if the Minister certifies that, in the absence of the provision in question, it is unlikely that that disadvantaged group would receive similar training or work experience.
Victor wrote: » http://www.irishstatutebook.ie/eli/1998/act/21/section/24/enacted/en/html#sec24http://www.irishstatutebook.ie/eli/1998/act/21/section/33/enacted/en/html#sec33
bfa1509 wrote: » I'm no legal expert
bfa1509 wrote: » I'm pretty sure that statutes are laws in their weakest form.
Victor wrote: » I'm happy with the first quote, not the second.
The Acts passed by the Oireachtas are the primary legislation of Ireland. There is another category of laws known as secondary legislation or statutory instruments. The Oireachtas does not enact statutory instruments. Instead, the power to enact them is delegated to certain people or bodies including Government Ministers, local authorities and regulatory bodies. Secondary legislation must be consistent with, and based on, the legislation adopted by the Oireachtas. If it is not, it can be overturned by the courts.
bfa1509 wrote: » That is very much like the response that I got. I'm no legal expert but I'm pretty sure that statutes are laws in their weakest form. They get passed easily by the government but have never been exercised or challenged in a court. I can picture a few landmark cases coming down the line. I hope sense will prevail.
33. Nothing in this Part or Part II shall render unlawful measures maintained or adopted with a view to ensuring full equality in practice between employees, being measures — ( a ) to prevent or compensate for disadvantages linked to any of the discriminatory grounds (other than the gender ground), ( b ) to protect the health or safety at work of persons with a disability, or ( c ) to create or maintain facilities for safeguarding or promoting the integration of such persons into the working environment.
tylercheribini wrote: » I wonder are the job descriptions worded so they could only possibly be filled by females which I know is a nonsense, just speculating.
sexmag wrote: » In what way though? "Applicant must fit skirt and have no obvious bulge"
GM228 wrote: » I noticed a discussion earlier on TV (Virgin ONE I think) where it was stated that advice (and approval) on the issue came from the Attorney General (not sure where their source for this is though as they did not quote anyone). If true I really can't see where the AG has found a legal basis for this especially in light of the amended S33 I quoted earlier which excludes gender issues from positive action.
Peregrinus wrote: » - "Softer" measures had not been effective to solve it.
The Caveman wrote: » Can only imagine, if I were to post a job advert, for let's say an accountant and only males are allowed to apply. how long till it blows up...
sexmag wrote: » This is an interesting bit. I wonder what softer measures have been tried previously that also didn't fall under discrimination based on gender.
The Caveman wrote: » Can only imagine, if I were to post a job advert, for let's say an accountant and only males are allowed to apply.
Peregrinus wrote: » It doesn't appear that the case was taken further, to the ECJ, but from the account given the Netherlands Tribunal said that it was considering and applying ECJ law, in particular Kalanke, Marschall, Badeck and Abrahamsson. I haven't looked at theses cases. But it does at least seem that there is relevant case-law on this from the ECJ.
Directive 76/207/EEC wrote: 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
Abrahamsson wrote: 55 ...even though Article 141(4) EC allows the Member States to maintain or adopt measures providing for special advantages intended to prevent or compensate for disadvantages in professional careers in order to ensure full equality between men and women in professional life, it cannot be inferred from this that it allows a selection method of the kind at issue in the main proceedings which appears, on any view, to be disproportionate to the aim pursued. 56. The answer to the first question must therefore be that Article 2(1) and (4) of the Directive and Article 141(4) EC preclude national legislation under which a candidate for a public post who belongs to the under-represented sex and possesses sufficient qualifications for that post must be chosen in preference to a candidate of the opposite sex who would otherwise have been appointed, where this is necessary to secure the appointment of a candidate of the under-represented sex and the difference between the respective merits of the candidates is not so great as to give rise to a breach of the requirement of objectivity in making appointments.
C-476/99 wrote: 36 The Court has already made clear its views on positive measures in the judgments in Kalanke (18) and Marschall. (19) It based its judgment on Recommendation 84/635, and maintained that, owing to certain prejudices and stereotyped views as to the role and abilities of women, male candidates tend to be promoted in priority to women. (20) The positive measure must, as the Court held, counteract the adverse effects stemming from these attitudes and this behaviour and reduce actual inequalities in social life. (21) However, in the Commission's view, the contested rule singularly fails to counterbalance these stereotyped perceptions of women, and is far more likely to reinforce traditional attitudes to mothers. It is thus in contradiction with the justification of positive actions in favour of women enshrined in Community law. 37 This approach is confirmed by the case-law. Following the judgment in the case of Kalanke, positive measures may not give women absolute and unconditional priority. There should rather be a guarantee that in each individual case all criteria relating to a male applicant will be considered. This is the `saving clause' within the meaning of the judgment in Marschall. In the opinion of the Commission, the rule fails the proportionality test.
Kalanke wrote: 16. A national rule where women and men who are candidates for the same promotion are equally qualified, women are automatically to be given priority in sectors where they are under-represented, involves discrimination on grounds of sex
Kalanke wrote: 22. National rules which guarantee women absolute and unconditional priority for appointment or promotion go beyond promoting equal opportunities and overstep the limits of the exception in Article 2(4) of the Directive. 23. Furthermore, in so far as it seeks to achieve equal representation of men and women in all grades and levels within a department, such a system substitutes for equality of opportunity as envisaged in Article 2(4) the result which is only to be arrived at by providing such equality of opportunity. 24. The answer to the national court' s questions must therefore be that Article 2(1) and (4) of the Directive precludes national rules such as those in the present case which, where candidates of different sexes shortlisted for promotion are equally qualified, automatically give priority to women in sectors where they are under-represented, under-representation being deemed to exist when women do not make up at least half of the staff in the individual pay brackets in the relevant personnel group or in the function levels provided for in the organization chart.
Marschall wrote: The Court observes that the purpose of the Directive, as is clear from Article 1(1), is to put into effect in the Member States the principle of equal treatment for men and women as regards, inter alia, access to employment, including promotion. Article 2(1) states that the principle of equal treatment means that 'there shall be no discrimination whatsoever on grounds of sex either directly or indirectly‘. According to Article 2(4), the Directive is to '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 Article1(1)‘. In paragraph 16 of its judgment in Kalanke, the Court held that a national rule which provides that, where equally qualified men and women are candidates for the same promotion in fields where there are fewer women than men at the level of the relevant post, women are automatically to be given priority, involves discrimination on grounds of sex
Directive 2000/78/EC wrote: Article 7 Positive action 1. 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 or compensate for disadvantages linked to any of the grounds referred to in Article 1.
Directive 2000/78/EC wrote: Article 1 Purpose The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
TFEU wrote: Article 157 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.
GM228 wrote: » Hum, national law in the Netherlands specifically allowed it, Irish law does not.Badeck was specifically in relation to Child Care employment so is non applicable as IIRC the ECJ stated it was not applicable to other employment sectors. The rest are applicable, Abrahamsson was very similar to here where they wanted women over men and the ECJ held:-https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?isOldUri=true&uri=CELEX:61998CJ0407Kalanke and Marschall are probably the most important of the cases. I'll refer to the Advocate Generals opinion in Case C-476/99 which sums them up nicely:-https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61999CC0476 ECJ case law seems to suggest that jobs for the girls is not in compliance with ECJ case law and is certainly not in compliance with domestic legislation. It is also worth noting that the Equality Act 2004 (which amended the Employment Equality Act 1998) is based on EU Directive 2000/78/EC which allows positive action in certain circumstances, but not gender based which is why it amended S33.https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex:32000L0078 As you can see gender reasons is not included as one of the allowed positive actions as it is not included in Article 1. On a final note Article 157 (4) of the TFEU is interesting though:-https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E157:EN:HTML But in order to invoke Article 157 the state would need to provide for such measures in national legislation and amend S33 again.
BattleCorp wrote: » If there is such inequality because of it being men promoting men to professorships, would an easy solution be to have the interview panels consist of an equal number of men and women? That would create a level playing field, wouldn't it?
