The Kalanke Ruling: Gender Equality in the European Labor Market

Northwestern Journal of International Law & Business, Dec 1998

Part I of this note describes the facts that lead up to the ruling in Ka- lanke v. Freie Hansesetadt Bremen and critiques the decision of the ECJ. Since the Court's reasoning lacks depth and precedence, Part II examines the opinion of the Advocate General to explain the possible reasoning be- hind the decision. Part III scrutinizes the degree of cohesiveness between the Kalanke ruling and subsequent decisions by the ECJ. Part IV follows the reactions of the European market to Kalanke. Part V examines propos- als to minimize the effects of the decision. Finally, the note proposes statutory language designed to remedy the situation created by Kalanke.

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The Kalanke Ruling: Gender Equality in the European Labor Market

The Kalanke Ruling The K alanke Ruling : Gender Equality in the European Labor Market 0 Thi s Comment is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Northwestern Journal of International Law & Business by an authorized administrator of Northwestern University School of Law Scholarly Commons Part of the International Law Commons; and the Labor and Employment Law Commons - 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)


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Ann Donahue. The Kalanke Ruling: Gender Equality in the European Labor Market, Northwestern Journal of International Law & Business, 1998, Volume 18, Issue 3,