some positive action is needed.
Written by Dr Peter Jepson, for 'Diversity and Discrimination'.
There is no doubt that when it comes to selling
products, women often have a flair for presentation. In some areas of
employment, such as clothes shops, women are very well represented amongst the
sales force. While in others, men
seem to have retained dominance. If we take the example of car sales, more and
more women are now buying cars but it seems that men are the sellers of those
cars. This is despite the fact that women often complain of a patronising and
chauvinistic attitude from the male salesperson.
Not surprisingly, many car dealers are keen to
employ women to sell their cars. In this article I examine the laws associated
with taking positive action to recruit women into employment, explaining some of
the restrictions of the discrimination laws and suggesting ways that may enable
companies to take positive steps towards recruiting female applicants. I will
also, towards my conclusion, argue for some changes in the law to enable
positive action within the limits of an equal opportunities framework.
The current law is broadly recognised as requiring
people to be recruited on the basis of merit. This means that, as per s.1 of the
Sex Discrimination Act 1975, it is not acceptable to select applicants because
of their gender. This particularly applies to all-women shortlists[i]
and can also apply to criteria that indirectly results in more women than men as
being qualified for the post[ii]
ñ i.e. unless the criteria used can be objectively justified as necessary.[iii]
This UK legislative position is re-enforced by Treaty of Rome provisions and the
Equal Treatment Directive 76/207,[iv]
ëthere shall be no discrimination whatsoever on grounds of sex in the
conditions, including selection criteria, for access to all jobs or posts,
whatever the sector or activity and to all levels of the occupational
steps that can be taken.
These restrictions clearly mean that companies, such
as Currie Motors,[v] who are keen to see a fair
representation of male and female staff amongst its sales force, cannot simply
select a person for a job because of their gender. Though companies can take
positive steps to encouraging women applicants to come forward.
They could offer training to any current female members of staff who they
feel could become good sales people.
They could produce a job description that requires experiences of sales,
as opposed to experience of car sales, thereby enabling more women applicants.
They can also place advertisements in journals that may attract the kind
of applicants they are seeking to achieve. For example, if they wish to reach
out for more women sales applicants, and also attract more women customers, they
could advertise job vacancies in womenís magazines. Inevitably this should
result in more women applicants for any sales vacancies.
However, assuming that more women apply for the sales
post, from this moment in time selection should primarily be based upon merit.
To give an illustration of this point we can consider the case of Kalanke v
Freie Hansestadt Bremen[vi]
which involved two horticultural workers, applying for promotion to a more
senior post. In this situation, the
post was awarded to the female because a national rule provided for, where
equally qualified men and women candidates for the same promotion in fields
where there are fewer women than men at the level of the relevant post, women to
be automatically given priority. This automatic preference was held to be beyond
the parameters of Article 2(4) of the ETD, which provides for ëmeasures
to promote equality of opportunity for men and women, in particular by removing
existing inequalities which affect womenís opportunities.í
Not surprisingly this Kalanke decision was considered
due to its potential for limiting EU and governmental equal opportunity and
positive action measures. Accordingly, amidst such criticism, the European Court
of Justice looked again at the issue and, in the case of Marschall v Land
revised its approach.
In Marschall the issues were broadly similar to
Kalanke, in that Mr Marschall applied for promotion to the post of a first-grade
teacher in a secondary school and the post was given to a female despite the
fact that both candidates were considered to be equally qualified.
However, in Marschall there existed one marginal, but noticeable,
difference - in that there was a legislative provision that allowed
administrative latitude where reasons specific to the male candidate existed
which could tilt the balance in his favour.
Accordingly, the ECJ rejected the claim of Mr Marschall and held that it
can be possible to give a preference to a female candidate in circumstances of
promotion provided that (a) the candidates are objectively assessed as equal,
and (b) such criteria for objective assessment takes into account any elements
that tilt the balance in favour of the male candidate (such criteria must not of
course be such so as to discriminate against the female candidate).
the recent case of Bardeck v Hessischer[ix]
the ECJ was asked to consider a number of situations associated with positive
action in the public sector. In particular, they examined provisions where
national legislation enables priority to be given to female candidates in the
national rule enables priority to be given to female candidates, i.e. where male
and female candidates have the same qualifications, in order to comply with
binding targets in a ëWomenís Advancement Planí. The ECJ held this to be acceptable provided that candidates
are the subject of an objective assessment which takes account of the specific
personal situations of all candidates.
such rules provide for binding targets for women, stemming from the ëWomenís
Advancement Planí, in relation temporary posts of an academic nature. This
being allowed provided that there does exist a minimum percentage of women which
is at least equal to the percentage of women among graduates who hold the
establishment of womenís quotas in training with a view to obtaining
qualifications. The ECJ allowed this since the quotas are only for training and
no male candidates are definitively excluded.
male and female candidates are assessed as having equal qualifications and those
drawing up a shortlist establish that the same number of woman as men are
selected for interview, notwithstanding that there may be more male than female
applicants. Again, the ECJ allows such positive action provided candidates have
equal qualifications and the intention is to promote equal opportunities for men
and women within the meaning of Article 2(4) of the ETD.
also accepted a national rule that recommends, in relation to the appointment of
collective bodies and administrative supervisory bodies, that at least half of
the members of the bodies must be women. This
being allowed so long as it is not mandatory and permits, to some extent, other
criteria to be taken into account.
the case of Badeck goes a long way to enabling positive action in the selection
and training of women for posts. However, the problem for the UK is that the
decision was in relation to German legislation that enables positive action in
relation to the employment of women. The UK government have so far failed to
introduce laws that will enable this form of positive action.
need for legislative change.
case of Badeck does provide the Employment Minister, David Blunkett, with
legislative freedom to introduce some amendments to the Sex Discrimination laws
that will open further employment opportunities for women. This should take the
form of encouraging posts to be given to women where they are under-represented
in the workforce and when it can be objectively determined that they are equal,
in terms of merit, to any male applicant. Certainly, such changes can be
justified, since it is clear that often women are under-represented in certain
employment sectors due to historical factors.
said that, opening up opportunities and changing attitudes are two different
things. Currie Motors point out that they are keen to employ women sales
persons, but when they have recruited such staff they did not stay long due to
the hours, the shift work, and the requirement to work some weekends. Probably
an explanation for this is that, no matter what the opportunities, when it comes
to family values women often take their responsibilities much more seriously
than men. An admirable criterion, if ever I saw one ñ what a shame it could
not be made a required condition of employment for any post.
Dr Peter Jepson.
[i] Jepson and Dyas-Elliott v The Labour Party  IRLR 116.
[ii] 1.1(b) of the Sex Discrimination Act 1975.
[iii] Bilka Kaufhaus  IRLR 117.
[iv] While the Equal Treatment Directive may not be directly binding in private employment situations, it is worth recalling that in Marleasing - Case 106/89 - the European Court of Justice stated ìin applying national LawÖ the national court called upon to interpret it was required to do so as far as possible in the light of the wording and purpose of the Directive in order to achieve the result sought by the Directiveî.
[v] Thanks and appreciation needs to be given to Ms Alison Freed, of the Personnel Department of Currie Motors, for her assistance of providing information in relation to this article.
[vi]  IRLR 660
[vii] See ëCases and Materials on Employment Lawí, at page 261, by Painter, Holmes and Migdal ñ published by Blackstone Press 2000.
[viii] Case C-409-95 of November 1997.
[ix] Case 158/97 decided 28th March 2000.
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