Understanding Gender Equality in Employment: A Legal Analysis
General Framework of the Directive
General framework of the Directive: Equal treatment in access to employment, promotion and training, working conditions, and Social Security.
Obligation of Member States to actively consider the goal of equality between men and women when formulating and implementing laws, regulations, administrative provisions, policies, and activities.
IT: the absence of any direct or indirect discrimination based on sex. No discrimination based on marital or family status.
DD: where one person is, has been, or would be treated less favorably than another in a comparable situation on grounds of sex. DI: where an apparently neutral provision, criterion, or practice would put persons of one sex at a particular disadvantage compared with persons of the opposite sex unless that provision, criterion, or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. Harassment and sexual harassment constitute discrimination based on sex and are prohibited. Prevention measures should be implemented by law or collective bargaining.
Harassment Defined
Harassment: a situation in which there is unwanted behavior related to the sex of a person, with the purpose or effect of violating the dignity of the person and creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Sexual Harassment Defined
Sexual harassment: a situation in which any form of unwanted verbal, non-verbal, or physical behavior of a sexual nature occurs, with the purpose or effect of violating the dignity of the person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Occupational Requirements Exception
No discrimination applies when, due to the nature of the particular occupational activities or the context in which they are carried out, the characteristic related to sex is a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
Treatment regarding subjects listed in the first subparagraph 1 shall be between those enterprises and other companies herein shall paragraph that-situated similar.
This means that there is equal treatment when domestic companies are in a similar situation and are subject, in the place of business or sector concerned, to the same obligations that the companies being posted are. As regards the matters listed in paragraph 1 of the first paragraph, they are required to fulfill those obligations with the same effects.
Equal Opportunities and Treatment
Equal opportunities and equal treatment between men and women in employment and occupation. Study of the Directive 2006/54/EC of the European Parliament and the Council of 5 July 2006. Treaty on the Functioning of the European Union. Article 8. In all its activities, the Union shall aim to eliminate inequalities between men and women and promote equality. Article 157. Each State shall implement the principle of equal pay for men and women for equal work or work of equal value.
Concept of Retribution
A) The normal salary or wage or minimum base. B) Any other consideration, directly or indirectly, in cash or in kind, to the worker because of the employment relationship.
Equal Pay Defined
Equal pay without discrimination based on sex means:
- a) That pay for equal work paid per unit of work shall be calculated on the basis of the same unit of measurement;
- b) That pay for paid work per unit time is equal for the same job.
To ensure full equality between men and women in working life, the principle of equal treatment shall not prevent any State from maintaining or adopting measures providing for specific advantages to facilitate the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. (Vid ECJ jurisprudence.)