Incorporating Women's Reality into Legal Neutrality in the European Community: The Sex Segregation of Labor and Work-Family Nexus

By Claussen, Cathryn L. | Law and Policy in International Business, Fall 1991 | Go to article overview

Incorporating Women's Reality into Legal Neutrality in the European Community: The Sex Segregation of Labor and Work-Family Nexus


Claussen, Cathryn L., Law and Policy in International Business


In the European Community, gender equality in employment did not arise out of a civil rights struggle. Modern European feminist groups, reluctant to endorse the existing political structure, had customarily rejected an equal rights approach to employment. (1) Equal opportunity law was prompted instead by economic concerns affecting the European Community as a whole which eventually filtered down to the member nations. Originally, the 1957 Treaty of Rome, with an eye toward preventing the exploitation of lower paid female labor by competing nations, mandated equal pay for women. (2) Member states, however, largely ignored this provision. (3) Not until the 1970s, when the European Commission (Commission) and the European Court of Justice (ECJ) began to press for compliance with the 1957 mandate, did the member nations finally implement gender equality laws. (4)

Despite the ensuing years of formal equality, de facto discrimination remains. Manifested by a segregated labor force, fundamental inequalities persist due to stale concepts of work and rigid notions about family roles. (5) With the increasing prevalence of single-parent and two-earner families, there is a need for the law to change in order to reflect the reality of women's lives at the work-family nexus. Targeting this issue in its 1986-90 Medium Term Programme on Promoting Equal Opportunities for Women, the European Commission has adopted a comprehensive policy resolution that moves beyond the limitations of formal equal opportunity. (6) Regrettably, however, the 1986-90 Program lacks legal force as it was adopted solely as a resolution. (7)

This Note examines gender equality law in the European Community, and demonstrates that, while the situation for women has improved somewhat, a policy of formal equal opportunity has failed to eliminate the sex segregation of labor. Feminist theory is used to explain the persistence of labor segregation, highlighting the lack of legal attention to the interrelationship that exists between work and family in the lives of most women. The Note outlines an equal actor approach that would make gender a factor in formulating sex-neutral, functional roles as referents for equality laws. It analyzes the Commission's 1986-90 program from this theoretical perspective, and examines Community-level support for the program's goals. State-level resistance to such an integrated work-family policy is then discussed. Finally, this Note proposes that the European Commission and the European Court of Justice resume a stronger leadership role in this area and extend the principle of equal treatment to embrace the intimate connection of work and family.

EUROPEAN GENDER EQUALITY LAW

Origins

Since 1975 gender equality law has developed rapidly in the European Community, despite the lack of initial support from women's organizations. (8) di fr / Instead, it fell to the European Commission and the Court of Justice to spur the member states to begin to bring national laws into compliance with European law. In actions brought by the Commission against the member states for infringement of their duties, as well as in cases referred to it by the national courts, the Court of Justice gamely pursued formal equal opportunity for women. (9)

The Court interpreted the early cases against a backdrop of a single treaty article and three equality directives. Article 119 of the Treaty of Rome addresses women through its equal pay provision, providing for "equal pay for equal work." (10) The three original equality directives were the Equal Pay Directive, (11) the Equal Treatment Directive, (12) and the Social Security Directive. (13)

Article 119 was not given serious consideration until 1971 when Defrenne v. Belgian State first came to the Court of Justice. (14) In Defrenne, the Court interpreted article 119 strictly, holding that it did not reach occupational social security schemes or retirement ages. …

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