The Kalanke Ruling: Gender Equality in the European Labor Market
The Kalanke Ruling
The K alanke Ruling : Gender Equality in the European Labor Market
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The Kalanke Ruling: Gender Equality
in the European Labor Market
Ann Donahue*
INTRODUCTION TO DISCRIMINATION
Meet Ruth. She is a twenty-three year-old graduate of a university in
Bonn, Germany. She just obtained her degree in civil engineering and is
returning to her hometown in Bremen, Germany, to look for a job. She
hopes to get a position with the city and to excel in her field. Yet
interviews have proved fruitless for Ruth. While she shares the same
qualifications as others her age, she is being passed over for her male colleagues.
Even more astonishing is the fact that Ruth has no legal remedy.
Although Ruth is a fictional character, her story is typical of many
women's experiences in the European job market. Ruth represents women
who have been and will be denied career opportunities due to gender
discrimination. During the past century, the introduction of women into the
labor market has forced legislatures to implement and employers to adjust
to laws regarding gender equality and positive action. While such laws
have changed the dynamics of the employer-employee relationship, they
have failed to provide women with unconditional equality in the workplace.
During the past few decades, gender equality has arisen as a topic of
concern in the United States and abroad.' Recently, legislatures worldwide
recognized and addressed gender equality by passing laws prohibiting
discrimination. 2 The European Community encouraged such laws in Member
. Juris Doctorate Candidate, Northwestern University School of Law, 1998. I would like
to thank Professor Martha Fineman, Columbia University, Professor Laura Lin,
Northwestern University, Ray Sinnapan, Allison Wing-Takahashi, Brad Aaron, Patrick Shaw, and
Michelle Ochs for their comments. I would also like to thank Darlene Donahue, Paul Donahue,
and William Donahue for their support.
1See Josephine Shaw, Recent Developments in the FieldofLabourMarket Equality: Sex
Dis2cJriilmliAnnadtiroenwLsa, wNiantitohneaFl eadnedrIanlRteerpnuabtiloicnoaflSGoeurrmceasnoy,f1W3oCmoMenp'.sLRAiBg.htLt.Jo.
E18qu(1a9l9E1m).ployStates,3 and many Members complied by passing equal opportunity laws.4
This note examines one such law.
The state of Bremen in Germany created a positive action law for
women in under-represented areas of the state employment market.5 The
law provides for the promotion of equally qualified women when
underrepresented in an area of employment. Yet, the European Court of Justice
(ECJ) determined that the law exceeded the bounds of the Council Directive
76/207, Article 2(4), and thus was inconsistent with the anti-discrimination
laws of the European Union.6 The issue addressed by the Court and this
note involves balancing non-discrimination against positive action.
Specifically, the question addressed here is whether a law which promotes a
person of one gender over a person of another gender when all other
qualifications are equal constitutes unlawful discrimination.
3See Council Recommendations 84/635, 1984 O.J. (L331) 34, which suggests Member
States "adopt a positive action policy designed to eliminate existing inequalities affecting
women.. .eliminate or counteract the prejudicial effects on women in employment.. .from
existing attitudes... encourage the participation of women in.. .occupations... where they are
at present under-represented."; see also Andrews, supranote 2, at 414.
4Andrews, supranote 2, at 414.
5 Case C-450/93, Kalanke v. Freie H
ansestadt Bremen, 1995
E.C.R. 1-3069, 1-3072,
[19696] 1 C.M.L.R. 175, 191 (1995) [hereinafter Kalanke].
Kalanke, 1995 E.C.R. at 1-3078, [1996] 1 C.M.L.R. at 194.
7 Before delving into the decision and the reasoning behind the ruling, an explanation of
the European Union is required. In 1957, negotiations among France, West Germany, Italy,
Belgium, the Netherlands and Luxembourg resulted in the Treaty of Rome. Andrews, supra
note 2. See also Treaty Establishing the European Economic Community, March 25, 1957,
298 U.N.T.S. II [hereinafter Treaty of Rome]. The Treaty of Rome established the
European Economic Community. Rebecca Means, Kalanke v. Freie Hansestadt Bremen: The
Significance of the Kalanke Decision on Future PositiveAction Programsin the European
Union, 30 VAND.J.TRANSNAT'L L. 1087, 1091 (1997). In signing this Treaty, these countries
established a free trade area. Id. Ireland, Denmark, and the United Kingdom joined in 1973.
Id. Greece became a member in 1979, with Spain and Portugal following suit in 1986. Id.
Recently, Austria, Sweden an (...truncated)