Jobs for the girls

Discrimination by another name.

Should not happen.

How can a minister promote excluding someone from a job because of their gender ?

Last year I applied for this return to work program for women in engineering at Medtronic (all while being a male):

https://www.irishjobs.ie/Jobs/Return-To-Work-Program-for-8081481.aspx

My application was refused as I "did not meet their criteria for the position". I made a complaint to the irish jobs website for hosting the ad. They held their hands up and put me in direct contact with the company and told me to sort it out with them, which I did. I got a whole load of legal jargon back from them referencing different laws claiming that what they were doing was not discriminiation based on gender

All of this is a pretty convoluted way of trying to eradicate gender based discrimination...

Victor wrote: »

http://www.irishstatutebook.ie/eli/1998/act/21/section/24/enacted/en/html#sec24

http://www.irishstatutebook.ie/eli/1998/act/21/section/33/enacted/en/html#sec33

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.

Victor wrote: »

I'm happy with the first quote, not the second.

Are you going to elaborate for our benefit with your wisdom of the law or just take the chance at a cheap quip?

Here's a paragraph taken from https://www.oireachtas.ie

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.

Victor wrote: »

http://www.irishstatutebook.ie/eli/1998/act/21/section/24/enacted/en/html#sec24

http://www.irishstatutebook.ie/eli/1998/act/21/section/33/enacted/en/html#sec33

Note S33 has been amended by the S22 of the Equality Act 2004 to specifically exclude positive measures based on gender:

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.

Also S24 does not apply, "without prejudice" would indicate it relates to any existing right or claim and clearly such a position would not be an existing right or claim.

That said the courts have been known to interpret equality laws in strange ways, remember for example Portmarnock Golf Club's "men only" policy, they won that case in the Supreme Court in 2009.

RTE News stated govt are confident it will withstand legal scrutiny, 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"

Maybe a course about womens experiences in the workplace

Googling leads me to this, which I'm pretty sure is the action plan whose launch was the occasion for the Minister's remarks about women-only chairs.

There's an interesting and relevant discussion on "gender-specific positions" on page 87-88. It seems this question has already arisen, and in relation to academic positions too. The Technical University of Delft offers a number of women-only positions. A male claimant argued (before a Netherlands tribunal) that the failure to consider him for one of these positions was a violation of European equality law. The Tribunal said no, the women-only positions were an "acceptable positive action measure" because the University had shown that:

- There was a serous problem.

- "Softer" measures had not been effective to solve it.

- The measure that was challenged was effective in practice.

- The measure was "not disruptive" because the number of women-only posts was a statistically insignificant fraction of the total number of such posts offered in that year - worldwide!

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.

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...

along the same lines of this the girl scouts of america are suing the boy scouts of america for actively seeking girl members which is infringing on their trade mark :rolleyes::rolleyes:

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.

Hum, I'm not so sure about all that and if they did their homework properly? National law in the Netherlands specifically allowed it, Irish law does not.

I'm not even sure how a "case" was taken to the The Netherlands Institute for Human Rights, they are not a tribunal or industrial relations court and have no powers or the ability to hear cases, they deal in research and education in relation to human rights issues similar to the Irish Human Rights and Equality Commission, is it not odd that the citation for the "case" is simply "2011/2012". Perhaps they can look at complaints and advise on such, but they certainly have no legal investigative powers and are far from being a court of law.

I think that document is very flawed especially in citing cases that apparently don't support its position.

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 and all dealt with the posative measures under the Equal Treatment Directive (Directive 76/207/EEC) allowed under Article 2 (4):-

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A31976L0207

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 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:61998CJ0407

(Note that "Article 141(4) EC" mentioned in the judgement is the now Article 157 (4) TFEU which I have quoted near the end of this post)

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.

Kalanke 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

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.

Furthermore, from Kalanke:-

http://curia.europa.eu/juris/celex.jsf?celex=61993CJ0450&lang1=en&lang2=FI&type=TXT&ancre=

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 also held that measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities had to be narrowly construed.

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.

And from Marschall:-

http://curia.europa.eu/juris/document/document.jsf?text=&docid=43455&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=3458292

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

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. I find it very odd they were quoted.

It is also worth noting that the Equality Act 2004 (which amended the Employment Equality Act 1998) is based on the Employment Equality Framework Directive
(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

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.

As you can see gender reasons is not included as one of the allowed positive actions as it is not included in Article 1.

Article 157 (4) of the TFEU is interesting though as it is mentioned in that document:-

https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E157:EN:HTML

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.

In order to invoke Article 157 the state would need to provide for such measures in national legislation and amend S33 again. The Netherlands did just this, we have not, but perhaps the Minister and AG have some legislative changes proposed that we don't know about, although in light of the above cases and the "positive measures may not give women absolute and unconditional priority" comment specifically relating to Article 157 I doubt domestic legislation changes will be enough or a reliance on Article 157.

Thanks, GM228. You read the cases so I don't have to.

It did occur to me, after I had posted, that it was a little odd to be citing the authority of the Netherlands Institute for Human Rights, and accepting at face value the claim that NIHR was interpreting and applying ECJ cases rather than to cite the relevant ECJ cases directly, and that this might be explained if the interpretation asserted by the NIHR was, ah, at the more favourable end of a scale of possible readings of the ECJ cases. And your analysis suggest that this is very much so.

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?

That would be the common sense approach.

Imagine if this goes ahead, it could harm women in private industry. Prospective employer's will be asking themselves "did she earn the job on merit, or only get it because not enough women applied"