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Women and Discrimination under the Law

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Women and Discrimination under the Law Women have spent much time struggling for equality; advocating for the right to vote, the right to own property, the right to education, the right to equal employment opportunities and amongst others, the right to legal status. Women have always sought to be relieved of their subordinate position in society and to improve their domestic, economic and political position within it. They have long desired to break out of the so-called 'private sphere' and be able to participate fully and freely within the 'public sphere' of society. In the quest for equality, the law is often seen as a powerful tool, (perhaps the most powerful tool) which can be used to promote women's causes. The law has been used to tackle various issues and various Acts have been passed to reflect this. However, there is some doubt now as to the effectiveness of the law as a means to remove inequality, for many disparities still remain even after legislation has been enacted. It would thus seem that the law is not quite the forceful weapon it is thought to be and some other recourse may be needed. The perfect example of the inadequacy of the law in this respect relates specifically to employment and the ineffectiveness of the anti-discrimination legislation with regard to equality of men and women at work. Despite the fact that women are now able to participate more fully in the public sphere and obtain paid employment, they still face inequality in the work place. There are notable occupational differences, where women are often found employed in low paid, low status jobs with few prospects of promotion. Women are also more likely to be employed in part time work. This reflects the subordinate position of women within the occupational hierarchy. Two reasons can be given for this apparent imbalance in the workplace; firstly, women are subject to gender discrimination and secondly, women's role in the private sphere as the primary carer.1 Anti-discrimination legislation has been enacted in an attempt to eradicate the prevalent inequalities within the world of work. ...read more.


pregnancy, it followed that they were being discriminated against on grounds of sex.17 Reinforcing this approach, the ECJ dismissed the requirement of a sick male comparator as required by the court in Webb and acknowledged that pregnancy 'was in no way comparable with a pathological condition'.18 Cases in other jurisdictions have also used the equality principle in a way that is positive as opposed to a narrow approach that is detrimental to the needs of pregnant workers.19 The interpretation of the principle has been transformed to assert that women should be made to suffer unfavourable or detrimental treatment on the basis of her pregnancy. Such cases change the traditionally held notion of equality. The change relied on the different treatment of pregnant workers to achieve substantial equality. The ill male comparator has not been completely done away with. In the Scottish case of Brown -v- Rentokil,20 it was held that a pregnant woman who had been dismissed due to a pregnancy related illness was not discriminated against on grounds of her sex. She was treated as a man absent from work because of a long-term illness would be. The court considered it immaterial that the complainant's illness occurred during her pregnancy. However, more recently the EAT has followed the approach of the ECJ in Dekker and Webb cases. The EAT recognised the inappropriateness of the comparison of a pregnant woman with the hypothetical sick man and that 'Pregnant women in employment occupy a special position which attracts special protection'.21 The EAT also clarified the causation element of dismissal case, the basic question being whether pregnancy was an effective cause of a worker being dismissed. Fredman has noted that the ECJ seems to be reverting to the male comparator approach,22 where for example in the case of Gillespie23 women were denied the right to full pay whilst on maternity leave for there was no male comparison in that same situation.24 It would this seem that the equal treatment route is complicated and inconsistent when it comes to the protection of pregnant workers and parents. ...read more.


1 Barnett (1998) p. 51 2 Rose 'Employment Relations' (2001) p. 575 3 The Gender Pay Gap - a Research Review 2001 (www.eoc.ac.psiweb.com) 4 Rose (2001) p. 564 5 Clarke, L: Discrimination, (London, IPD 1995), p. 9 6 Statutory Instrument 2001 No. 2660 The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 7 Women and the Law, Chapter 5: Pregnancy and Parenthood (Oxford, Clarendon Press, 1997) p. 180 8 ibid 9 The Equal Opportunities Commission reported a 30% increase in the number of complaints received by women on their return to work from maternity leave. Annual Report 1995 10 Barnett (1998) p. 96 11 Turley -v- Allders Stores Ltd [1980] ICR 66 12 ibid per Bristow, J at p 70D 13 Hayes -v- Malleable Men's Working Club and Institute [1985] ICR 703 14 [1992] 2 All ER 43, CA, per Glidewell J at p. 52 15 Fredman (1997) p. 187 16 Dekker -v- Stichting Vormingscentrum voor Volwassenen, Case C-177/88 [1990] ECR I-3941 17 Contrary to the Equal Treatment Directive 76/207 EEC 18 The case was referred to the ECJ from the House of Lords [1995] IRLR 645, HL. Fredman (1997) p. 187 19 See for example Canadian case Brooks -v- Canada Safeway Ltd (1989) 1 SCR 1219; US case California Federal Savings and Loan Association -v- Guerra 479 US 272 (1987) 20 [1995] IRLR 211 21 O'Neill -v- Governors of St Thomas More RCVA Upper School [1996] IRLR 372 (EAT) per Mummery J at p. 376 22 Fredman (1997) p.191 23 Case C-342/93 [1996] IRLR 214 ECJ 24 See also the EAT case British Telecommunications plc -v- Roberts EOR No 70 (1996) p. 53 25 Fredman (1997) p. 193 26 Employment Relations Act 1999, Sch 4, section 71 27 EU Parental Leave Directive (96/34) implemented by the Employment Relations Act 1999 28 Smart (1989) p. 5 29 Stang Dahl (1987) as cited in Smart (1989) p. 24 30 Smart (1989) p. 66 ?? ?? ?? ?? ...read more.

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