Recruiting women -

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.

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] which says:

Article 3(1) 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 hierarchy.í

Positive 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.

(1)    They could offer training to any current female members of staff who they feel could become good sales people. 

(2)    They could produce a job description that requires experiences of sales, as opposed to experience of car sales, thereby enabling more women applicants.  

(3)    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.

The European Perspective.

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 controversial,[vii] 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 Nordrhein-Westfalen,[viii] 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).

In 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 following situations: 

1.       Where a 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. 

2.       Where 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 appropriate qualifications. 

3.       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. 

4.       Where 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. 

5.       The ECJ 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. 

Certainly, 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.

The need for legislative change.

The 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.

Having 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.

9th May 2000.

Endnotes.

[i] Jepson and Dyas-Elliott v The Labour Party [1996] IRLR 116.

[ii] 1.1(b) of the Sex Discrimination Act 1975.

[iii] Bilka Kaufhaus [1986] 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] [1995] 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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