Gender Policies in the European Union (Studies in European Union (New York, N.Y.), Vol. 1)

Gender Policies in the European Union Edited by

Mariagrazia Rossilli Foreword by

Louise A. Tilly

PETER LANG

New York • Washington, D.C./Baltimore • Boston • Bern Frankfurt am Main • Berlin • Brussels • Vienna • Oxford

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Library of Congress Cataloging-in-Publication Data Gender policies in the European Union / edited by Mariagrazia Rossilli. p. cm. — (Studies in European Union (New York, N.Y.); vol. 1) Includes bibliographical references. 1. Women— Employment— Law and legislation— European Union countries. 2. Equal pay for equal work— Law and legislation— European Union countries. 3. Sex discrimination in employment— Law and legislation— European Union countries. I. Title. II. Series. KJE3175.R67 341.7’63— dc21 99-15096 ISBN 0-8204-4508-8 ISSN 1094-6209

Die Deutsche Bibliothek-CIP-Einheitsaufnahme Gender policies in the European Union / edited by Mariagrazia Rossilli. −New York; Washington, D.C./Baltimore; Boston; Bern; Frankfurt am Main; Berlin; Brussels; Vienna; Oxford: Lang. (Studies in European Union; Vol. 1) ISBN 0-8204-4508-8

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An interdisciplinary group of European feminist scholars critically explores the European gender policies from the founding of the European Community to the 1997 Treaty of Amsterdam. They offer different interpretations of the contradiction between the exceptional development of gender equality policy within Community social policy and actual gender inequality. Analysis of the EU policies on the equality of women reveals their central role in the making of the common market and the Community’s modernizing action to reform employment patterns and welfare systems. From different, and at times contrasting, feminist perspectives, the contributors propose new policies to challenge the current situation and overcome the EU juridical defect in women’s rights, which exacerbates the European “citizenship deficit” and “democratic deficit.” “Will women be more equal or less in the New Europe? The thought-provoking answers proposed in this multiperspective volume by leading scholars of gender policy in the European Union rest on passionately thorough research on issues as diverse as sexual harassment and old-age security, workplace parity, and electoral quotas. They should engage not just European women but all who are committed to advancing the conditions for a more egalitarian, inclusive, and meaningful practice of citizenship.” Victoria de Grazia, Professor of History, Columbia University Mariagrazia Rossilli is a sociologist and freelance researcher. Her work on international and European Community policies on women has appeared in several journals.

 Contents

FOREWORD Louise A. Tilly

vii

LIST OF ABBREVIATIONS

xi

1. INTRODUCTION: THE EUROPEAN UNION’S GENDER POLICIES Mariagrazia Rossilli

1

2. FROM EQUAL PAY TO EQUAL EMPLOYABILITY: FOUR DECADES OF EUROPEAN GENDER POLICIES Ilona Ostner

25

3. A STUDY OF FOUR ACTION PROGRAMMES ON EQUAL OPPORTUNITIES Catherine Hoskyns

43

4. PARITY DEMOCRACY—LAW AND EUROPE Eliane Vogel-Polsky

61

5. CHANGE IN WOMEN’S POLITICAL REPRESENTATION Joni Lovenduski

87

6. EUROPEAN EQUALITY LEGISLATION ON SOCIAL SECURITY Julia Adiba Sohrab

107

7. GENDER, FLEXIBILITY, AND NEW EMPLOYMENT RELATIONS IN THE EUROPEAN UNION Francesca Bettio, Jill Rubery, and Mark Smith

123

VI

Contents



8. THE GENDER PERSPECTIVE IN THE POLICIES OF EUROPEAN TRADE UNIONS Myriam Bergamaschi

159

9. SEXUAL HARASSMENT: THE IMPACT OF EU LAW IN THE MEMBER STATES Jeanne Gregory

175

10. THE IMPLICATIONS OF EUROPEAN UNION POLICIES FOR NON-EU MIGRANT WOMEN Eleonore Kofman and Rosemary Sales

193

11. EUROPEAN UNION POLICIES ON TRAFFICKING IN WOMEN Marjan Wijers

209

APPENDIX

231

BIBLIOGRAPHY

237

NOTES ON CONTRIBUTORS

259

 Foreword Louise A. Tilly

The essays in this volume provide much important empirical information and theoretical exploration about the recent past and current situation of the European Union and women; they also provoke reflection about comparisons of three sorts. The first comparison is a historical one: in what time period and through what process has the EU become what it is today? The second is a comparison of European states in their position on gender and women’s issues. The third is a comparison of the European Union policies with those of the United States—a federated political system in which there are very strong political differences that are at least partially regional, and concerns about business competitiveness and pressure from free market ideologues have rolled back even the simulacrum of a welfare state that once existed. An American reader is struck by the considerable legal progress the authors discuss toward eliminating barriers in the economic arena for women workers, such as achieving equal pay for equal work and equality in social security matters. The history of the European Union has been one of almost steady achievement of legislation promoting greater gender equality in economic matters. This record is at least partly the result of the history of the EU itself; it began as a step toward a common market and community capable of competing on world markets with the United States and later with Japan—the two major world economic players in the second half of the twentieth century. Much of the progress occurred in periods of growth and prosperity, in which sharing the pie was easier. Although a considerable measure of prosperity continues at this writing, economic globalization and the recent problems in Asia have decisively demonstrated to all observers that the shape and condition of the playing field have changed and will likely continue to do so. Free market ideology

VIII

Louise A. Tilly



has swept the west, concerns about competitiveness have arisen, and some see stormy clouds on the horizon. Equally clear is the fact that most of the authors insist, that despite legal change, progress has been limited even in the economic arena because of the narrow range of strategies used, all characterized by the principle of “equal treatment.” Further, much more far-reaching effort is needed in the political arena, where policy decisions are initiated and made. Indeed, in recent years, the focus has already moved to questions about increasing the presence of women in governing and decision-making roles. As Chiara Saraceno, an Italian sociologist who has also investigated European Union policies and action, wrote several years ago, “Women’s political participation is becoming one of the crucial issues, not only in the section of the EU agenda specifically devoted to equal opportunities for women and men, but also with regard to the meaning and practice of European citizenship itself.” Women’s attention and efforts to promote change have turned to “their common interest in having a less gender-blind and less asymmetrical European Union.”(Saraceno 1997). The authors also offer grounds for comparisons across states, which vary according to not only structural position but also national constitutional and institutional characteristics, as well as cultural factors. Combining these factors leads to considerable complexity in variation, which the authors systematically seek to explore and elucidate. On the question of comparison to the United States, the American reader is again struck by the fact that “parity” representation can even be discussed as a potential strategy. In fact, given the electoral focus of American political parties and the expense of electoral campaigns, women in electoral office at the national level are even rarer than in most EU Member States. The way that sexual harassment has been successfully moved to EU level consideration, with the adoption of a 1991 Recommendation on the question, is also an object lesson. Many American conservatives consider sexuality as a moral issue, by which some male, as well as female, “excessive sexuality” is denounced, as demonstrated so clearly by the impeachment of President Bill Clinton; the salience of moral concerns contributed to sexual harassment guidelines and procedures being formalized earlier in the United States. Compared to the United States, then, the European Union has been remarkably successful in passing legislation concerning the economic and social spheres; and the efforts and arguments about political representation and citizenship demonstrate continued pressure from mobilized feminists.

Foreword

IX



What lies ahead is also the concern of the authors about unemployment, given the present economic uncertainty (in Europe, unemployment is considerably higher than in the United States), and concerns about the deterioration of welfare state programs. Can the European Union Member States be persuaded that women’s participation in political power and the institutional change to bring this about are fair and democratic? Can the new employment relations such as flexibility be deployed in ways that do not further ghettoize women workers, yet also serve all workers’ needs in addition to those of employers? Can the employment and social rights of non-EU migrant women be protected and extended, despite the opposition and xenophobia of segments of EU Member States populations? The authors of these essays make a persuasive case for all these policy changes or extensions. Feminists must ally across borders and with other interested groups around these issues in today’s less-than-favorable circumstances to mobilize and promote this program of fairness and democracy. Success will demonstrate the ability of European women to overcome narrow national interests in the interest of a more perfect Union. Such a goal and such commitment in their own country would certainly be welcomed by United States feminists as well. This book is an important step in sketching out a blueprint for such change.

 Abbreviations

CEC DG EC ECJ EMU EOU EP ETUC ETUI EU EWC EWL ILO IPU. NGO OECD OJ TEU

Commission of the European Communities Directorate General European Community European Court of Justice Economic and Monetary Union Equal Opportunities Unit European Parliament European Trade Union Confederation European Trade Union Institute European Union European Works Councils European Women’s Lobby International Labor Organization Inter-parliamentary Union Non-governmental organizations Organization for Economic Co-operation and Development Official Journal of the European Communities Treaty on European Union (Maastricht Treaty)

Chapter 1

 Introduction: The European Union’s Gender Policies Mariagrazia Rossilli

The European Union and European Metamorphosis1 The birth of the European single currency (euro) on January 1, 1999 constitutes the point of arrival for the monetarist policies set out under the neoliberal framework of the Maastricht Treaty (1993) and the Stability and Growth Pact (1996).2 The latter strengthens the Treaty’s rules on budgetary discipline among the members of the Monetary Union by means of financial sanctions. The single currency marks the crucial point toward which the whole history of the European Community has been heading: the history of the process of regulating of the liberalized internal market, top-down planning of the modernization of European societies, dismantling welfare states, and deregulating labor (Mortillaro 1998). The Maastricht Treaty works to combat national public budgetary deficit and debts, and pursues the goal of the balance of public finances. It establishes the European Central Bank (ECB), whose primary objective is to ensure price stability and low inflation, and assures that it will remain independent from political powers. In this way, the Treaty has reshaped the picture and the future of Europe. It marks an epochal shift from the post-war Keynesian social model of European democracies based on full social citizenship and the participation of citizens in the social state. In spite of all the neofunctionalist promises of spillover, what has been at the fore in the Community to date is the European “economic citizenship.” There is a broad consensus that the limited and vague notion of Union citizenship ‘constitutionalized’ in the Maastricht Treaty is substantially an act of symbolic importance (O’Leary 1996; Jessurun D’Oliveira 1995;

2

Mariagrazia Rossilli



Lehning 1997). As the European Commission itself has conceded, the ambitious notion of Union citizenship has not produced measures conferring truly effective rights. The Amsterdam Treaty (1997) has taken only small steps to help forward the construction of European citizenship. Indeed, it still fails to include a basic common standard of fundamental social rights guaranteed to EU citizens. The social rights recognized in the Community Charter of the Fundamental Social Rights of Workers, which figure in the Treaty only as not legally binding principles, do not allow for a metamorphosis of economic citizenship into the full social citizenship of the European democratic tradition (Leibfried 1993). The social policy of the EC to date has been confined to setting a minimum common denominator of workers’ rights essential to the functioning of the common market, in order to avoid intra-EC social dumping and remove the obstacles to the mobility of labor (“ negative integration,” see chapter 2). Over the past two decades, the many attempts of the European Commission to broaden the European social dimension have had poor results. In the 1980s the intergovernmental Council of Ministers, as legislative power, and the European Commission, as supranational executive, fought a battle over social policies. On the one hand, the governments of Member States resisted any further social regulation or broadening of EC competence in matters of social legislation. On the other, Jacques Delors, as European Commission President from 1985 onward, was a strong upholder of a European social model that would increase economic competitiveness through a flexible and mobile workforce, while providing a basic Community standard of workers’ rights. The Commission, however, could not make much headway against the unanimity voting rule in the Council of Ministers. The Treaty of Maastricht includes a provision to overcome this political stalemate. It constitutionalizes the ‘subsidiarity’ principle, according to which Community action shall be undertaken only if the same objective can be “ better achieved” by the Community than by the individual Member States. In all other cases, such as most social matters, activities should be left within the scope of the nation-states. In addition, Article 1 of the Social Policy Agreement, annexed to the Treaty, establishes that the social legislation of the Community and Member States must be strictly compatible with the competitiveness of the Community economy, thereby introducing market compatibility requirements in the field of social policy and indirectly undermining the social rights of citizens guaranteed at the national level.

Introduction

3



Hence, an institutional and legal asymmetry is set down in the Maastricht Treaty. The ‘subsidiarity’ principle does not apply to the ECB, which is a totally supranational body with supranational competence. Neither does it apply to the economic convergence criteria that Member States must satisfy in order to participate in the single currency. Instead, the ‘subsidiarity’ principle applies to social redistributive policies that are not essential to the functioning of the internal market and can be “ sufficiently achieved” by the individual Member States (chapter 2). The imbalance between the EC restraints on the economic policies of the Member States and the lack of a Community redistributive social legislation has actually accelerated the deterioration of national welfare systems and the transformation of welfare states toward a wage-labor centered pattern of welfare provisions on a relatively low level. The result has been the steady and severe diminution of the social rights of citizens. While the restrictive policies dictated by the Maastricht conditions have increased the already high rate of unemployment (at the end of 1997 in the EU an average of 10.8 percent of workers were unemployed), the ‘subsidiarity’ principle also applies to employment policies. The Treaty of Amsterdam only provides for a coordination of the employment policies of Member States. It does not provide any instrument, however, for financing policy measures to stimulate the creation of jobs, nor does it set any obligation or quantified targets that member countries must meet in order to reduce unemployment. Along the lines of the Amsterdam Treaty, a coordinated strategy for national employment policies was agreed upon at the Luxembourg Jobs Summit (1997). This strategy can be summed up as follows: reducing the overall tax burden on firms, in particular the fiscal pressure on labor costs; promoting the employability of unemployed or inactive people through the development of a skilled and adaptable workforce; modernizing work organization and forms of work, including flexible working arrangements and flexible types of contract; and strengthening the equal opportunities policies for women and men (chapter 2). One of the results of this strategy was an increase in the EU-wide competition in multiplying flexible, atypical, and deregulated forms of work. As we will see, beginning in the 1980s, the European intergovernmental arena has been used to deregulate the labor market. In fact, since then, the Council of Ministers has blocked all the European Commission’s attempts to promote Community protection of workers with nonstandard contracts, whose number has continued to increase. While the EC’s legislative void in respect to atypical forms of work has de facto fostered

4

Mariagrazia Rossilli



the deregulation of these types of jobs, EC labor legislation, guaranteeing only minimum protection and setting lower protective standards than those existing in most Member States, has de facto encouraged the leveling down of national standards of social protection of workers. On the whole, deregulating the labor market, reforming the employment patterns and protective systems of workers, and dismantling welfare states, have been the primary objectives of EC modernizing action, according to the logic of worldwide economic competition. The impressive process of transformation of European societies driven by EC neoliberal regulation has been achieved at the expense of democratic control. The decline of national sovereignty and the practical restraints on the powers of the national parliaments have not been matched by a comparable increase in the power and democracy of the supranational institutions, and the result is a dramatic reduction in democracy. In fact, the process of integration has been predominantly driven by bargaining between representatives of national governments within the Council of Ministers, where national veto power has been used as the ultimate instrument of state sovereignty. However, the predominantly intergovernmental character of the EC’s legislative power has not prevented European institutions from constraining the autonomy of national states. In the Council of Ministers itself, the qualified majority voting rule, though limited to some specific matters, has challenged national sovereignty. The history of European integration is the history of tensions between intergovernmental and supranational levels of authority and policymaking. In forty years the supranational institutions have increased their influence in policymaking in a piecemeal and contested manner. As a matter of fact, the most influential decisions of the European Court of Justice (EJC) have gone against national interests. With the Maastricht and Amsterdam Treaties, the role of the European Parliament has been enhanced, thanks to the codecision procedure applying to some areas of legislation.3 Last, but most important, the European Commission has been a formidable political entrepreneur. The Commission has used its power of legislative initiative to advance European integration through the expansion of the areas within its competence. It has sought to create consensus around its objectives, secure its legitimacy, and circumvent national institutions by opening the door to Euro interests and encouraging the activities and lobbying of public and private interest groups. Thus subnational authorities, new social movements, and societal interests— labor unions, producer groups, professional groups— have been drawn into the European polity, and have affected the way political agendas are shaped and legislative proposals made (Greenwood and Aspinwall 1998).

Introduction

5



With its mix of nationally based supranational policy formation and administration, the EU constitutes a peculiar type of political system, which is neither a federal state nor a confederation of sovereign states. A widespread interpretation discerns in the European polity the emergence of the first postmodern international political system (Ruggie 1993), far more decentralized than traditional federal states; a system of complementary national and supranational functions; a system of multilevel, multicentric or centrifugal governance in which decision making is fragmented across the supranational, national, and even subnational levels of governments (Scharpf 1994; Hooghe and Marks 1997; Marks 1997). This type of interpretation, however, conceals the hierarchy among the different institutional levels and the ultimately intergovernmental character of EU decision making. Therefore, it fails to recognize the nature and extent of the widely deplored “ democratic deficit” of the EU. National veto power, which has been successfully used for years by British governments to block the extension of the Community’s competence in social policy and can still be used in the most crucial matters, stresses the character of the Council of Ministers as a diplomatic body of intergovernmental negotiations and the inherent lack of democracy of this type of decision making. The “ democratic deficit” of the EU is not only a matter of inferior parliamentary power versus superior intergovernmental power, but is also a matter of how and for what purposes the intergovernmental power has been and can be used (Hueglin 1997). In other words, it is not only a matter of limited parliamentary power, but also of the limited expansion of qualified majority voting, which, were it extended to all decision making, would transform the Council into a supranational body, that is to say, the embryo of the upper chamber within the future European federal order. National democracies have actually deteriorated, caught between strong intergovernmental and underdeveloped supranational political decision making as the EU institutional system develops. Inevitably, the EU “ democratic deficit” has been translated into the de facto restriction of the political participation and control of citizens at the national level as well, with the most harmful effects on the already weak political rights of women. The Central Place of the Policy on the Equality of Women in the EC’s Modernizing Action Like all European Community social policy, the policies on the equality of women have been substantially confined to measures essential to the making of the common market and the restructuring of labor markets

6

Mariagrazia Rossilli



(chapter 2). In fact, EC binding legislation has been limited to provisions concerning the equality of women at work. The Treaty of Amsterdam, although it broadens Community competence in matters concerning the equality of sexes, does not represent a progress except in the area of equality of women workers (chapter 4). Apart from this, the new Treaty guarantees very little to women citizens of the European Union. It perpetuates the juridical defect in the matter of equality and so exacerbates the European “ citizenship deficit” and “ democratic deficit.” In forty years European legislation has broadened the notion of equality between men and women workers. Beginning with equal pay (article 119 of the 1957 Treaty of Rome), EC legislation has gone on to address equal treatment and equal opportunity, including parental leave and the measures to combat sexual harassment in the workplace. Despite this extension, which has been driven by the jurisprudence of the EJC and the political action of the European Commission and the European Parliament, EC policies have only achieved a certain degree of formal equality of women employed in full-time standard work and have opened new— but unequal— employment opportunities for women. The three Directives of the 1970s, which constitute the core of the EC’s legislation on this matter, prohibit discrimination on grounds of sex in workers’ pay and treatment (chapters 2, 3, and 6). The 1976 Directive on equal treatment also legitimates positive action to rebalance female disadvantages in the labor market and to promote equal opportunity for men and women. But this provision is merely optional for member governments. In addition, the European Court has always interpreted positive action very narrowly, as a restricted and specific derogation to the principle of nondiscrimination on grounds of sex (chapters 2 and 4). Hence, these Directives, as well as the Directives of the 1980s, have acted principally as catalysts on the legislation of Member States to advance the formal equality of women workers and to provide better individual guarantees against direct sex discrimination. Like the Article 119, they were aimed at establishing common rules for employers so as to avoid the use of female workers for unfair competition within the common market. In the 1980s and 1990s, the Commission has attempted to circumvent the Council’s resistance to any further social regulation and to pave the way for Delors’ social model, by developing extensive policies to promote equality between women and men. Thus, it adopted four Action Programmes on equal opportunities that were intended to redress the weak EC record of equality legislation (chapter 3). In this way, the Commission has managed to make the Council issue a series of Recommenda-

Introduction

7



tions and Resolutions (from the 1990 Resolution to combat sexual harassment in the workplace to the 1992 Recommendation on Childcare), which are not legally binding on Member States, but have expanded the notion of the equality of women workers. As a corollary to these policies, which governments were free to implement or not, the Commission began to mobilize the political participation and pressure of women’s organizations throughout Europe and developed transnational networks of feminist experts. With the Committee on Women’s Rights of the European Parliament, it encouraged the founding of the European Women’s Lobby in 1990. Like other social groups and political subjects dissatisfied with domestic policies, women’s organizations have been ready to seize this opportunity. The Commission’s Action Programmes on equal opportunities have recommended that Member States develop fairly comprehensive positive measures (training, flexible schedules and work life cycle, sharing of family responsibilities, childcare, and so forth) covering a wide range of aspects that negatively affect women in the labor market. In this way, the Commission has sensitized governments and employers to the benefits of flexible schedules and work life cycles that reconcile paid work with family responsibilities for both sexes. In addition, the Commission has cofinanced small-scale pilot programmes of positive action that have been primarily focused on vocational training, especially in nontraditional jobs and in new technology sectors. They were aimed at providing Member States with models and financial incentives. It was only around the mid-1990s that the cofinanced programmes on equal opportunities seemed to gain new potential, thanks to the new emphasis on the integration of women’s concerns into all global policymaking. In fact, this ‘mainstreaming’ strategy finally made the Structural Funds much more accessible to projects for women. However, the actual implementation of the Structural Funds programmes falls within the powers of national and regional governments, which have used the ‘mainstreaming’ strategy to further reduce public funds and incentives for positive action programmes. Indeed, except for Denmark, the member governments gave only weak support to positive action programmes and failed to develop an overall strategy for implementation, even before the new emphasis on ‘mainstreaming’ policy.4 Notwithstanding the enormous differences between Member States, some of which had activated equal opportunity policies before Community intervention, overall positive action and equal opportunity programmes have been scarce, limited in duration, and fragmentary. Programmes of equal opportunity and positive action in the workplace have been limited to

8

Mariagrazia Rossilli



small segments of workers with strong bargaining power, especially in the protected public sector.5 It is only in the area of professional training of the unemployed that a larger number of women have been directly affected. On the whole, the cofinanced programmes have served to foster the institutionalization of equal opportunity policies, especially in Mediterranean countries where they were started through European funding. The European Commission’s Action Programmes on Equal Opportunities— especially the first three (1982– 1995)— have pursued a modernizing project, which supported the entry of women into the labor market by improving their level of qualification. The goal was to use them as a key resource to create a flexible workforce and promote a more rational management of professional and family responsibilities. The European Commission’s equal opportunity policies have, in fact, suggested to the Member States Delors’ project of labor market reform, which was aimed at the general reduction of labor costs and stressed the role of women (and young people) as a resource for increasing the competitiveness of the European economy (CEC 1993). On the basis of these recommendations the Essen European Council (1994) tried to cope with massive unemployment, and particularly with female unemployment, which has always been higher and longer-lasting than that of men (in the EU in 1996 an average of 12.6 percent of women, in comparison to 9.2 percent of men, are unemployed). In this Summit, for the first time, the Heads of State and Governments of the Member States agreed on the priority of equal opportunity measures in employment policies. Since then the measures to promote the employability of women have gained a central place in the employment policies of all member governments, and women have become the targets of policies to promote flexible working arrangements, schedules, and contracts. By providing member governments with guidelines, the Commission’s Programmes on equal opportunities anticipated and fostered the current national employment policies. However, the European Commission has made many unsuccessful attempts to promote Community regulation of the flexibility of labor and a more efficient and less unequal division of family responsibilities between parents. Its draft Directives on the right to parental leave and the protection of workers with part-time or temporary contracts have been stuck in the Council’s decision-making process since the mid-1980s. It is only recently that the first two Framework Agreements were reached between the social partners and transformed into the Directives on parental leave

Introduction

9



and the protection of part-time workers.6 Hence, the approval of these Directives is primarily due to the emergence of a European corporatist polity— based on negotiations between employers’ and workers’ associations— which is prefigured in the Treaty of Maastricht (chapters 2 and 8). The Directive on parental leave (1996) leaves it up to governments to decide whether, and to what degree, parental leaves will be transferable from one parent to the other and the extent to which they will be paid. Therefore, it does not challenge the laws already in existence in most Member States, which have never provided incentives for paternal leave (except for Denmark and Sweden). The other Framework Agreement/ Directive (1997) prohibits discrimination against part-time workers, unless a different treatment of part-timers is legitimately justified by “ objective” reasons. The prohibition of discrimination, however, does not concern matters related to social security benefits. Moreover, the Directive excludes other types of atypical work from its scope. Thus, it by no means constitutes the final challenge to the intention of governments of not obstructing the deregulated flexibility of the labor market. The figures show the results of two decades of increased flexibility of labor markets (chapter 7). Part-time work and precarious jobs based on temporary or fixed-term contracts account for the bulk of new jobs created in the 1990s. Women and young people are the two groups that are overrepresented in these forms of work. In 1996, 17 percent of workers in the European Union were part-timers of whom 83 percent were women. When this non-standard work is not entirely deregulated, it is regulated by national laws that authorize various kinds of discrimination, such as lower pay, fewer statutory rights, lower or no social security contributions (Meulders and Plasman 1997). Naturally the women with the least bargaining power, and the lowest skills and status are the most damaged by this situation. Part-time and temporary work, which are the modern versions of traditional female underemployment, reinforce the economic dependence of these women workers and the sexual division of labor. For them, even formal equality tends to become only rights on paper, since the functioning of equality laws is fundamentally undermined. Inevitably, the flexibility of work and salaries of atypical workers poses a threat to the entire working population. The increased competition between men and women in the labor market (in 1996 the unemployment rate of men in the United Kingdom, Finland, and Sweden was higher than that of women) might have been one of the reasons for the innovation in the Amsterdam Treaty, which legitimates positive action and specific advantages for the underrepresented

10

Mariagrazia Rossilli



sex— not only for women. One of the aims of this provision is to encourage male employment in job sectors predominantly occupied by women, in part-time work, and other types of atypical jobs. On the whole, European equal opportunity policies have been part and parcel of EC modernizing action. On the one hand, they have contributed to creating new employment opportunities for women, especially in Southern countries, which were low in female labor-force participation. On the other hand, they have contributed to increasing sex/gender inequalities in terms of occupational segregation, wage differential, and social benefits. Indeed, overall EC action has weakened women’s social rights more seriously than men’s. With the weakening of welfare systems and restriction of the social rights of citizens to the working population, the gender hierarchy implicitly embedded in the very notion of worker weighs more and more heavily on the social citizenship of women, especially of those from the weakest social strata. While diminishing women’s social rights, European Community policies in the 1990s have sought to promote the participation of women in all decision making. The 1996 Recommendation on the balanced participation of women and men in the decision-making process (chapter 4) is in fact only the latest in a whole series of nonbinding acts by which the Community has mobilized and oriented female public opinion, especially in the countries of Southern Europe. These non-binding but rhetorically progressive acts focus not only on the promotion of women’s equal participation in electoral candidacy, but also on the promotion of their equal participation in elected assemblies and governing bodies, as well as in all decision-making positions in civil society. Thus, several distinct, and even contradictory, issues have been compounded and confused in this campaign. The promotion of women in electoral lists corrects flagrant electoral inequalities in the exercise of political rights and evident deficits in democracy, which should concern all citizens, male and female. The recommendation for equal numbers of women and men in elected assemblies (“ parity democracy” ) refers to a notion of representation of women as a presumed interest group, which in fact women are not. On the other hand, the promotion of women in decision-making positions in civil society only concerns the effectiveness of the principle of nondiscrimination within the professions concerned. In short, the view that the equal presence of women in all decisionmaking bodies is the necessary precondition for the progress of all women has tended to cement a “ female bloc” around the concerns of women members of political parties and of middle-class professional women. Thus,

Introduction

11



it has tended to influence the demand for democracy and power of women in a corporative sense. In this way, European institutions have responded to the pressure of European women’s lobbies and of women European and national parliamentarians, especially from Scandinavian countries. In conclusion, the European Parliament and the European Commission, in order to foster their policies, power, and legitimacy, have been responsive to some women’s demands. In the European institutions, the lobbying of women found a political and symbolic space where it could influence less favorable national policies and give visibility to certain demands (sexual harassment, childcare) ignored in their countries, and, most important of all, to the demand for equality in the exercise of political rights. On the other hand, through European feminist networks, the European institutions have influenced the agenda of women politicians in the Member States and the different national political cultures. Despite this, as we have seen, the power of European institutions in the matter of women’s equality has not been less contested than in other fields. The strength of the lobbying of European women cannot be evaluated separately from that. Faced with the convergence that has occurred between the defense of national sovereignty on the part of the governments and the resistance to any European social regulation on the part of European employers’ organizations, the lobbying of women has been able to exert little influence on the most crucial economic and social questions. As we have seen, EC policies have contributed to advancing the formal equality of women employed in standard work and to creating employment opportunities, especially for women in Southern Europe. The Directives of the 1970s have provided women workers, particularly in the United Kingdom, with some legal means of resistance against the deregulation of the labor markets (Hoskyns 1996). At the same time, EC policies have been a threat to the rights and equality of Scandinavian women, who have a better standard than that mandated by Community legislation. Although there are still considerable differences among Member States, to a large extent, EC intervention has made national legislation converge toward a common standard, and has caused the social conditions of women throughout Europe to follow a similar pattern. It has also contributed to establishing some sense of a European identity of women and of the Europeanization of gender conflicts. Difficulties Facing the Social Democratic European Union At the end of the twentieth century the EU has a Social Democratic color (only Spain and Ireland have center-right governments).7 The short-term

12

Mariagrazia Rossilli



future of the EU tends to coincide with that of the new Social Democracy, which has emerged in the 1990s, as a result of a compromise with neoliberal strategy based on repudiation of the Keynesian welfare state and the adoption of the market efficiency imperative. Strengthened coordination of the economic policies of the Member States and efficient Community action to promote employment are the test of Social Democratic governments. The slowing down of European economic growth, and the threat of economic recession have dramatically exacerbated the problem of persistent mass unemployment which is facing all the Member States. Appropriate responses to these economic challenges are needed at the Union level. No individual state can successfully face these challenges and combat mass unemployment on its own. Thanks to the social democratic governments, the proposal of a Pact for Employment, which the European Commission had unsuccessfully attempted to put forward at the beginning of negotiations on the Amsterdam Treaty, finally gained a place on the European political agenda. So far, however, member governments have not been able to agree on a European Employment Pact, on common objectives in this matter, or on the economic policy to achieve them. The problem of how to make economic growth and employment more dynamic divides European social democracies. On the one hand, the British New Labour government simply holds on to economic policy based on the supply-side approach within the framework of the Luxembourg strategy, which has further increased intra-EU competition for lower company taxes. On the other hand, under the threat of economic recession, even some non-Keynesian economists are beginning to think that such an economic policy is not sufficient to foster economic growth and compensate for the high rate of unemployment, and so must be accompanied by policies that increase public spending and investment. But how can the Member States, which lost all sovereignty over their monetary policy, promote public investment without jeopardizing the goal of the balance of public finances and incurring the sanctions set down in the Stability and Growth Pact? The German government, with the support of the French and Italian governments, proposed to accelerate the coordination of the fiscal policies of Member States in order to combat unfair tax competition and promote a coordinate policy favorable to public investment and economic growth (development of TransEuropean Networks). However, the British government, supported by the center-right governments, announced its veto on the coordination of fiscal policies, as that would strike a further blow to national sovereignty.

Introduction

13



As a result of this deadlock, the Vienna European Council (December 1998) was only able to reach an agreement on the commitment to pursue the goal of a future European Employment Pact within the framework agreed upon at the Luxembourg Jobs Summit. Although the Luxembourg strategy is clearly insufficient to combat mass unemployment, in the shortterm future any European Employment Pact will either never come about, or else will simply be based on a strengthened coordination of the national policies within the framework of this strategy.8 A Community action to promote employment remains outside the foreseeable scenario. Although neoliberal strategy currently seems to have reached a point of exhaustion, efforts to push EU integration forward on any basis other than the neoliberal model set down in the Maastricht Treaty and the Stability Pact inevitably run into enormous difficulty. Within the Maastricht framework, as well as in the institutional framework designed in the Amsterdam Treaty, European social policy will not take an alternative road. Consequently, there is an urgent need to push the process of institutional reforms forward, before the next round of enlargement takes place. In fact, despite Euro-skepticism, there is quite a broad consensus that the completion of the European constitutional framework and further Europeanization of decision making are the only viable bases for any revitalization of democracy. Further Europeanization and the democratization of decision making seem to be the only way to promote a reconstructive process of redistributive social policies, social rights, and protective mechanisms on a supranational level. On the contrary, given the irreversible process of integration, the Euroskeptical vision of Europe as a partnership of nations maintains all the harmful effects of intergovernmental decision making and of the disequilibrium between underdeveloped supranational political decision making, on the one hand, and greater market integration and supranational ECB, on the other. The direct democratic participation of the European Parliament is the only way to achieve far-reaching institutional reforms which the Intergovernmental Conferences have been unable to realize. As the European Parliament has long argued, and the precarious compromise of the Amsterdam Treaty demonstrates, the present stage of integration calls for a new democratic and more efficient reform process. The European Parliament’s proposals to strengthen the democracy of EU decision making— further extension of the European Parliament’s powers, the European Commission’s direct responsibility to European Parliament, and the generalized use of qualified majority voting in the Council— constitute a starting point for the next phase of institutional reform. Hence,

14

Mariagrazia Rossilli



the proposal for a broader notion of Union citizenship should be based on a EU catalogue of fundamental rights including social rights.9 However, a new definition of Union citizenship is also needed. European citizenship should be based on a new definition of the conditions for its acquisition and loss, so that it no longer depends exclusively on the possession of Member State nationality, but entails a direct relationship between the Union and its citizens. This, in turn, would create more favorable conditions for building up a common European identity of citizens (Habermas 1996). What European Citizenship for Women?10 During the Intergovernmental Conference, which led to the Amsterdam Treaty, the women European parliamentarians, members of the European Trade Union Confederation (ETUC), and the European Women’s Lobby (EWL) concentrated their efforts on placing gender at the center of the construction of European citizenship and democracy. Their goal was to establish within the Treaty a notion of European citizenship that would be able to overcome weaknesses and defects in women’s experience of national citizenship. The results were disappointing, however. No success rewarded their principal demands, and particularly their attempt to revitalize positive action policies, which was their main concern (CCEO 1997; ETUC 1996; EWL 1997). Therefore, their demands await the next round of institutional reforms. The feminist critique of the antidiscriminatory approach, which includes women into citizenship on the basis of their assimilation with other discriminated social or racial groups, created the basis for a new approach to women’s rights. A radically new paradigm was formulated in the 1990s by the experts of the Council of Europe and chiefly by the lawyer Eliane Vogel-Polsky (chapter 4). According to this paradigm, the Treaty should guarantee a specific and autonomous fundamental right to equality of men and women. This guarantee would make it possible to overcome the limitations of the merely antidiscriminatory approach founded on the assumption of a universal, sex-neutral subject of the social contract. It would explicitly recognize the two sexed legal subjects, overcome the constraints of formal equality, and guarantee substantive equality of women and men in all areas. In Vogel-Polsky’s conception, introducing sexual identity into the definition of the legal person would require an equal status for women and men (parity) within the domain of the law. Parity, in turn, would obligate the public authorities “ to guarantee equal participation of women and men in political, social, administrative and judicial institutions.” Im-

Introduction

15



mediately obligatory rules should concretely guarantee the balanced sharing of power on a basis of parity in the work of institutions of the three State powers. Parity should be integrated in all places of political decision making, and the methods of appointing representatives of gendered citizens and electoral rules should conform to principles of “ parity democracy”— that is of a gendered democracy.11 Even leaving aside the controversial issue of group-differentiated citizenship to which this model refers, Vogel-Polsky’s theory raises serious objections.12 As she clarifies, the theoretical foundation of this paradigm is based on the assumption that “ because the construction of a person’s social identity and place in the economic, political, social and civil order is based on a biological difference of sex, it is necessary to insert gender into the definition of the legal subject” (emphasis added). Such an assumption of biological essentialism contradicts the key feature of the modern social contract, which is its conventional and negotiated character. The introduction of sexual identity into the definition of the legal subject would inevitably imply the institutionalization of female “ natural” functions and sexual role. It would imply a backward trend toward a legally imposed sexual identity that would jeopardize the progress of the autonomy of women and the greater individualization that they have achieved. Neither women parliamentarians and trade unionists nor the EWL shared this essentialist conception of women’s citizenship or the proposition of a gendered democracy. However, they all demanded that the Treaty should include, along with a separate clause prohibiting sex discrimination, the autonomous right to equality of the sexes, which is a specific and wholly separate right to the substantive equality of women and men. In their view, the explicit recognition of the gendered subjects of the social contract would establish a solid legal foundation for adopting positive measures in favor of women in all areas. It would legitimate broad and general derogations to formal equality, and make it possible to overcome the limits that positive action and quotas have encountered in the prohibition of sex discrimination. EWL went as far as to demand a specific right of women to positive action, which would provide advantages in all areas. In this sense positive action would be a redistributive measure granted to women as gendered citizens, no longer as one of the disadvantaged and discriminated groups. From this standpoint, the special right of women to positive action would be dangerously close to protective legislation measures that based the justification for making a legal distinction on women’s sexual difference. As general and broad derogations to formal equality,

16

Mariagrazia Rossilli



these positive measures would end up maintaining, and even strengthening, the existing notion of female and its structural dimension as a handicap. On the contrary, the modification of Article 13 of the Amsterdam Treaty, which prohibits sex discrimination along with other types of discrimination, could better serve the cause of making the principle of equality more effective and correcting de facto sex/gender inequalities. The Article should be substituted by a self-executing and enlarged provision authorizing measures in all areas to remove obstacles that impair the effective exercise of the rights of women and other “ discriminated groups.” This could breathe some life into positive action strategy. Indeed, positive action policies are inherently limited, at least because they are constrained between the prohibition of sex discrimination and the harmful consequences for women of too broad and general derogations to formal equality. They are all the more limited in a period when the resources (jobs) to be redistributed are scarce. Above all they are intrinsically inadequate to counteract the causes that produce and reproduce sex/gender difference as a handicap for women. In fact, positive action strategy is founded on a redistributive notion of justice and equality, which is inherently oppressive toward women’s gender difference, as well as toward the different viewpoints and values of other “ disadvantaged groups” (Young 1989 and 1990). These differences are codified only as disabilities and are, therefore, reproduced as such. Moreover, given its redistributive nature, positive action strategy addresses only the disadvantageous effects, not their structural causes. However, distributive justice, despite its shortcomings, remains an indispensable remedy for the most blatant inequalities that are produced in existing social relations. In this sense, positive action policies have been and still are useful, providing women with better conditions for renegotiating the social contract. The guarantee of women’s fundamental reproductive rights and full reproductive freedom lies at the basis of the renegotiation of their citizenship. These lay the firm foundation for the enjoyment of their right to selfdetermination as individuals, and are essential to the recognition of women as fully autonomous citizens. Hence, the catalogue of fundamental rights guaranteed by the EU should incorporate the reproductive rights of women. In this way, a specific competence would be established to make several national abortion laws more favorable to women (national legislation varies from Irish law that prohibits abortion to Danish and Swedish laws that permit abortion at the woman’s request in the first three months). This would particularly help Irish women to repeal the legal prohibition of abortion which the EU has formally recognized to date.13 For these rea-

Introduction

17



sons, it sounds paradoxical that women EP members and the EWL, while championing the cause of a less gender-blind European citizenship, ignored the issue of women’s reproductive rights. Only women parliamentarians members of the Party of European Socialists included these rights in their program. With respect to social citizenship, all women involved in European politics concentrated their efforts on the demands for the individualization of social security rights and integration of the Social Charter into the body of the Treaty. These would have been very important achievements, but they did not succeed. However, as we have seen, the Social Charter covers only the social rights of the working population, but does not include a basic standard of the social rights of citizens. Therefore, it is all the more defective from the gender perspective, given the weaker position of women in the labor market. Moreover, even if the Treaty guaranteed the fundamental social rights of citizens— including access to social care services and the protection of pregnant women and women who have given birth— this would still be insufficient to remedy women’s inequalities. Their social rights would remain impaired by the gender hierarchy and the male standard embedded in the labor market, work organization, and labor laws. This gives rise to the current gendered models of work flexibility, and the identification of women as part-timers and men as a mobile workforce available for irregular additional hours of work. Instead, a general reduction of the normal working week would ensure “ a precondition for greater gender equality, setting the conditions for which there can be a more equal sharing in the household as well as in work” (OECD 1994; see chapter 7). However, although the general reduction of working time would encourage an equal standard of work and take into account both women’s and men’s family life, it has not found a general consensus among the women involved in European politics. As a matter of fact, many of them favor part-time work as a type of work more suitable to women, which would better fit their needs and desires. As a result, in the 1990s, when the general reduction of the working week might have helped to limit the spread of part-time work, women’s claims have not decisively focused on it at a European level. On the whole, the women’s proposals for the revision of the Treaties underestimated the relevance that the deconstruction of the gender hierarchy woven into labor laws and work organization would have for the rights of women workers. On the other hand, there has rightly been much emphasis on the equal participation of women in all political decision making. In fact, the underrepresentation of women in electoral lists represents the most flagrant

18

Mariagrazia Rossilli



injustice that dramatically aggravates the EU “ democratic deficit” and the general deterioration of democracy. Women Euro-parliamentarians, EWL, and many Euro-feminist networks have sought to constitutionalize the principle of “ parity democracy” in the Treaty. In their view, which Vogel-Polsky vehemently criticizes as emancipatory, “ parity democracy” refers to the equal political representation of women in all electoral assemblies and governing bodies that should be achieved by means of quotas. It does not refer to the political representation of gendered citizens, but to a numerically balanced participation of women in all political decision making based on their being the majority of citizens. Thus, the attempt to include the principle of “ parity democracy” in the Treaty confirms the widespread tendency among European women politicians and Euro-feminists to consider women as an interest group claiming its own political representation.14 This view completely overlooks the fact that women are not a universal category any more than men are. Not only do women not universally share the same social interests, but women’s perspectives also inevitably vary according to political party, so that there is no single woman’s perspective on women’s issues (chapter 5). Consequently, even the very widespread argument among Euro-feminists that increasing the representation of women will by itself ensure political changes favorable to all women and alter the masculine character of political institutions lacks any solid foundation. Empirical research does not univocally confirm this thesis. In addition, neither the argument that women are not an interest group, nor the one that biological essentialism conflicts with the concept of modern democracy, can be theoretically avoided. The argument of political representation of women as a group has partly distorted the political debate as well as attention from the various cultural, social and institutional factors (electoral procedures and systems of representation, and so forth) that have indirect negative effects on the actual exercise of women’s political rights (Zincone 1992). However, the most immediate factor that impairs the effective exercise of these rights lies in the way political parties select candidates. This, in turn, depends on male gendered rules, type of organization, and structure of political parties, on the “ occupation” of power positions by corps of male professional politicians or bureaucrats, on the male-patterned system of political careers, and so forth (Lovenduski and Norris 1993). All this creates obstacles to the candidacy of women. Therefore, effective completion of women’s political citizenship is primarily a matter of removing de facto discriminations in the way political parties select candidates. As the em-

Introduction

19



pirical evidence in Scandinavian countries strongly suggests, when a quota system is used to promote the electoral candidacy of women, the male monopoly is undermined, and women are also elected in large numbers in the representative assemblies (chapter 5). Therefore, a norm should be introduced at the European level obliging Member States to apply a quota system in all electoral lists for women and other groups (minority groups, migrants) that are also disadvantaged in the exercise of their political rights. The legal difficulties that such binding provisions have met to date must not prevent us from continuing the battle for an enlarged democracy. This constitutes only one of the conditions for pursuing policies able to modify the deeply rooted masculine character of political institutions. Political action of women able to conjoin, in the formal and informal arenas of European and national politics, various practices of gender conflict to gender-neutral political representation seems the only way to move beyond the mere inclusion of women within the current representation system. This also seems the only viable way to change the complex sociocultural factors that exert indirect negative influence on the exercise of women’s political rights. In conclusion, women’s new proposals— partly different from those that have gained favor so far— are needed to push forward the construction of European citizenship and democracy from the gender perspective. This requires a search for different political models. As a well-established feminist legal critique has argued, both the existing concept of equality and the idea of women’s special rights refer to the male pattern as the norm.15 The deconstruction of the male standard and gender hierarchy embedded in the legal norms and practices would provide powerful tools for renegotiating the social contract. This would imply a paradigm shift from the opposition between gender equality and difference to a different notion of equality, which, far from being patterned on the male standard, would take into account different needs and viewpoints that women bring into the society (Bacchi 1990). A different notion of equality would result from the challenge to the male standard and the social relationships that construct it, through the interdependence of the public and private spheres. Thus the inherent constraints of the “ male life pattern” limiting even men’s individual freedom would also be highlighted. The perspective of the completion of institutional reforms calls for developing the debate further. Above all, it calls for a more democratic reform process where various voices of women may be heard and effectively contribute to shaping the future Europe.

20

Mariagrazia Rossilli



Themes of the Book The purpose of this collection is to provide a variety of viewpoints for analyzing developments in EU policy. Although the contributors do not always agree in their evaluation of EU policy and future prospects, they are all committed to proposing new policies to challenge the current situation. Both Ostner’s and Hoskyns’ chapters trace the overall developments of EC gender policies. From their different perspectives, they examine changes that have occurred over the last decades. It is against this historical background, as against the background of the entire EU history, that Bergamaschi reads the attempts of women trade unionists to help forward women’s concern within the European ‘social dialogue’ between employers’ and workers’ associations. Sohrab, Gregory, Kofman, and Sales, instead, examine in detail particular aspects of EU policies and their impact at the national level. While in matters of equal treatment in social security and in the condemnation of sexual harassment EC legislation has played an innovative and progressive role, EU immigration policies have applied to non-EU migrants the least liberal interpretation of international obligations, with the most devastating effects for women. Bettio, Rubery, and Smith examine in a comparative perspective how the extent and form of flexible employment vary depending upon both the system of gender relations and the wider societal system in the different member countries. Lovenduski also writes in a comparative perspective. She describes different patterns of the political representation of women in western European politics and the impact of quota systems in rebalancing the underrepresentation of women. On the contrary, Vogel-Polsky argues with the strategy of quotas that would contain oppressive potentialities for women. Finally, Wijers examines the European policies on trafficking in women both in a historical perspective and in the context of current international developments. She analyzes EU strategies and the reasons that they fail to deal effectively with trafficking in women, which is dramatically increasing. She challenges these strategies from the standpoint that has become known as the “ Dutch position.” The gist of this position is that, whereas trafficking and forced prostitution constitute a violation of women’s human rights because of their inherent coercion, prostitution per se does not, and it should be recognized and protected as legitimate work. Al-

Introduction

21



though this is a minority opinion among Euro-feminists, which might sound shocking to many, it sheds light on various aspects of trafficking in women, which are completely ignored within the current restrictive regulatory practices enacted by several member governments, with the support of numerous Non-Governmental Organizations of women.

Notes

1.

The name European Union was adopted by the Treaty on European Union (TEU) to cover not only the activities of the European Community but also intergovernmental cooperation in justice and home affairs and in foreign and security policy. This term has been commonly used since November 1993 (when the Maastricht Treaty came into force) as the umbrella term for all European initiatives and institutions.

2.

In order to participate in the single currency, the Member States must satisfy the convergence conditions of the Maastricht Treaty. These conditions concern the budget deficit, which may not exceed 3 percent of the Gross National Product (GNP), the accumulated debts, which may not exceed 60 percent of GNP, and specific targets on inflation and monetary stability.

3.

The codecision procedure makes it possible for the European Parliament to adopt legislative acts in conjunction with the Council of Ministers.

4.

Sweden and Finland, which have strongly supported these policies, became members of the EU in 1995.

5.

Not only have public incentives been scarce, but private companies have been unwilling to activate programmes that did not conform to their strategies of more efficient human resource management. See CEC 1992.

6.

This term is used at the Community level to designate trade union and employers’ representatives.

7.

Fifteen states (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and United Kingdom) are currently members of the European Union.

8.

In June 1999, while this book was in the process of being printed, the Cologne Summit launched a Pact for Employment which dovetails into the strategy already at work and attributes a new role to the social partners.

9.

European Parliament’s draft constitution of 1994. See also EP 1993.

10.

This part draws on the article published in the Italian journal Europa Europe. See Rossilli 1997.

11.

In Vogel-Polsky’s use, the terms sex and gender overlap.

12.

Iris Marion Young has conceptualized citizenship in terms of group rights, which would imply separate political representation and procedural guarantees. See Young 1989 and 1990.

Introduction

23

 13.

Elman (1996a) analyzes the lack of space in the Treaties for sexual issues such as reproductive rights and abortion.

14.

For a detailed criticism of both conceptions of “ parity democracy,” see Varikas 1995 and 1997.

15.

This approach was initiated in the mid-1980s by Catharine MacKinnon. See MacKinnon 1987.

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Chapter 2

 From Equal Pay to Equal Employability: Four Decades of European Gender Policies Ilona Ostner

Introduction From its outset, the EU or—as it was called at first—the European Economic Community has been concerned with creating a common market by removing barriers toward the mobility of goods and labor, capital and services, while still enhancing each Member State’s competitiveness. As is well known, gender policies slowly emerged as part of the Community’s social dimension. During the drafting process of the Treaty of Rome, France had argued that her rule of equal pay for equal work constituted social protection which, in turn, had to be harmonized in order to make up for related competitive disadvantages. As a result, article 119 was inserted into the Treaty section on social policy. Henceforth, each Member State was to ensure and maintain the principle that men and women should receive equal pay for equal work. Article 119 eased subsequent women-friendly legislation when during the 1970s the Court and the Commission began to play a more active role in promoting equal treatment of women in employment and various labor market related domains, including social security and employment-linked social provisions. Treaty amendments and revisions brought by the Single European Act and Maastricht Treaty gave both the Commission and the EJC leeway for new legislative initiatives. They strengthened the regulatory authority of the EU institutions. The introduction of qualified majority voting in some social policy matters—to be decided by the Council of Ministers—facilitated package deals between Member States. Women’s

26

Ilona Ostner



issues have frequently been pushed through as elements of such deals (Hoskyns 1996). Owing to the altered rules of politics and legislation, Member States increasingly feared the erosion of their sovereignty, although the principle of ‘subsidiarity’ in social and cultural matters had been introduced into the Maastricht Treaty. The principle rules that only issues that cannot be properly dealt with at the national level may be handled at the supranational agenda. The rule excludes, among other objectives, social policy from the supranational policy agenda. In order to reach the EU level, social policy issues have to be redefined in terms of barriers to workers’ mobility and employability (‘negative’ freedom or ‘negative’ rights). By the early 1990s, EU equal treatment policies had seemingly been exhausted. This is not to say that women’s issues disappeared from the political agenda. However, they have been framed differently— as part and parcel of the combined will of all Member States to increase the employability of those capable of working, regardless of gender and age— as was evident in the 1997 Amsterdam Treaty and the subsequent Luxembourg Employment Summit. Cards have been reshuffled, policy logics shifted from passive to active measures, and the role of the social partners in designing framework agreements strengthened. Decommodification entitlements, for example, to sickness or unemployment benefits, which allow workers to exit employment in cases of average risks, have been replaced by recommodification of those capable of working but living on benefits. The following explores the transformation of EU equality policies and recalls the role of the European Court of Justice in this process as well as recent challenges to the welfare states (Ostner and Lewis 1995; Ostner 1996). It draws upon the distinctions between ‘negative’ versus ‘positive’ integration (Scharpf 1996) and ‘regulatory’ versus ‘redistributive’ policies (Majone 1996a; 1996b) in order to define the proper place of EU social policies. I argue that gender policies have developed within the framework of both negative integration and regulation policies designed to remove market barriers or to increase marketization. According to Paul Pierson (1996) it is the very set of new interests and attitudes that the welfare state created that now backs, or even promotes, its restructuring. As is well known, poverty or unemployment traps, various forms of moral hazard or free-riding, and vested rights have contributed to welfare state inefficiencies. On the other hand, by attaching full social entitlements to employment, the welfare state has also encouraged individual labor market participation. It has, thereby, further individual-

From Equal Pay to Equal Employability

27



ized family members, especially women, who have entered employment in increasing numbers and have not stopped doing so in the face of shrinking full-time and well-paid work prospects. The new welfare rhetoric of options and individual choices, contract instead of status, has increasingly corresponded to the attitudes of citizens, especially of those younger or better-off. The concluding section focuses on challenges to national and European social policies that have boosted the idea of employability and prompted a new set of ‘employment friendly’ regulations. Women’s Issues as Element of ‘Negative’ Integration Women’s issues are part of the EU social dimension. Social policies have flourished in the process of European integration only as far as they have fitted regulatory policies of negative integration in contrast to the redistributive ones of positive integration. ‘Negative’ integration entails supranational measures that pertain to the completion of a common or single market, to the removal of barriers toward it and to the enhancement of the mobility of goods and labor, capital and services within this market. Alluding to freedom from all sorts of obstacles to free endeavor, ‘negative’ measures are by definition minimalist. EU institutions engage in regulatory practices only when and as far as market failures exist. Typically, market failures refer to negative externalities or incomplete information. They may also occur in cases of past discrimination that hinder equal starting conditions. Regulatory measures aim at coming to terms with market failures. They intervene only marginally and do not require redistribution. Restricted as they are, regulatory policies can do without much democratic legitimation. Member States delegate regulatory competencies, when they do not trust bilateral agreements or when they assume that EU institutions can better defy political pressures or lobbying from vested interests. The ECJ and the Commission were in fact established in “ neutral distance” to Member States’ particularistic interests. Therefore, they have been capable of achieving a high profile as political entrepreneurs issuing a plethora of regulations especially in areas which, at first sight, only indirectly affect a Member State’s political leeway. Gender issues have gained from this entrepreneurship. While the supranational laws have enhanced ‘negative’ integration, a European welfare state has not emerged. Its rise will depend on ‘positive’ policies that constantly redefine the scope or limits of the market and actively mold the EU citizens’ living conditions. A supranational social

28

Ilona Ostner



policy has hardly existed. The complex voting rules as well as national particularisms and the costs of redistributive measures to be paid by the Member States would rule out any launching of a European welfare state. Therefore, it has not made any headway so far. The following interprets equality policies as part and parcel of ‘negative’ integration. Article 119, Corresponding Directives and Their Impact Article 119 ruled that each Member State ensured and maintained the application of the principle that men and women received equal pay for equal work. For the purpose of this article, pay was defined as the ordinary basic or minimum wage or salary and any other compensation, whether in cash or in kind, which the worker received, directly or indirectly, in respect of his/her employment from his/her employer. As late as the 1970s, backed by the social movements, including the women’s movement, and with the rise of Member States’ left governments, Article 119 was fully implemented and related social policy Directives were drafted. In 1975, the Council passed the Equal Pay Directive 75/117, which defined both the meaning of pay and that of equal work— hitherto narrowly interpreted as ‘same work’— more extensively, thus allowing for broader comparisons across jobs and the inclusion of comparable work. 1 It also required job classification systems for wage determination. The various ECJ rulings subsequently extended the meaning of discrimination from direct to indirect forms. The 1976 Directive 76/207 broadened the principle of equal treatment for men and women to access to employment (including promotion), vocational training, and working conditions and ruled out all forms of direct and indirect discrimination on grounds of sex, particularly by reference to marital or family status.2 It outlawed legal and administrative practices contradicting the equal treatment practices, even if approved by collective bargaining agreements or individual employment contracts. However, section 4 of the Directive allowed for positive action measures in order to fight de facto inequalities which restricted women’s opportunities for equal treatment. In short, it approved of reverse discrimination. Directive 79/7 on Equal Treatment in Matters of Social Security,3 Directive 86/378 on Equal Treatment in Occupational Security Schemes, and Directive 86/313 concerning Equal Treatment in activities such as agriculture and in self-employment4 sought to define common rules for equal treatment of men and women in various social security schemes whether statutory or occupational— sickness, invalidity, old age, accidents at work, occupational diseases, and unemployment.

From Equal Pay to Equal Employability

29



These Directives empowered both the Commission and EJC to apply a significantly extended meaning of work, pay, and discrimination and to make rules and interpretations binding for Member States, as seen in two notorious ECJ decisions. Bilka, a German department store, excluded part-timers, mainly women, from its occupational pension scheme.5 It justified the discrimination by a need to keep down the rate of part-timers. The ECJ maintained that wage policies might be used to restrict parttime employment, but only if this measure addressed a real need of the firm and that the chosen policy served such a need. Bilka failed to prove. In Rinner-Kühn v. FWW Spezial-Gebäudereinigung, a commercial cleaning company denied for those who worked less than ten hours per week— which was significantly below the statutory threshold for benefits— sickness payments.6 The Court defined sickness benefits as pay regardless of hours worked and ruled the denial to be indirect discrimination. Germany, which had set the standard, failed to provide good reasons for this discrimination. Equal Treatment: Two-edged Sword and One-dimensional Logic Thanks to the Court ruling, marginal workers have been entitled to sickness benefits. At the same time, the entitlement has been generally under attack, eligibility rules getting tightened in many Member States. Apparently, any generalization of a benefit or an advantage provokes its reverse— either its retrenchment or its abolition. Two rules to this exist. Where women were previously treated favorably, they must now work longer or at unfavorable hours like men, as was the case with retirement ages or night shifts, regardless of whether they will ever manage to reduce domestic chores to a male level and, therefore, match on average the male standard. On the other hand, although Community principles stress that discrimination should not be fought by eliminating better provisions and thus lead to an equalization toward the meaner ones, governments have eagerly used the equalization principle to justify cutbacks— for example, in the case of ‘husbands only’ benefits. A second glance also reveals that the Directives did not abolish discrimination. They only require good reasons for discriminatory practices and a minimum-means test as evident in the two cases mentioned above. Questions to be asked are: Is the discriminatory measure an effective means to a justifiable end? And will the chosen practice least conflict with EU regulations and aims? As more men are working the same jobs as women, and as male and female working conditions and careers are

30

Ilona Ostner



becoming more similar, it will be harder to find proper male comparators to prove indirect discrimination of women. Discrimination does not only exist as a legitimate measure used by firms pursuing their goals. The Directives, too, allow for discriminatory practices, be it with regard to pregnant women and mothers of newborn children, or with regard to recommended positive actions to remove obstacles to equal starting conditions. As already said, good reasons must be given and means to goals must be moderate. While providing reasons for discrimination, the Court distinguishes between the purpose of a discriminatory measure and its effects, for instance, in Rinner-Kühn v. FWW. Firms’ activities, that were not initially intended to discriminate, may prompt distributional effects that are negative for women. Men and women may be unequally affected by allocative decisions. Such inequality of results is justified. In Kalanke v. Bremen, the Court drew upon the dual distinction between discriminatory purpose versus effects, equality of opportunities versus results.7 It maintained that a national law, which automatically and unconditionally granted women preferential treatment, overshot the promotion of equal opportunities. Moreover, by ruling that all positions must be given to men and women equally, the law replaced equality of opportunity— as laid down in Article 2 (4) of Directive 76/206— by equality of results. In Kalanke v. Bremen, the ECJ stressed the view that jobs were scarce goods whose distribution followed rules that could not be prescribed by law. Legislators only safeguarded the principle of equal access. Reverse discrimination was defined as a measure that promoted equal opportunities, but, while helping those who started the race with unequal abilities, did not pertain to equality of results (see also chapter 4). The various Court rulings have been well in tune with the logic of negative integration and regulatory policies. They have aimed at liberating markets and improving actors’ market opportunities as well as their bargaining power; they have not intended to correct distributional effects, which result from proper market behavior. The latter would necessitate democratic legitimation. Lacking democratic legitimacy, the EU has concentrated on social regulation, including regulating women’s market opportunities, and refrained from social policy. The Market Bias of Equal Treatment The supranational level has traditionally engaged in one single goal: the enhancement of everybody’s equal access to the market and market liberties. It has acknowledged, though, that wage earners have less bargaining

From Equal Pay to Equal Employability

31



power than their employers. The EU legislation has taken sides with wage dependents by securing fair employment conditions, also in times of average workers’ risks. Treating people alike as average working or workseeking people proved difficult in cases where a comparator— similarly situated in the market— was missing. As is well known, conflicts over equal versus special treatment arose concerning the Directive proposal on “ the protection of pregnant workers and workers who have recently given birth or are breastfeeding.” Because there was no male comparator, a male “ being pregnant” and “ giving birth,” the issue did not fit the requirements of Article 119. The Directive finally passed as a health and safety issue in 1992.8 The gender-neutral wording— protection of workers not mothers— facilitated the passage of the Directive under Article 118 EEC concerning the improvement of working conditions, workers’ health and safety. Consequently, benefits were set at levels for sickness pay in the respective Member States. Commission and Court have always stressed the view that— barriers toward market access and activities removed and all other things being equal— decisions on jobs and careers are made according to personal preferences. In Bilka the Court maintained that Article 119 did not oblige employers to take into account employees’ personal circumstances when drafting pension schemes. This stance was repeated in Johnson v. Chief Adjudication Officer in 1991.9 Ms. Johnson left paid work to care for her baby. She was not able to reenter employment because of invalidity and claimed an invalidity pension. The British court turned her down, arguing first that she relinquished employment voluntarily and second that the rule of equal treatment in matters of social security applied only to those working or actively seeking a job. When becoming invalid, Ms. Johnson, however, belonged to neither category. Obviously, the Court abstained from intervening into what it perceived to be merely family issues. Its decision on Johnson mirrors earlier ones. In 1984, dealing with gender-specific maternal leave, the Court stated that it was not its business to settle questions concerning the division of responsibilities between parents.10 Women’s issues, which could not be couched in market or employment terms, had to find loopholes to get onto the supranational agenda, as was the case with abortion. According to Treaty article 60, services can be freely advertised in Member States, as well as across borders. Abortion is a service. Those who offer it are allowed to notify to a transnational public. Ireland denied a student organization to inform about abortion facilities in the UK. The Irish court maintained that abortion

32

Ilona Ostner



services lacked a market-employment nexus; moreover, unrestricted availability of information violated the right to life. Amoral actions tolerated in one Member State, the court continued, did not justify their elevation to a community issue as defined by the Treaty. The student group turned to the ECJ for support. The European Court first rejected the moral arguments put forward by the Irish judges regardless of their soundness. According to EU law, abortion constituted a service and was to be treated like other services. However, the student organization lacked business ties to the abortion services in the UK. It could not act as a mediator and advertise British services. Outlawing information did not violate European law. The students lost their case, but the arguments advanced by the ECJ also indicated how to overcome the stalemate successfully (Phelan 1992). Institutional Inheritance, Traditions and Varieties of Feminism The Irish case also illustrates the extent to which social policy issues— whether and how they are perceived and dealt with— depend on Member States’ cultural and institutional inheritance. Some Member States delegate employment-related questions to the social partners. Some rely on social insurance, others on tax-financed basic provisions, often supplemented by earnings-related schemes. Some are heavily biased toward transfers, others provide services to an equal or even a much higher extent. Family policies can be implicit or explicit, sometimes they do not exist at all. The institutional setting defines which issues will reach the public agenda. Institutional inheritance and corresponding points of view also decide how national women lobbyists will act on the supranational level. Hoskyns (1996) reports that conflicts arose more than once during the late seventies and early eighties concerning issues such as equal pay, motherhood, or abortion among the representatives in the various working groups on women’s rights or in the European parliament. Some members of the Advisory Committee on Equal Opportunities wanted abortion removed from the agenda because, as was argued, abortion was a moral, not a “ woman only,” problem. Others warned that the abortion issue took away time and energy from less controversial topics. Women disagreed on the proper place and value of motherhood. The German member of the European parliament criticized the focus on pay and equal pay issues as too narrow to grasp the complexity of women’s lives and con-

From Equal Pay to Equal Employability

33



cern. The rejection of a restrictive interpretation of equality accommodated women who fostered social— in contrast to individualistic— feminism. Redefining Limits of Supranational Intervention During the early 1990s, political scientists like Scharpf (1996) ascertained that negative integration had fully attained its goal of removing obstacles to the free mobility of goods and labor, capital and services. Meanwhile, other equally legitimate goals had been neglected. A positive counterweight to mere market-liberating integration was beyond the reach of the supranational level. Therefore, as many argued, Member States’ political choices and decisions had to be strengthened and a proper balance redefined between supranational and national competencies. Nobody doubted that the removal of market barriers was best dealt with at the supranational level; ex post corrections of market results, however, should remain within the national jurisdiction. The Maastricht Treaty had inserted the principle of ‘subsidiarity’ in its article 3b. It stated whether and how the supranational level was legitimized to set rules and standards and, thereby, also defined the limits of supranational intervention in cases that could be dealt with on the national level. Many considered this principle a weak weapon for restricting the ECJ and the Commission, however. Member States increasingly insisted that supranational activities had to be better surveyed with regard to necessity of proposals or measures, means, and costs. In particular, the Paletta11 and the Barber12 cases and their costly consequences had anguished Member States. In Paletta, the ECJ obliged the German employer to acknowledge the certificates that an Italian doctor had provided year after year and that entitled the members of a family of four to claim sickness payments for six weeks immediately after their holidays, which they spent in Italy, had ended. In Barber, the Court referred to Directive 378/86 which extended equal treatment of men and women to occupational pension schemes. Consequently, it defined British occupational pensions broadly as pay according to article 119 and its related Directives. The UK had argued that the Directive on equal treatment of men and women in occupational security did not apply to schemes which fully replaced the statutory pensions. It failed. Consequently, firms had to equalize— that is to lower— retirement ages of men and pay the pension earlier than calculated before. The Court ruling created huge costs for firms that regularly ran occupational pensions schemes. To contain

34

Ilona Ostner



the costly consequences and to give Member States leeway to change eligibility rules, the so-called Barber protocol was inserted into the Maastricht Treaty and the Court ruling was partly reversed. The protocol states that occupational pensions which refer to work periods prior to the ECJ ruling, should not be considered as pay and, therefore, be exempted from the equal treatment principle. The political meaning of the protocol is clear: the Commission must consider the costs of its proposals in tune with the Member States’ interests. A Paradigm Shift? The family had not scored high on the Commission’s and Court’s agenda. Nor did quotas. This is not to say that family issues or quotas had been beyond the Commission’s or the Council’s purview. Quotas, for instance, have existed in various Member States approved by the supranational level. They were, however, defined as means for increasing women’s opportunities, not for attaining any equality of results (equal distribution of position between women and men). The family was either acknowledged as the non-market appendage of a— mostly male— worker who moved across borders, thus, as a potential hindrance to his mobility (Scheiwe 1994). Or, as laid down in the 1992 Council Recommendation on childcare, policies were designed solely from the point of view of those in training in order to obtain employment, of the already employed, or those seeking a job.13 The Recommendation stresses the importance of childcare, and parental and maternity leave as measures that enable people to combine their family responsibilities and occupational ambitions. Equal sharing of childcare responsibilities is strictly linked to equal employment opportunities for men and women. The first Commission proposal on a parental leave Directive is dated as early as 1983. At that time, it was designed to support the Community’s effort to promote the harmonious development of the common market (Falkner 1998, 115). Diverse national provisions, as was argued, hindered European integration. Owing to British opposition, it was put on the backburner for almost a decade. From a pre-Maastricht viewpoint, binding legislation on family concern was not likely to appear on the EU’s agenda (Ostner and Lewis 1995, 180). The strict paid employment nexus of EU gender policies as well as the strengthened focus on ‘subsidiarity’ predicted a stalemate. The Commission, however, subsequently delegated the long-standing proposals on parental leave and part-time work to the social partners for further elabo-

From Equal Pay to Equal Employability

35



ration. By the mid-1990s, the Council had approved Directive 96/34 on parental leave and leave for family reasons on the basis of the framework agreement concluded by the social partners that even extended some provisions of the Commission proposal.14 The Council also adopted Directive 97/81 on the framework agreement on part-time work in 1997.15 The Parental Leave Directive rules a minimum leave of three months, which remains within the limits of existing provisions in most Member States with the exception of Ireland, Luxembourg, and Belgium. It also guarantees an unspecified number of days off for family reasons. Some Member States run more generous schemes. The Directive is— as is the case with the recommendation on childcare— designed to facilitate the reconciliation of parental and professional responsibilities for working parents. It applies to all workers, both men and women, who have an employment contract or employment relationship as defined by law or collective agreements or practices in force in each Member State. Purpose and scope of the Directive are strictly related to employment. In contrast, the German Parental Leave legislation entitles non-working and part-time working mothers irrespective of their previous status (non-working or employed) to parental leave benefits and pension credits. It was explicitly designed to equalize the status of non-employed mothers vis-àvis employed ones and to attach some value to family care. While recognizing that matters concerning statutory social security were for the decision by the Member States, the Directive 97/81 on part-time work explicitly referred to the need to render social security systems more ‘employment friendly.’ The Dublin European Council of December 1996 had emphasized the need to enhance new forms of work in order to combat unemployment. This, in turn, necessitated, as was argued, the development of social protection systems capable of adapting to various new forms of work. The Directive urges Member States to set out general principles and minimum requirements relating to part-time work to eliminate discrimination against part-time workers and to assist the development of opportunities for part-time working on a basis acceptable to employers and workers. These objectives accommodate parent’s, mostly women’s, needs but— as I argue— primarily under the heading of employment growth or, respectively, of increasing employability. The Directive also states that men and women should neither be forced to reduce nor to increase hours but offered the opportunity to do so insofar as possible. The social partners rejected obligatory pro-rata treatment of part-time work as proposed by the Commission. This also mirrors the priority of job creation with little regard to the quality of the newly created jobs.

36

Ilona Ostner



Remaining discrimination must, however, be justified on objective grounds, which must be reviewed in due time. Commission Action Programme for 1996– 2000 announces additional proposals that will link statutory social provisions more strictly to flexible employment and job creation.16 The Directive applies only to part-time work and excludes fixed-term and temporary work from its scope. It also allows for the exclusion of casual workers in tune with national industrial relations systems and other legal practices. These exclusions have also to be periodically reviewed, a procedure which, for instance, the newly elected German government has just started. It plans to regulate opportunities for precarious casual work by obliging employers to contribute to social insurance funds. Casual work below the threshold of monthly earnings of DM 620 or fifteen hours a week has been generally exempted from German social security, and has not officially counted as employment. The new measure will automatically increase Germany’s employment rate. In Marschall v. Land Nordrhein-Westfalen, the Court rejected a male teacher’s complaint of discrimination.17 It argued that the quota system applied by Nordrhein-Westfalen provided space for special considerations, such as specific hardships or handicaps of applicants to jobs, thereby conforming to EU rules. The accused Land had justified preferential treatment of equally qualified women by evidence of employers’ traditional prejudices against women. The Court supported the argument that equal qualifications did not immediately lead to equal opportunities; therefore, preferential treatment of the numerically underrepresented gender was legitimate— provided a clause existed that allowed for special considerations. Deciding on Marschall, the Court referred to Amsterdam Treaty amendments to Article 119. Section 4 explicitly allows for measures providing specific advantages for the underrepresented sex, whether male or female.18 In contrast to its ruling on Kalanke in 1995, the ECJ did not explicitly reject the notion of equality of results. The only drawback to this straightforward interpretation of equal opportunities was the continuous reference to the potential underrepresentation of men, not only women. On the face of it, this seems to constitute a deviation from the scope of application of the 1994 Resolution on equal participation by women— only by women— in an employment-intensive economic growth strategy.19 Finally, in its Medium-term Action Programme on equal opportunities for men and women (1996 to 2000), the Community acknowledged ‘mainstreaming’ as an important instrument for equalizing opportunities for both genders and promised to ensure that gender equality would be considered in every aspect of Community activities. As Hoskyns argues (chapter 3), the emphasis on ‘mainstreaming’ clearly defied the danger of

From Equal Pay to Equal Employability

37



ghettoizing equal opportunities within one section of the Commission’s Social Affairs Directorate-General (DG V). But it did not challenge the principle of ‘subsidiarity,’ which had further restricted the Commission’s role to facilitating rather than directing or regulating. By constantly referring to “ the promotion of a balanced participation of men and women” (Council Decision 95/593, my italics), it also abandoned positive action in favor of women. According to Gerda Falkner (1998, 149), the story of success recalled in this section owes a lot to the corporatist cooperation of public and private players in the EU— employers’ and workers’ associations— which had been fiercely launched by Jacques Delors under the heading of ‘social dialogue.’20 The latter also relates to the principle of ‘subsidiarity’ which rules that those close to an issue at stake should be the ones to negotiate. Falkner also mentions the drawback to this success story. The social partners rejected involvement in issues that are outside the traditional field of labor law. They also refused to negotiate on some cases that they thought would be more appropriately addressed on the national level. The social partners did not negotiate on sexual harassment or reversal of burden of proof in sex discrimination cases that are issues crucial to women. The Commission, therefore, proposed binding legislation on issues that had not yet been negotiated by the social partners (Falkner 1998). This will bring the latter in a tight spot. The supranational corporatist consensus has obviously contributed to the passage of significant women friendly legislation. Does this also indicate a paradigm shift of EU gender policies? A shift from a strict market nexus toward a recognition of family concern? From equality of opportunities to equality of results? Opportunities Revisited All Member States have struggled hard to match the Maastricht criteria and to implement respective austerity measures. Most still do and will do so— despite the landslide victories of French pink socialism, New Labour, and German New Social Democracy. Member States have to come to terms with rising unemployment rates, especially with youth and longterm unemployment, a growing public deficit and the financial pressure on the various national social insurance systems that heavily depend on continuous employment and work-related contributions. Politicians of various colors have readily used Maastricht and, recently, the Amsterdam and Luxembourg summits to argue for and/or justify the restructuring of their welfare states. Non-employment of those of workable

38

Ilona Ostner



age— whether male or female— has replaced unemployment as a focus of concern. At the same time family change, divorce, single parenthood, and connected poverty risks have been redefined in terms of the missing second breadwinner or income source by the various Member States. Social policies, whether in Britain, the Netherlands, Denmark, or Germany, were accused of paying off “ passive” non-working adults, females and males, for example, by allowing for extended opportunities to continue education, or by applying overly generous eligibility rules for early retirement or inability to work schemes. Throughout the EU, social policies have been increasingly designed as active labor market policies for nonemployed women and men. In fact, young low-skilled men as well as less productive unemployed men beyond the age of fifty have become a prominent focus of recent labor market policies and partly driven out issues of women’s employability. Eligibility rules for early retirement, unemployment benefits, or social assistance have been tightened, training and higher education restricted, allowances for nonworking wives cut down and widows’ pensions abrogated. At the same time, both EU as well as Member States’ policy initiatives have increased efforts to render the family more ‘employment friendly.’ Resolution 368/1994 explicitly underlines the extent to which equal opportunities of men and women are based on their respective capability to provide for themselves through paid work. Binding legislation on parental leave and part-time work aim at male and female workers’ employability and flexibility. In my view, these measures react to poverty risks of onebreadwinner families— whether headed by men or by women— in the face of (to be) increased flexible and contingent employment. Since the mid-1990s, policy logics have shifted markedly from decommodification to recommodification, from passive to activating measures. Consequently, they have increasingly abandoned redistribution needed for compensating those out of employment, turned toward financing employability, and stressed obligations that corresponded to rights. Arguments put forward underlined the right and obligation to self-reliance through paid work and individual contributions to social security funds. In turn, policies would grant job seekers ‘initial endowments’ to improve their starting conditions, remove existing barriers toward men’s and women’s employability, and combat those forms of discrimination that hinder employability. On the other hand, the employment-intensive growth strategy must rely on the creation of all sort of jobs, many of them low paying and low standard. This explains the social partners’ and Member States’ reluctance to regulate fully flexible jobs that mainly affects women.

From Equal Pay to Equal Employability

39



In sum, equal opportunities have gained a new meaning as equality of employability of women and men. How do ‘mainstreaming’ and preferential treatment of the underrepresented gender fit into the new focus on employment growth? Both measures are implicitly targeted to higher skilled women in the higher income section of the labor market, as they profit most from positive action policies. Unsurprisingly, it was the higher skilled women who did the lobbying for these measures on the national as well as on the EU level. They constitute a positive incentive for human capital investment and are intended to do so. One may argue that an increased number of women in leading positions might encourage others’ ambitions and— more generally— women’s employability and employment. The inclusion of male interests into preferential treatment rules reacts also to the fact that, while women’s and men’s life and work prospects have become more similar with a growing number of women improving their status, increasing numbers of men have been losing out. The Treaty of Amsterdam explicitly states that the Union shall promote a high level of employment and an employment growth-related policy. The policy shift as apparent in the guidelines following Amsterdam and Luxembourg can be summarized under the headings of (1) new entrepreneurship, (2) employability, (3) adaptability of firms and workers to the goal of enhanced employability, and (4) equal opportunity that closely relates to employability.21 The guidelines stress the need for full employment defined as an employment rate of over 70 percent and an unemployment level of maximum seven percent (unemployment being short-term, not long-term). The parties involved in drafting the guidelines were clear about the fact that this would mean to create more than 25 million jobs EU-wide. Jobs had to be flexible and deviate from traditional standard employment, inequality had to be increased, if significant job creation were to result. This, in turn, necessitated incentives structures for those who feared the many disadvantages of atypical employment, as well as for those capable of working but restrained by family obligations. Accordingly, UNICE (private employers’ organization), CEEP (public employers’ organization), ETUC, Commission and Member States alike have underlined the importance of promoting equal opportunity and treatment between the sexes with a view to a progressive rise in the employment level in Europe. Therefore, they recommended that Member States consider the particular situation of women in the labor market, whenever they will take measures to implement employment guidelines. Member States were also asked to go beyond

40

Ilona Ostner



mere implementation of the existing framework to combat discrimination between women and men and seek, for instance, to promote desegregation of the labor market or to improve infrastructures for childcare and care for dependents. The various decisions mentioned earlier fit these objectives. There are many reasons for the shift toward equal employability: macrostructural ones, such as the defeat of socialism; global economic challenges to both Member States’ and the EU’s competitiveness, which constitutes a strain on political choices. Micro-level changes have added to the shift. Individualistic attitudes and values, the emphasis on rights at the expense of obligations, have strained solidarity and boosted moral hazard and free-riding in the welfare state. This, in turn, lowered acceptance of redistributive policies. At the end of the day, EU Member States are finally bound to come to terms with the market and with governance through the market. Under the headings of employability and adaptability, what seemed to be women and family friendly policies might easily turn out to serve only narrowly defined labor market needs. By reducing all forms of exclusion and disadvantage to problems of employability, the Commission and the social partners have not only found their proper roles as political entrepreneurs in a European Union governed by the market. They also risk to further delegitimize redistributive measures that cannot be immediately linked to employment objectives.

Notes

1.

Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. OJ No. L 45, 19.2.1975.

2.

Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. OJ No. L 39, 14.2.1976.

3.

Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security schemes. OJ No. L 6/24, 10.1.1979.

4.

Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of selfemployed women during pregnancy and motherhood. OJ No. L 359/56, 19.12.1986.

5.

Bilka Kaufhaus v. Weber von Hartz, Case 170/84 [1986] ECR 1607.

6.

Rinner-Kühn v. FWW Spezial-Gebäudereinigung, Case 171/88 [1989] ECR 2743.

7.

Kalanke v. Hansestadt Bremen, Case 450/93 [1995] ECR I-3051.

8.

Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding. OJ No. L 348, 28.11.1992.

9.

Johnson v. Chief Adjudication Officer, Case 31/90 [1991] ECR I-3723.

10.

Hofmann v. Barmer Ersatzkasse, Case 184/83 [1984] ECR 3047.

11.

Paletta v. Brenner, Case 45/90 [1992] ECR I-3423.

12.

Barber v. Guardian Royal Exchange Assurance Group, Case 262/88 [1990] ECR I-1889.

13.

Council Recommendation 92/241/EEC of 31 March 1992 on childcare. OJ No. L 123/16, 8.5.1992.

14.

Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. OJ No. L 145, 19.6.1996.

15.

Council Directive 97/81/EC of 15 December 1997 on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC. OJ No. L 14/9, 20.1.1998.

42

Ilona Ostner

 16.

Council Decision 95/593/EC of 22 December 1995 on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000). OJ No. L 335, 30/12/1995.

17.

Marschall v. Land Nordrhein-Westfalen, Case 409/95 [1997] ECR I-6363.

18.

The Treaty of Amsterdam amended Article 119 that became Article 141. Section 4 of the new Article states: “ With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.” On the new article 119 of the Amsterdam Treaty see also chapter 4.

19.

Resolution of 6 December 1994 on equal participation by women in an employment-intensive economic growth strategy within the European Union. OJ No. C 368, 23.12.1994.

20.

The term ‘social dialogue’ refers to negotiations at European level between employers and the trade unions. These are now the preferred route for producing European legislation on social issues. See CEC 1998.

21.

See also CEC 1997.

Chapter 3

 A Study of Four Action Programmes on Equal Opportunities Catherine Hoskyns

The women’s rights policy of the European Union (EU) has developed gradually over the last forty years. During that time, its contours have been constantly adjusted to fit prevailing trends, political conjunctures, and levels of mobilization. Some core concerns have survived owing mainly to the increasing visibility of women in the public sphere and to the infrastructure that has grown up at European level around an apparently successful policy development. Looking across the time period, certain features are striking. First, the surprising impact of European Community (EC) law on these issues, so that EC directives adopted in the 1970s are still having an effect in the 1990s through rulings of the European Court of Justice (ECJ). Second, the fact that so far spontaneous mobilization among women, combined at certain points with favorable market and political conditions, has been more effective in producing policy than action by the European labor movements, with a much stronger position within the structures. Finally, the intractable, though ever-shifting, nature of women’s disadvantage is made clear by the history of the policy—the constant tinkering and evasive reactions it has provoked, and its uneven progress, are evidence of the profound implications of the issues raised. The Situation in the 1990s It is appropriate in the late 1990s to attempt to evaluate the EU women’s policy and speculate about its future, particularly as the main variables upon which it seems to depend are in a state of flux. This is true of the women’s constituency, increasingly visible though increasingly fragmented

44

Catherine Hoskyns



and diverse, and with class differences between women becoming more apparent. It is also true of attitudes toward regulation, redistribution, state intervention, and social policy— all concepts that are needed to provide the justification, or at least the means, for a policy of this kind. These changing circumstances create both restrictions and possibilities. On the one hand, there is the ironic fact that any new concern with social policy at the European level is now likely to have as much to do with harmonizing cutbacks as with setting basic standards or negotiating improvements. On the other hand, we have seen since 1996: the French lorry drivers’ strike, solidarity across Europe at the closing of the Renault factory at Vilvoorde in Belgium, and demonstrations in Paris, Rome, and Brussels on the application of tough criteria for the EU single currency. These suggest that popular action is reemerging as a force in European politics after a decade of relative quiescence. At the same time, essentially labor movement protests have been supplemented by more popular and feminized manifestations, exemplified by the Belgian ‘white marches’ in protest at the Dutroux scandals.1 These popular actions, far from representing purely national interests and issues, are either a direct response to European policy or have transnational dimensions. The lorry drivers had extra muscle because their actions made clear the extent to which the EU single market depends upon uninterrupted transnational transport, while the anti-EMU (Economic and Monetary Union) demonstrations were directly occasioned by the rigor of the single currency criteria. Michel Dutroux was linked to pedophile rings throughout Europe. In other words, there now exists a clear material base for transnational politics in Europe, a situation that women were the first to sense and exploit. The aim of this article is to see how the EU women’s policy, and the initiatives that both created it and resulted from it, are adjusting (or being adjusted) in these new circumstances. The women’s policy is no longer as unique and separate as it once was. What happens now at the European level in respect of gender relations will be a test both of the ability of different groups to organize and form alliances and of the policy processes now developing within the EU frame. Action Programmes on Equal Opportunities I want to start this evaluation by examining the EU’s four Action Programmes on Equal Opportunities that cover the period 1982– 2000. These action programmes provide a great many words on women, and

Four Action Programmes on Equal Opportunities

45



looking at them in sequence helps to track changing ideas and identify new emphases. The use of action programmes is standard EU practice for managing particular policy areas. Drafts for action programmes are developed in the appropriate division of the European Commission and then presented, with a budget proposal, to the EU Council of Ministers for approval. During the period of negotiation, a wide range of views will be considered, with the relevant Committee of the European Parliament likely to have some influence. Once the action programme is adopted, and the budget agreed upon, the precise aims and objectives set out in the text will provide the basis as appropriate for legislative proposals, the funding of projects, and the commissioning of studies and research. The action programmes on equal opportunities can, therefore, be taken as representing hammered out compromises both within the Commission and between the European institutions and the Member States. There is space for lobbying and influence at various stages both in the drafting and adoption phases as well as over implementation and budget allocation. To lobby effectively demands a high degree of expertise as well as access and information. Both the negotiation of an action programme and its application will at various points be influenced by developments at Member State level, in other EU policies, and in the international environment more broadly. The action programmes on equal opportunities have some particular characteristics that must be emphasized. They address an interested, and to some extent aware, constituency (women), and developments and changes tend to provoke a reaction from a wide range of groups, including the Committee on Women’s Rights of the EP. They are also affected by the stream of rulings from the ECJ on equal treatment cases, which have been referred by the courts of the Member States. These rulings sometimes support policy coming from the Commission, but at times overturn it, as has happened recently on pensions and positive action.2 Thus, the policy overall is a sensitive one, as the subsequent account will demonstrate. Though in many ways similar, the four action programmes can be distinguished by six main criteria. These are: • •

the relation envisaged between Member State and Community action the degree of emphasis on legal instruments (and the balance anticipated between law and other measures)

46

Catherine Hoskyns



• • • •

the scope of the policy initiatives and the extent to which they move beyond the field of paid work the balance in the measures between equality and special treatment the extent to which forms of disadvantage other than gender are recognized as influencing the situation of women the provisions made for networking and participation

Background Every action programme is influenced by past developments and assumptions. The first Action Programme on “ Equal Opportunities for Women 1982– 1985” (AP1) was drawn up following a period in the 1970s when there was both considerable activism among women across Europe and a significant development of equality law at both national and European level (Buckley and Anderson 1988; Hoskyns 1996). The first achievement during that period was the activating of Article 119 of the Treaty of Rome, so equal pay between women and men came to be accepted as a fundamental principle of European law, which could be argued in the national courts of the Member States. The second achievement was the adoption during the 1970s of three EC directives on equal treatment between men and women in the workplace. As a result of these Directives, all Member States were obliged to adopt or amend existing legislation to ensure that it complied with these European rules. These developments emphasized advancing the situation of women through legal instruments that prohibited certain types of behavior and made discriminatory regulations unlawful. The emphasis was on achieving equality between women and men, and positive action for women was permitted rather than encouraged. The measures dealt exclusively with the position of women in paid work, as it was assumed at this stage that the EC had competence over people only in their capacity as paid workers.3 The provisions seemed implicitly to accept the notion of the ‘universal woman,’ and little concern was shown in the explanatory texts or in debates around them for the specific needs of different groups of women. Beyond the legal sphere, the main additional achievement of the 1970s concerned the European Social Fund, which was the main provider of European level funding for the training and resettlement of workers. In the context of a radical reform of the Fund itself, intensive lobbying and pressure produced specific measures and guidelines for the training of women workers, particularly for women returners and in respect of nontraditional jobs.

Four Action Programmes on Equal Opportunities

47



This, then, was the legacy and the context within which the drafters of AP1 had to work. There was considerable impetus behind the policy, in contrast to other areas of EC social policy, but the closure being imposed by recession and cutbacks was beginning to have an effect at the EC level as well as elsewhere. The idea of the action programme was to consolidate and extend achievements so far, and embed them in a secure administrative and budgetary structure within the Commission. Action Programme 1 AP1 was drafted in 1981. It adopted a division between individual rights as embodied in legislation and equal opportunities in practice involving practical activities based on positive action. Acting upon the experience of the 1970s, great emphasis was placed on legal instruments, regarding both the implementation of those already adopted and the negotiation of new measures. The new proposals included a further Directive on equal treatment in social security (covering occupational pensions), a Directive on equal treatment for self-employed women and women in agriculture, and one on parental leave. In the last two an attempt was clearly being made to spread out from narrow workplace concerns to issues that began to address the childcare and family responsibilities of women (and men). Elsewhere in the Commission, Directives were being proposed on rights for part-time workers and on the reduction of working time, both issues of great importance for women. On the equal opportunities/positive action side, a wider range of activities was proposed, including studies of particular aspects of women’s employment, the setting up of a women’s training network, and consideration of the implications of new technologies for women’s employment. In addition, and perhaps surprisingly given later developments, one specific action involved “ the application of the principle of equal treatment to immigrant women.” This was based on the view that immigrant women suffered different kinds of discrimination and, therefore, had special needs. A setback to the equal opportunities strand of AP1 was the demotion of a proposed directive on positive action to a recommendation. This was insisted upon by top officials in the Commission because they believed, probably rightly, that Member State governments were becoming wary of adopting new binding legislation on issues to do with women’s rights. During this period, a sustained attempt was made to expand the networking around the policy and to create a supportive infrastructure. This

48

Catherine Hoskyns



involved establishing numerous expert networks (for example, one on the application of the 1970s Directives, the Law Network) on issues relevant to the programme. An Advisory Committee on Equal Opportunities, involving representatives of the Equality Agencies in the Member States or of the relevant ministries, was established in 1981. At the same time, funds were given to different women’s groups capable of operating at the European level to expand their contacts and activities and to disseminate information. The Women’s Bureau in DG V (the Social Affairs Directorate General of the Commission), and the Committee on Women’s Rights of the European Parliament, became focal points for these types of activities. Between 1982 and 1985— the duration of AP1— the women’s policy was established on a firmer base and the scope of its activities was considerably expanded. A center now existed in the Commission around which debate, lobbying, and negotiation could develop. Though many were critical of the balance of the policy, the way it was implemented, and even more so of the arcane procedures of the European institutions, a certain excitement was generated, unusual in the thin air of Brussels. Action Programme 2 The Second Action Programme on “ Equal Opportunities for Women 1986– 1990” (AP2) was drawn up in very different circumstances from the first. The early 1980s witnessed prolonged economic crisis in the EC, and recession and unemployment showed no signs of abating. In a situation where there were increasing worries about the competitiveness of European industry, deregulation and cost cutting became attractive options for governments of both Left and Right. Adopting the Single Market Programme as a way of renewing the European economy put social policy and labor protection on the back burner. Even in this situation it was felt that there was still some mileage in actions underway or authorized under AP1. It was clear, however, that adopting new legislation in the social policy area, particularly if likely to increase expenditure or introduce new forms of regulation, was becoming increasingly difficult. The Commission had already been forced to jettison proposals for reducing working time and revaluing part-time work in favor of programmes monitoring flexibility and encouraging deregulation. In these circumstances, the planned Directive on parental leave had to be withdrawn and Directives on occupational pensions and on self-employed

Four Action Programmes on Equal Opportunities

49



women were adopted in much weaker forms than originally intended (Rutherford 1989; Hoskyns 1996). The drafters of AP2, working in 1985, while not abandoning the legal route, put less emphasis on it and developed a so-called multi-faceted policy. This emphasized a broad range of actions, including the training and education of professionals, further support for networking, and the adoption of measures that would encourage the “ sharing of family and occupational responsibilities.” This latter theme became the focus for work on childcare and led to the establishment of the European Childcare Network, on the model of the Law Network, discussed earlier. The Network began to compile comparative statistics on the provision of different types of childcare across the Member States, from which it developed strategies (Moss 1988 and 1996). AP1, as we have seen, had prioritized work with immigrant women and studies resulting from this had already been commissioned (de Troy 1987; Morokvasic 1988). AP2 continued this strand but in a more lowkey way, subsuming the concern with immigrant women under a general heading covering the problems of the most disadvantaged women in employment. As the studies came to fruition, an important seminar was held by the Commission’s Women’s Bureau in September 1987 on “ Migrant Women in Employment.” From then on, however, work on this issue fell afoul of the general sensitivity in the Member States on issues to do with race and immigration. The Women’s Bureau was given a strong indication that it should concentrate on general issues of concern to all women and not venture into “ partial interests and special needs,” especially when these involved sensitive issues, and raised questions about Commission competence. This inhibition has proved long lasting and helps to account for the tentative way in which the Women’s Bureau (now the Equal Opportunities Unit) has been able to address issues of race and gender (Hoskyns 1996). Losses and Gains Between 1986 and 1990, the duration of AP2, the women’s policy experienced losses and gains. The ability to get legislation adopted was seriously curtailed, but on the other hand, the existing legislation proved full of life and rulings in the ECJ during the mid-1980s substantially extended rights for part-time and pregnant workers.4 The Women’s Bureau (and, indeed, the whole of DG V) was marginalized during the important negotiations in the 1980s that led to the adoption of the Single Market

50

Catherine Hoskyns



Programme and the Single European Act. Over this same period, however, the Women’s Bureau expanded its staff, its budget, and the scope of its activities. In numerous respects, the policy had burst out of its narrow focus on the workplace, and more issues were being considered that involved questions concerning domestic and unpaid work and women’s reproductive roles. Despite the setback over immigrant women, the needs of a broader range of women were being considered (single parents and women in agriculture, for example), and the networks were becoming better informed and, at the expert level at least, more autonomous. In April 1989, a large conference was held in Toledo, Spain, to assess progress to date (Women in Europe 1989). This was intended to provide the basis for Action Programme 3 due to start in 1991. At just this point, Commission President, Jacques Delors, launched his campaign for a new ‘social dimension’ at European level to balance the increase in economic integration (Gold 1993). Action Programme 3 The “ Third Medium-Term Community Action Programme 1991– 1995” (AP3) was drafted during 1989/90. Although similar in format to the others, it contained some important new emphases. Particular attention was paid to the socioeconomic context within which women had to operate as a result of the intensification of the single market, and to the need to assert women’s interests. Concurrently, the Programme defines more clearly the role of different actors in improving the situation of women (the term equality partners is used). The Community role is seen as facilitative rather than directive and terms such as ‘complementarity’ and ‘subsidiarity’ are used. On the other hand, a new section is included on improving the status of women in society, which moves the policy away from employment to tackle directly the public world of politics and the distribution of resources. This section includes the first discussion of gender ‘mainstreaming’— that is, the integration of equal opportunities for women into all policies developed by the Community. In another innovative move, a commitment is made to improve the involvement of women in the political decision-making process— in parliament, in government, and in institutions. The section on employment is far more nuanced than previously. A study of the application of the principle of equal pay for work of equal value is to be undertaken, and actions are envisaged in three areas, namely

Four Action Programmes on Equal Opportunities

51



sexual harassment (although this term is not used), the protection of pregnancy and maternity, and childcare. It is interesting that all three of these actions (grouped together on two pages) are ones that raise issues about the domestic roles and sexuality of women. Immigrant women and disadvantaged women more generally, are given no specific mention in this Programme. There is, however, recognition both of women’s diverse positions in the labor market, and of the barriers that women face to “ good” employment. A training programme NOW (New Opportunities for Women), originally developed elsewhere in the Commission, is included in the programme, partly, at least, to address these issues. It is striking that there is far less reliance in AP3 on legislation and litigation as a means of achieving results for women. The Commission seems at this point to have settled for the adoption of ‘soft law,’ that is Resolutions, Recommendations, and Communications which, while having little binding force, enabled Community policy on different issues to be established and advanced. Litigation was further queried when the ECJ judgment in the Barber case in May 1990 both disrupted the Commission’s own policy, and so infuriated certain Member States that a special Protocol limiting its effects was added to the Treaty on European Union (TEU).5 From this point on, the ECJ has become generally more restrictive in its rulings in equal treatment cases. Achievements and Doubts During the period 1991– 1995, the duration of AP3, the Equal Opportunities Unit (EOU) was funding nine expert networks on different aspects of the women’s policy. In 1993, a new one was set up on Women in Decision Making that produced useful comparative statistics and conducted some lively campaigning during the 1994 elections to the European Parliament. This Network then began to prepare the strategies being adopted to bring more women into positions of power (Leijenaar 1997). These networking and representational activities took up approximately onethird of the budget for AP3, which was estimated in total at around ECU (European Currency Unit) 5m for 1991.The Commission in 1991 also began to provide core funding (though from a separate budget) for the European Women’s Lobby, established to perform the difficult task of representing (all) women’s interests at the European level. With AP3, the women’s policy moved into a new phase. One reaction to the marginalization experienced during the 1980s, and to the rebuffs over certain aspects of policy, was the new emphasis on ‘mainstreaming’

52

Catherine Hoskyns



and on the gender imbalance in political decision making. Without greater women’s presence in all sectors and at the top of the hierarchies, it was felt that very little further progress could be made. The funding of the European Women’s Lobby to focus pressure from women’s organizations fitted within this rationale. The expert networks provided a support structure for the policy although it was very obvious that some functioned better than others and produced better work. As AP3 progressed some doubts were expressed about the tactics it seemed to embody. Was not the expansion of scope too great given the limited budget and would not the downplaying of the legal/litigation element deprive the policy of its cutting edge? Was not the lack of emphasis on disadvantage removing the capacity to address women’s needs at the grassroots level? Doubts about the direction of the policy were reinforced by the fact that this Action Programme was entitled “ Equal Opportunities for Women and Men,” instead of the simple “ Equal Opportunities for Women” used in the earlier programmes.6 Clearly, valid questions were being raised here. During the early 1990s, however, the policy still appeared vibrant, with the emphasis on decision making providing a new focus for campaigning. Despite the downplaying of the legal route, a Directive on the protection of pregnant workers was adopted in 1992 as an EC level health and safety measure, albeit in a relatively weak form. How much this activism was a legacy from the past and rested on past traditions of solidarity was unclear. Much would depend upon how the next programme (AP4) developed. Action Programme 4 The Fourth Medium-Term Community Action Programme on “ Equal Opportunities for Women and Men 1996– 2000” (AP4) was drafted in 1994/95. As can be seen, the expansion in the title to include men in the equality process was retained. Discussions and consultations on the text of AP4 took place at a time of considerable malaise and disarray in the EU as a whole. This resulted from the difficulties in ratifying the Treaty on European Union (TEU), the opt-outs negotiated for Denmark and Britain, and increasing economic problems across the Union. The need for financial stringency, if countries were to comply with the criteria set in the TEU for adopting a single currency seemed likely to compound social discontent. The application of the doctrine of ‘subsidiarity,’ and greater emphasis on the distinctiveness and continuing autonomy of the individual Member States were seen as

Four Action Programmes on Equal Opportunities

53



vital strategies for the EU to adopt to reassure public opinion.7 Despite these factors, initial consultations on AP4 were broad and positive, and a first draft was drawn up that centered on the idea of citizenship and its meaning for women. At a certain point, however, senior officials in the Commission took over and used the above concerns to make sure that a weaker and less focused draft was produced. Themes and Issues In the text of AP4, a certain combination of ideas and actions come together. This is the result partly of the evolution of the policy itself over the past fifteen years, and partly of the need to conform to prevailing EU concerns and preoccupations. Three overall themes can be identified in the programme. The first of these is the continuing concern with ‘mainstreaming,’ which, while tentative in AP3, is now developed as the main organizing principle of the programme. This involves spreading an awareness of gender issues out from DG V, so that it becomes an obligation for all the DGs in the Commission, and is incorporated into all Community policies. The programme gives this a high priority, although exactly what it would mean in practice or how it would be implemented and monitored is not delineated. The priority given to ‘mainstreaming’ goes along with a continuing emphasis on women in decision making and on the need to achieve a gender balance in all political, economic, and social institutions at both EU and Member State level. The second major concern is with ‘subsidiarity,’ and with the resulting need to identify rather precisely the roles of the EU institutions and the Member States in developing a policy of this kind. Here, in contrast to the past, the emphasis is placed upon the primacy of Member State action and the important, but mainly supportive, role of the Commission. Rather than developing or directing policy, the role of the Commission is seen essentially as one of facilitating communication by gathering information, sponsoring research, encouraging transnational contact, disseminating “ best practice,” and monitoring developments. Great emphasis is placed on the importance of what is called “ Community added value.” This embodies the notion that EU action should not replicate or replace what is (or should be) done at the national level, but add something to it, either by dealing with the EU level or by making connections between or extrapolations from diverse national practice. For the first time, in AP4 there is no mention at all of disadvantaged or migrant women or of the need to bear their interests in mind in developing policy. This may be partly a result of ‘subsidiarity,’ as, under certain

54

Catherine Hoskyns



interpretations of this concept, issues of poverty are ones that should be addressed by national, if not local, measures and strategies. It is a significant omission, however, in that it reflects the growing tendency, in the EU as elsewhere, to divorce the situation of people at the bottom of the social ladder from discussions of grand strategy. The third concern is with control and focus. AP3 is described as having had a “ fragmented approach” to implementation. To prevent this in the future, there is a proposal to set up a “ broad co-ordinating structure,” given the name ANIMA, “ to rationalize and replace existing structures and networks.” The clear intention here is to increase the control of the Commission over what is said and done about women’s issues. In addition to these overarching themes, other characteristics may be noted. The first of these is the further reduction of the importance given to law and legal remedies. Law as a strategy for enforcing rights is only mentioned briefly at the end of the document and, even there, the focus is on providing information and creating awareness. No new measures are proposed, although there is a commitment to try to upgrade into binding Directives previous soft law provisions on sexual harassment and childcare. The incorporation of law on women as one element in the general swathe of social policy legal measures being considered by DG V and in the ‘social dialogue,’ is encouraged implicitly, if not explicitly, by this approach. Similarly, whereas specific training for women under the NOW programme was extremely prominent under AP3, in AP4 it is moved back into the overall training programmes of the EU structural funds. A strong commitment is made to review and monitor the use by women of all the training programmes, general and specific. Here again, an important concern is moved out to other areas in the Commission, without the certainty that structures exist to ensure that a woman-centered approach persists. Finally, considerable emphasis in AP4 is placed on the need for policy to encourage the reconciliation of work and family responsibilities for both men and women. This is an issue that has been pursued for some time in the women’s policy through a variety of initiatives incorporating such issues as the individualisation of benefits, parental leave for both men and women, childcare, and the provision of services. A sophisticated analysis of the implications is given, evidence of a continuing concern at EU level with this conceptual approach that focuses on the crossing points between paid and unpaid work and the roles of women and men.

Four Action Programmes on Equal Opportunities

55



Practical Outcomes AP4 was adopted by a decision of the Council of Ministers (instead of a resolution as previously), which indicated a desire on the part of at least some Member States to keep a greater control over the implementation of the policy. The use of a decision allows the Council to establish a management committee that must be consulted about all budgetary allocations. Reports of the negotiations suggest that the doctrine of ‘subsidiarity’ was used by some governments seriously to question whether policy on women was a suitable issue for action at the EU level. In the end, and after a great deal of lobbying by women’s organizations in national capitals, the programme was approved, but the Commission’s suggested budget was cut in half, from ECU 60m over three years to ECU 30m. AP4 has only been in operation for three years; therefore, predictions about its application must be tentative. A few interim comments can be made, however. In the first place, there seems to be a proliferation of structures around the policy with very unclear relationships between the controlling bodies. At the same time, the expert networks have been wound up, with the exception of those dealing with legal monitoring and employment issues. All of this provides a confusion of structures together with a greater centralization of authority in the top echelons of DG V. What the role of the EOU will be remains unclear— it no longer appears to be providing the energy and dynamism for the programme as a whole. It may well be that some pruning of the networks was necessary, but their abrupt closure and replacement by a body (ANIMA) with an uncertain role and ethos, cuts some important links with policymaking at Member State level. It also strikes a blow at the kind of unpredictable incrementalism that has proved effective in the past. Despite the downplaying of legal strategies, the law has continued to be important with the ruling by the ECJ in the Kalanke case in October 1995 upsetting previous positive action strategies in appointments to key jobs.8 The decision (made by an entirely male court) caught the Commission off guard and without an effective response. The ruling in Kalanke is representative of an increasing tendency in the Court to interpret equality legislation in ways that protect the situation of men. Some redress is beginning to occur as is evinced by the Court’s slightly more favorable (to women) ruling in the Marschall case and the paragraph on positive action in the 1997 EU Amsterdam Treaty.9

56

Catherine Hoskyns



In December 1996, sixty-nine projects were approved for funding under AP4.10 The diversity of the projects is striking, with much greater emphasis than previously on communication, the media, and the dissemination of good practice. The best projects continue work already begun. One, for example, on the position and influence of women in company works councils, follows research done at an earlier stage on women in the EU ‘social dialogue’ (Cockburn 1995a).11 Numerous projects deal with marginalized or disadvantaged women, despite the lack of emphasis on this subject in the text of AP4. There is, for example, one project to support women gypsies in Ireland and another two on home-workers. What the outcome of these projects will be is hard to predict. They demonstrate the continuing vibrancy and diversity of women’s grassroots activity, but the twist put on them by “ Community added value” conveys the somewhat false impression that communication and transnational exchange on their own can solve problems. From Past to Future The criteria set out in the first section of this article provide a means of assessing the content and trajectory of these four action programmes and with them the direction of the women’s policy itself. On the question of the balance between Member States and Community action, there has been a clear move in favor of the former. Whereas in the 1970s and in AP1 there was an assumption that the role of Community policy was to establish common standards and provide direction, by the 1990s and AP4, the Commission is acting more as a facilitator and a monitor than as a generator of policy. The legal framework for equal treatment still exists and has some power, but it remains questionable whether it will be extended in ways that favor women. The scope of the policy has vastly increased and has moved beyond the employment field to tackle the issue of decision making and to begin to breach the public/private divide. At the same time, as the scope has broadened, the focus has become more blurred for the reasons previously discussed. The current emphasis on ‘mainstreaming’ exactly illustrates the possibilities and dangers of this situation. It is perhaps no coincidence that as the policy begins to move in ways that might affect the situation and behavior of men, the ECJ and elements within Member State governments, and in the Commission itself, have taken action to reassert

Four Action Programmes on Equal Opportunities

57



control and emphasize the issue of equality over positive action and special treatment. While law is always an unpredictable instrument, as the Kalanke ruling shows, retreating from struggles around the law and its application, means abandoning a terrain that is of overriding importance in the EU political process. Over the twenty years of the policy, there has been a varying emphasis given to the issue of disadvantage among women and to the needs of particular groups, such as black and migrant women (EWL 1995). It is disturbing that in the text of AP4 this concern has vanished entirely, though not as we have seen from the projects.12 The danger in this development is that it increases the fragmentation of the women’s constituency, instead of helping to mend it, and means that a policy for women becomes too easily a policy for some women only. The issue of women in decision making raises this point very sharply. Is the policy designed to facilitate the entry of a few more women into top jobs, or to tackle the broader question of the representation of all types of women throughout the political system?13 The organization of the women’s policy has altered significantly over the period in question. Whereas the Women’s Bureau in the Commission started in an amateur but committed fashion and its activities were largely ghettoized, the present Equal Opportunities Unit is much larger and more professional and the policy of ‘mainstreaming’ gives it potentially at least a remit across all Community policies and actions. It is a matter of concern, however, that just at this point its competence and lines of authority are unclear, and no additional funding has been granted for this huge increase in responsibilities. Nor is it encouraging that some of the key networking links have been cut and participation reduced at this particular point in time. It is no mean achievement that a women’s policy exists at the level of the EU and, as can be seen from the above account, both its past endeavors and its potentialities are considerable. It is probably right that the time has come to move the policy away from the ghetto and into the mainstream. However, it will be superbly ironic (though by no means a surprise) if the way this is done has the effect of undermining the policy’s identity and reducing its impact. The recently negotiated Amsterdam Treaty reproduces this ambiguity. Gender equality is endorsed as one of the main aims of the European Union, yet, the lack of attention paid to disadvantage makes it likely that women with fewest resources and least privileges will gain little benefit.

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

After all these years, patriarchal structures (sometimes policed by women) are still firmly in place in the EU as elsewhere. They can only be undermined through concerted action by a wide range of women forming alliances with other social groups with overlapping interests. As was said at the beginning, there are many contradictory trends in EU politics at the moment; the EU women’s policy is a good place to watch them at work.

Notes

I am grateful to Pauline Conroy and Agnès Hubert for help with the text. 1.

Michel Dutroux was a Belgian pedophile who was finally found in 1996 to have abducted, tortured, and killed at least seven young girls. The massive ‘white marches’ took place in October 1996 in protest at government inaction and suspected police corruption.

2.

See Barber ECJ Case and Kalanke ECJ Case in chapters 2 and 4.

3.

Only with the 1993 Treaty on European Union has the EU moved tentatively to a concern with people as citizens rather than as workers.

4.

See Bilka Kaufhaus GmbH v. Karin Weber von Hartz Case 170/84 [1986] ECR 1607 on access to pensions for part-time workers, and Dekker v. Stichting Virmingscentrum Voor Fonge Volwassen Plus Case C-177/88[1991] IRLR 27 on rights for pregnant workers.

5.

See chapter 2.

6.

It seems that this name change resulted from the insistence of the Scandinavian Member States (Sweden and Denmark) and was meant to show that men were involved in the issue of women’s equality. However, it was widely understood to mean (and legal interpretations seemed to support this) that men also had a right to equality.

7.

For the doctrine of ‘subsidiarity,’ see chapters 1 and 2.

8.

See chapters 2 and 4 on the Kalanke case.

9.

See the different opinions in chapters 2 and 4.

10.

The projects are 60 percent funded by the EU with amounts ranging from twenty thousand to over one hundred thousand ECU per project.

11.

See chapter 8.

12.

It is interesting, however, that the designation of 1997 as the EU’s Year Against Racism seems to have caused both the Equal Opportunities Unit and the European Women’s Lobby to look again at the situation of black and migrant women.

13.

See OECD 1994.

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Chapter 4

 Parity Democracy—Law and Europe Eliane Vogel–Polsky

Citizenship Revisited The history of the ways in which democracy has developed in different countries during recent centuries generally disregards the female factor. Thus, some countries, such as France, which were considered to be in the vanguard of the democratic revolution, did not give women the vote until long after other countries that were considered to be more politically backward. Similarly, the dynamics of the creation and consolidation of citizenship, following the sequence of civil rights, political rights, social rights as propounded by T. H. Marshall, no longer work or, at best, reveal astonishing distortions as soon as the history of women’s rights is included in the equation. The nonparticipation of women in political life and their exclusion from citizenship appear at first sight like a permanent feature of the history of the various civilizations down through the millennia. Only the twentieth century seems to have begun, partially and imperfectly, to alter that situation. So what, one might ask, is the point of reviewing history? What political lesson can it teach us? If we were to trace the origins of values to which we adhere today, such as liberty or equality, we would find neither liberty nor equality accorded to women, nor even available to women on the same terms as men. Because the emancipation of women is a strictly contemporary issue, why should it not suffice to “perfect modernity,” as some say, in order to bring the matter to a satisfactory conclusion? There are several grounds for rejecting this argument. History is made by the victors, by the dominant parties. In the present context, this means that it has not been made by women. But it does not follow that a critical review of the past should be limited to enumerating historical facts “just as they really were.” It is also necessary to “back-

62

Eliane Vogel-Polsky



comb history,” as Walter Benjamin suggests, to unearth the resistance, revolts, utopias, and aspirations that were crushed by those victors and flattened under the wheel of history. It is equally important to state that this enduring historical phenomenon of the political exclusion of women has assumed numerous different forms. The reasons and motives advanced to justify this exclusion have differed throughout the ages and from one society to another. An analysis of the past reveals the entire palette of prejudices against women and of ideological visions depreciating the “ female nature.” But it is not only a matter of ideologies. The entire institution of society has been imposing political exclusion upon women in the name of certain of its most fundamental defining principles— the social division of labor between the sexes, the separation and definition of the public and private spheres, and the conception of citizenship. The genesis and gradual establishment of “ democratic institutions,” “ democratic rights” or the “ democratic individual” took place historically without the recognized participation of women. The definition of these concepts in terms of political jurisprudence and their justification in terms of moral philosophy were only adjusted belatedly and chaotically to include women, but only as though an omitted or previously unavailable item were being inserted. The omission was certainly perceived as regrettable but not as influencing in any way the effective concepts, implications, and practices of the democracy in question. This integration of women as a factor in the historical and sociological interpretation of democracy does raise important political issues. It also sheds more light on the present examination of the “ democratic deficit” than is shed by the current situation of women in politics. If, despite the rapidity with which all the other aspects of the female condition in contemporary society have been transformed, the position of women in corridors of power remains that of a subordinated minority, the problem is unlikely to be attributable to an isolated case of cultural inertia. This inertia or inflexibility derives from causes inherent in the system. To analyze these with a view to seeking a remedy dictates a return to history, a challenge of general principles as well as resolute actions, without fearing to lift the veil from the goddess of democracy or to see a fig leaf for what it is— a device to hide one’s sexual identity. To put it concisely, the relationship of women to politics teaches us a great deal, not only about the position of women in society but also about the nature of politics and about the effective meaning of citizenship. The demand for the establishment of parity between men and women in the various seats of political decision making is new. It has undoubtedly

Parity Democracy— Law and Europe

63



begun to evoke a response, unmistakable even though weak, in the media and in some political forums. It is still difficult to judge the reality and the extent of its impact on opinion, and to determine how much of the serious interest it appears to arouse in the political community is the result of genuine concern and how much is born of self-interested benevolence. Be that as it may, this demand is integrally linked to three elements that guarantee its current unassailable place in the political debate: 1 An observation. It is fifty years since universal suffrage was extended to women in Europe, but their presence in the various seats of political decision making has not made any appreciable progress in recent decades. This near-stagnation is fully accentuated when compared with the speed of the transformation which, over the same period, has affected the position of women in the other spheres of social life (employment rate, education level, social convention, living standards, marriage and family, symbolic roles, and so forth). 2 An inventory. The results of the various strategies to promote sexual equality have in most cases been extremely disappointing. Every time there is an endeavor to stifle their effects in a particular sector, the structural mechanisms that produce discrimination are redeployed so as to perpetuate the reproduction of an asymmetrical division between the sexes. On the symbolic level, policies of positive action in favor of disadvantaged or discriminated groups, in which women are included, frequently have stigmatizing effects. 3 A powerful argument. The formulation of the problem of women’s position in political life in terms of parity effectively moves the debate into a different area. The old issue, seen as a struggle against inequalities and discrimination, rested on a prescriptive consensus— as the political system is essentially democratic, its operation must be improved in order to encourage the participation of women. The new issue of parity introduces prescriptive disagreement— as democracy implies sharing power, it is necessary to transform the institutional operation that ensures a near-monopoly of men in positions of authority. This changes the political issue from one of participation to one of sharing. This shift produces a reversal of the “ burden of proof,” to use the language of judicial procedure. It is no longer up to feminists to prove that particular institutional mechanisms are discriminatory in practice and that they need to be corrected; it is now up to the defenders of the status

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Eliane Vogel-Polsky



quo to demonstrate that the demand for parity is unfounded or unwarranted. The effects of this situation are immediately obvious. As soon as the argument for parity is established as an element in the political debate, its opponents must face up to it, declare their opposition and thus be seen for what they are. In the course of the electoral campaign for the European elections in June 1994, Michel Rocard stated that he had been persuaded to present a list based on parity by the fact that the counterarguments seemed to him to be totally analogous to those advanced by the opponents of female suffrage several decades ago. The outlandish and marginal aura that seems to surround the parity demand today (“ the whim of a handful of hyper-feminist theoreticians” ), the suspicion that sometimes accompanies it (“ tactics used by a lobby of professional women politicians in the struggle for positions of power” ) are not arguments and must not mislead us. The more serious objections are those concerning its feasibility. The implementation of parity would entail changes reaching into the very heart of the machinery of political life and the operation of institutions. The establishment of parity would affect to differing degrees the political premises governing the organization of our democratic society as a society of individuals. It would also effect the atomistic view of the formation of the social bond, political equality as a formal equality under law, and the automatic transposition, through representative mechanisms, of the elector’s free choice. The proposition that parity be created within representative bodies may appear like the imposition of an arbitrary norm that would violate the self-determination of the political parties and citizens to adopt or elect the candidates of their choice. But the composition of body politics is always synonymous with an arbitrary type of self-definition. The decision taken during the last century to limit the composition of the electorate to those voters who paid the poll tax, or the custom that endured over several decades of referring to universal manhood suffrage as simply “ universal suffrage” were arbitrary acts, although no jurist would ever try to demonstrate the illegitimacy of laws adopted by the representatives of the electorate of that era. As regards representative bodies, in states where legislative power is organized on a bicameral basis, eligibility for a seat in the senate has been or still is limited to citizens aged 40 and over. In certain multiethnic states with a federal system of government, one of the two chambers is composed of an equal number of representatives of each of the federal entities, irrespective of the numerical disproportion in terms of electorates. These two examples show typical cases in which the com-

Parity Democracy— Law and Europe

65



position of a legislative organ is defined arbitrarily, despite the principle of the formal equality of citizens above and below forty years of age or of citizens from different ethnic groups. One could almost turn this objection around rhetorically and ask whether the male preponderance in representative organs is not an obstacle to the equal exercise of political and civic rights by male and female citizens. Not least among the merits of the demand for parity is precisely that it reopens the question of the political domain, of its specificity in relation to the other spheres of collective existence. In a democratic regime, by virtue of the publicity and plurality that surrounds it, the political sphere is legitimately the one in which the policies that a group seeks to adopt become representable to everyone. In this respect, the demand for representative parity, which only requires one legal reform, is perhaps more radical than it seems. Politics, of course, is but one field among others where social links and relations between subjects develop irrespective of policy. It is the field, however, in which the various spheres are instituted and differentiated— that which can be shared, that which is susceptible to participation or privatization, that which belongs to the domestic, the social, or the public realm. When the “ political” public sphere is monopolized by one sex, the political institution of the difference between the sexes, which ordains this allocation to one sphere or another, remains unchallenged. By virtue of representative parity, sex-related differences in status, position, or aspirations, can at last visibly become a political question that challenges the very institution of the various spheres of activity and the criteria governing their development. The same applies to the relations between subjects that proceed from citizenship. Parity in this instance appears as a corrective mechanism for the ways in which a permanent division of political work is reproduced between a mass of passive citizens and a neooligarchy of decision makers. Now, there is no political participation without power sharing, and this latter is, for its part, inconceivable without the highest possible level of transitivity of political responsibilities. From this point of view, parity does not simply remedy the quantitative disproportion between men and women in posts of political responsibility by establishing a static symmetry, but should be able to contribute to a far more fluid circulation of power as such. The question is more complex with regard to the relationship between parity and the formation of the identity of individual subjects. At first sight, the prospect of parity seems to rest on premises that contradict two key trends of our age.

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Eliane Vogel-Polsky



The first trend corresponds to the progressive attenuation in contemporary culture of the rigid and substantialist representation of the difference between the sexes, according to which each sex represents an entity a priori, endowed with clear and distinct characteristics. Parity, however, by introducing sex as a criterion of political organization, may seem to divide men and women once more into their respective “ types,” each regarded as a natural group. The second trend corresponds to the greater individualization of the forms of relationship between the sexes, resulting from a situation in which the identifying stereotypes— that enabled people to conform to sexual roles and to define themselves as individuals— have become considerably more fragile and precarious. If we add that the family as an institution is ceasing to be the principal mediator between the individual and society, it might be considered that male-female relations are assuming increasingly differentiated forms. To that extent, the demand for parity may appear to be the expression of an aspiration based on a feeling of collective identity that is less and less in evidence. It is possible, however, to provide another interpretation of the idea of parity that presents it neither as the expression of the political institutionalization of the difference between the sexes, nor as the vehicle of a collective female identity that is raising more and more problems. From this perspective, the hypothesis we wish to submit is the following— the establishment of parity would make sexuality an issue precisely by placing it on the political agenda. In a democratic regime, to politicize a matter amounts to removing the veneer of nature and tradition by making it a negotiable question. If the relationship between the sexes and sexual identity became a matter for negotiation, would that not be the best safeguard against a blind crystallization of the new forms of relationship between the sexes that are currently being developed? Parity Democracy and State Feminism The concept of parity emerges at the end of the 1980s in the context of research conducted on the presence and role of women in political, economic, and social decision making in Europe. Interest in women’s role in decision making is founded on theories about citizenship, equality, and representation. The debate runs about powers, democracy, and gender, where gender is understood as the social consequences and construction of biological sex. But this interest in clarifying the relationships between gender, power, and representation is not limited to researchers. It concerns different groups

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67



and Non Governmental Organizations (NGOs). Moreover, in the present decade, organizations, such as the Council of Europe, the European Commission, and the Inter-parliamentary Union dealt many times with “ parity democracy” and adopted official positions such as Declaration on “ Partnership between Men and Women in Politics.” 1 The title itself of the Inter-parliamentary Union’s Declaration recourses to the expression partnership, while the content of the Declaration refers evidently to parity. “Parity democracy” is needed to develop, in modern democratic societies, a new social contract in which men and women work in equality, enriching each other from their differences. The interest of this declaration lies in the way it reflects the debates and oppositions on the need for quotas at all levels where decisions are actually made, from parties to governmental bodies. It is interesting to cite that, even if the views on quotas are different, “ it is clear to us all that quotas are only a necessary evil which should be applied on a temporary basis in order to redress the current dramatic imbalance between men and women” (Art. 17 of the Declaration). But it appears that the consensus is relatively weak. Law providing for compulsory quotas, binding on all parties, are opposed, in name of the “ discriminatory nature” of quotas and the breach they cause in the gender-neutral system of formal equality. In the mid-1990s also the Council of Europe opened the discussion on parity, linking it to the equality of men and women as the fundamental criterion of democracy.2 At the end of the 4th European Ministerial Conference on equality between men and women (Istanbul, November 13– 14, 1997), the Ministers of the States participating in this meeting stressed “ the importance of a more balanced representation of men and women in all sectors of society, including political life,” considering that the principle of pluralist democracy, and respect for human rights constitute the base of the general work of the Council of Europe. The Ministers note solemnly: “ in spite of the significant changes in the status, the role and the contributions of women in society during the second half of this century, the distribution of power, responsibilities and access to resources between women and men is still very unequal.” That is why the balanced representation of women and men in political decision making would ensure a better functioning of a democratic society. In the name of the general interest of the society, the Ministers conclude that the work toward the achievement of equality between women and men should no longer be considered a women’s issue but become the concern of society as a whole. The European Community entered into the debate on the political exclusion of women at the beginning of the 1990s. In order to implement

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Eliane Vogel-Polsky



its third Community Action Programme on equal opportunities for men and women (1991– 1995), a European Expert Network on Women in Decision making was set up in 1992, with the task of promoting the participation of women in the decision-making process at all levels and in all areas of society.3 To this end, the Network collected data on political areas, social partners, high public function, and consultative committees at national levels. The survey provided the analysis of the obstacles hindering women in the decision-making process and proposed strategies. Its objective was to formulate a global strategy and large public campaigns in the years to come. Recently, the Council of Ministers of the European Union adopted a Recommendation for balanced participation of women and men in decision-making processes (December 1996).4 This text provides for Member States and Community institutions to develop strategies and measures intended to set up— as a democratic requisite— the participation of women in the decision-making process. This participation requires the presence of women in decision-making bodies at all levels of political, economic, social, and cultural life. The Recommendation is also addressed to the institutions and bodies of the European Community, that is the Council, the Commission, the European Parliament, the Court of Justice, the Economic and Social Committee, the Committee of Regions, the European Investment Bank, the Audit Office, and so forth. It encourages them to “ develop a strategy intended to achieve a balanced participation of women and men in the decision-making process” within each of these European entities. The Commission has three years (until December 1999) to report to the Member States and the above-mentioned Community institutions on the achievement of the objectives set by the Recommendation. Solemn commitments undertaken by the Member States of European organizations and by the highest level institutions of the European Union declare the urgent need to achieve a balanced participation of men and women in the process of political decision making. However, in practice the democratic-requisite is more like a long distance goal, to be reached by means of goodwill and voluntary measures, such as promotion, ‘mainstreaming,’ integration, and empowerment. Through these operations, it loses its nature of an essential feature of democracy to become a tangential accessory of democratic institutions. The figures say it all. Equality for women remains in the realm of wishful thinking.5 The recognition of the basic right to equality of women and men, as a wholly separate basic right, does not exist anywhere in the world. On the eve of the third millennium everyone agrees— at least in

Parity Democracy— Law and Europe

69



words and speeches— that one of the major social revolutions of the twentieth century has been the women’s liberation movement. However, political and social praxis ignores the fact that there will be no advent of a democratic society while half of the human race is denied the effective and active status of citizen. It is considered normal, as if it goes without saying, that nationally and locally elected political assemblies in Europe have 89 percent of male members, that the European Parliament is composed of 75 percent men, and that economic decisions are, in 95 percent of cases, made by men (CEC 1996). It is true that, after World War II, the issue of sexual equality was merely taken into account by the State Feminism. Its better achievement was offered by international treaties and covenants (UN, International Labor Organization, Council of Europe, and so forth) and by national constitutions and laws. This State Feminism was anchored in the principle of equality between men and women as a principle of human rights, a sine qua non of democracy, and an imperative of social justice. From the beginning, however, from the point of view of legal critique, a fairly important error of judgment existed in placing the principle of equality between men and women at the bottom of the legal normative hierarchy. Since 1948, with the adoption of the Universal Declaration of Human Rights, activities for the promotion of equality between men and women have encompassed legislation, various strategies, and public policies. Gender equality itself has not been considered as a real Right, but as a guiding principle for the interpretation or monitoring of the ban on discrimination on the grounds of sex. Despite its recognition as a human right, sex equality was (and still is) considered as an ideal to promote, a goal to achieve, and not a real Right, self-executing, legally binding, and protected as such by the tribunals and the public authorities. Legal feminist critique of the androcentric perspective on human rights and citizenship shows clearly how we can place apparently universal values into gender perspective without falling into a moral void, for the equality laws have been built on gender relations. During the early 1970s, parity was merely developed in the Scandinavian countries and represented an intermediary stage between a traditional labor law pattern (the first field for equality legislation) and the new state feminism model. The answer to the question why state feminism and its emancipatory model contained oppressive potential will be discussed later. At the dawn of the twenty-first century, the abyss between formal and neutral equality and effective sexual equality in all spheres of society, at world level, still remains. Governments and legislators are, nonetheless

70

Eliane Vogel-Polsky



seeking better methods to integrate women in a male society, still ignoring the fact that, because equality does not compel all the actors of social, economic, political, and cultural relations, the scenery will remain unchanged. Yet, in the Beijing Conference, for the first time, the slogan Women’s Rights are Human Rights seemed to open a new era in the world of international Human Rights Law. But the UN’s experts and the political representatives of the Member States refused to include the term “ parity” in the Beijing Platform. Parity and the Fundamental Right to Equality between Men and Women The full accomplishment of human rights for all demands that equality of the sexes, both in theory and in practice, be regarded as a fundamental, basic right. It should be enacted in practice through the actual participation of citizens at all decision-making levels in political, social, economic, and cultural life. Access for women to decision making results from the fundamental principle of equality of the sexes, which, although recognized nationally and internationally, and undisputed in theory, is still awaiting practical implementation. Asking ourselves questions about the situation of women’s rights in the twenty-first century means assessing the incompletion and singularity of these rights. This raises the question about whether, in theory and in practice, the current political structures are actually legitimate, and also calls into question the operational capacity of the legal and institutional mechanisms that supposedly ensure that all citizens are represented. However, the exclusion of women from the political sphere is perceived neither as a central element of the crisis affecting our democracies nor as an unacceptable failing of democracy. Democracy based on parity cannot be a question of treating women as either a specific group or a minority group in a dominant framework, but of ensuring that the two sexes— of equal value and importance— hold an equivalent position in a relationship of structurally established interdependence. The logic of parity excludes the quota technique. The question of parity between women and men must be seen as a political priority, stemming from the founding and constitutive principles of citizenship, in the same way as universal suffrage or the separation of powers. This recognition of parity must be given practical expression through measures taken in all the legal, political, economic, social, and

Parity Democracy— Law and Europe

71



cultural domains. As regards the implementation of parity, the main text— constitutions, treaties, and laws— will have to be reviewed and rewritten. The first task will be to integrate parity in all places of political decision making. Rebuilding European citizenship as a citizenship founded on paritybased democracy makes it possible to go beyond the division between the public and the private sphere, and the well-known antagonism between equality and difference. Equality is never completely acquired by women, and must be constantly legitimized, justified, defended, and won back again. At national and European levels, we have just seen exemplary illustrations. In Italy, the Constitutional Court, in its judgment of July 21, 1995, ruled against the electoral legislation (dating from 1994) which provides “ that neither sex can have a representation of more than 2/3rds (or ¾ in certain cases) on lists of candidates.” The Court made this pronouncement on the grounds that the fundamental right of eligibility for political office cannot be treated differently because of gender. In other words, by upholding the concept of formal equality, the Court is maintaining and justifying the political exclusion of women— that is, the substantial inequality to which they are subject. In turn, on October 17, 1995, the European Court of Justice (ECJ) made a pronouncement on the meaning of the general principle of the equality of men and women, with regard to the contradiction between formal equality, interpreted as equality of treatment between individuals belonging to groups of different sexes, and substantive equality, interpreted as the equality between these two groups.6 Essentially, the question is whether the right of each individual not to be subject to discrimination based on gender— a right which has been recognized by the Court itself as a fundamental right— should be secondary to the rights of a disadvantaged group, in this case women, in order to compensate discrimination suffered in the past (or in the present) by this group. In this case, the Court was asked to rule on the legality under Community legislation on equal treatment of a law in the German state of Bremen, applicable to the public services. This provides that “ women with qualifications equal to those of their male rivals must be given preference for recruitment or promotion, where they are under-represented in the grade of the category of the personnel of a department.” The Court ruled against “ a national regulation which is aimed at establishing equality of representation of women in relation to men in every grade and level of a service, because it substitutes for equal opportunities (authorized by

72

Eliane Vogel-Polsky



Community law) the result which only the implementation of such equal opportunities could achieve.” What Community law allows, as a derogation from the principle of formal equality is gradual equalization measures, which are necessary to achieve, perhaps, equal treatment one day. This slippage from equality to equalization is significant. In a previous case (Commission v. France, Case 321/86), the Court pointed out that Community law “ allows national measures in the field of employment, including promotion which, by giving favorable treatment to women, are intended to improve their ability to compete in the labor market, and pursue a career on an equal footing with men.” Phrased more simply, this means, for example, organizing vocational training courses intended to give women who attend them a qualification in a traditionally male profession. The Court is telling us explicitly that positive action may be aimed at improving the opportunities of women and have gradual systematic effects, but must not be intended to achieve actual equality by a measure creating an immediate result. In other words, and to put it more bluntly, Community law on equality falls into the trap of its own internal logic, which cannot lead to substantive equality. This decision by the European High Court demonstrates the absolute need to choose a different basis and tool for the law on gender equality. We must abandon a system that theoretically claims to guarantee equal rights for people, without allowing substantive equality between women and men. Quite the opposite, in fact, a new basic right, unprecedented in the Community legal order, must be resolutely established, with the prime objective of equality of men and women. The construction of legal equality between the sexes in contemporary law is based on a false presupposition. Acknowledging the importance granted in the twentieth century to human rights, it was proclaimed that every human being should be guaranteed equal rights. The problem of political, social, or economic equality between various human groups led the lawyers to attempt to reestablish a balance between the condition of members of the group suffering discrimination (blacks, migrants, slaves, and so forth) and that of members of the “ normal” group (whites, nationals, free men) by recourse to instrumentalization of equal treatment in the law without distinction based on grounds of race, national origin, social status, and so forth. Historically, the construction of equality between the sexes was based on the presupposition that women belong to a less favored or minority group, to which an antidiscriminatory approach of formal equality should be applied. However, the analysis in terms of gender

Parity Democracy— Law and Europe

73



of legal equality must be based on an obvious fact. Neither women nor men are separate human groups, but women and men are the human species. They are human society, and sexual duality transcends all human classes, categories, or groups. Parity, as the accomplishment and achievement of gender equality, derives from the fact that women and men are the two components— with equal dignity— of the human race. The corollary of this change in paradigm is the requirement for equal status for women and men in all spheres of life in society. This entails the obligation for the public authorities to adopt measures aimed at achieving de facto equality in favor of women, and, in particular, to guarantee equal participation of women and men in political, social, administrative, and judicial institutions and bodies. The present analysis intends to present a critical reflection about the conceptualization and instrumentalization of the laws on equality between men and women, founded on a universalistic, formal, and antidiscriminatory approach. The Legislation on Equal Opportunities for Men and Women: A Critical Assessment Critique of Contemporary Legal Theory on Gender Equality To understand the successive generation of laws that claim to guarantee equality between men and women, a historic vision of the construction of the law on equality is indispensable. This confronts us with something shockingly obvious. Equality between the sexes has been incorporated into contemporary legal systems through a series of separate legal texts dealing with specific fields. Equality of men and women has never been agreed upon, acknowledged, and granted once and for all in every field of life in society. The ideal of equality between women and men has never been, and is still not, recognized as a basic principle of legal nature. However, partial equality has been granted to women in response to certain needs considered essential at a particular time. Women’s right to equality has been built up step by step, as equal pay preceded equality of treatment in working conditions or in the social security schemes, which made it virtually impossible to achieve. Since the beginning of this century, the right to equality of men and women has had an incremental, non-linear development. Its definition, interpretation, and application have been characterized by legal concepts and tools incapable of producing the desired results. The critique of the legal theory of equality and the analysis

74

Eliane Vogel-Polsky



of its historic development show a dysfunctioning in the conceptual tools of the dominant legal culture. From the conceptual viewpoint, legal theorization of the law on sexual equality, which has developed during the twentieth century, has been impregnated with an anti-discriminatory approach, which often leads to a deadlock. Equality before the law. The development of the right to equality has its origins in the recognition of formal equality among citizens— equality before the law. The legislator operates via classifications, properties, and relationships. It is the legislator who decides the individual and collective characteristics of the beneficiaries of the law. This is a segmented logical approach. It can accommodate the most flagrant substantive inequalities, which it justifies legally by excluding certain persons (for example, women, foreigners, Jews, blacks, and so forth) who are deemed not to have the characteristics chosen for the classification. Therefore, these groups cannot hope to have equal protection from a law that does not cover them. Frequently, the law sets different standards according to gender, thus creating two sociolegal categories under which each could hope to benefit from equality before the law, but a law with different norms (for example, the differentiated status of spouses within marriage, divorce, and so forth). These laws quite obviously did not consider women as similar to men, and their difference in sex was a justification for making a legal distinction. Equal treatment in law. In a second stage, the equal treatment of citizens or people, accompanied by a ban on discrimination on grounds legally recognized as illegitimate, made an appearance more than 150 years after equality before the law. The whole logic of antidiscriminatory systems relies on a basis that should be clearly identified. Discrimination (defined generally as “ any distinction, exclusion or preference based on grounds” ) is not prohibited, and is even inevitable in the complexity of social, political, and economic relations. What the legal system of abstract equality does is to ban discrimination on prohibited grounds. As long as discrimination is not qualified as illegal, then it is legal. It is actually the law that qualifies certain grounds for discrimination as illegal. The ban on discriminating on grounds of sex appeared later, and in a different way, than grounds such as race, religion, or social origin. Sexual discrimination was banned in a fragmentary manner. The characteristic of gender as a discriminatory factor is constantly understood and inter-

Parity Democracy— Law and Europe

75



preted according to the prevailing conceptions and social values at a given time. Moreover, treating discrimination on grounds of sex the same as other grounds such as race or religion is like ignoring social relationships constructed by gender. In fact, the legal logic appears to be seriously flawed once sex is only considered as a possible criterion for discrimination. Instead of considering an obvious fact— the sexual duality of the human species— the legal system uses the logic of eliminating one criterion among others. The expectations and requirements of society are different for women and men, and result in differentiated practices, attitudes, and customs. Therefore, it is not enough to ban discrimination based on sex. We can see that antidiscriminatory procedures and mechanisms do not work in the same way when other grounds are involved (which always refer to a person of a particular sex) and when gender grounds are concerned. Treating sex as another classification (such as race, color, religion, and so forth) reduces women to a classified category like the other groups covered. The difference between the sexes is overlooked and rejected, with the result that no notice is taken of the fact that the access to rights is different for men and women, owing to the conditions of socialization and the social relationships between gender in every sphere of life. Such an approach totally camouflages a flaw in the logic— sex cannot be a category like the others, because it appears in all the other categories that apply to gendered people: a black man or woman, a Jewish man or woman, and so forth. Certain constitutional texts (they are rare) state that men and women are equal in law or have equal rights. This is profoundly different from a basic right to equality of women and men. In the former case, positive action measures or quotas are difficult to tolerate, unless it can be demonstrated that there are exceptional circumstances that allow a preferential measure to be taken for one sex, as a limited and temporary measure. In the latter case, positive action (including quotas) is not only authorized, but constitutionally imperative. The public authorities and individuals must take positive action to guarantee the basic right of women and men to equality. The evolution in interpretations of discrimination made by the supreme cour t s and tribunals shows clearly the limit s of the antidiscriminatory approach and its failure to guarantee effectively the equality of women and men. Equal opportunities and equal results. This is the issue of positive action. Because the mere existence of a legal system for equality is not

76

Eliane Vogel-Polsky



sufficient, it is also necessary to ensure that positive action be placed on the agenda of the public authorities, economic and social decision makers, and the social partners in the workplace. On the one hand, the problems are legal and theoretical: •

•

they arise from contesting the legality of preferential measures aimed at one gender that would jeopardize the formal equality of those subject to the law— abstract or asexual individuals— before the law; they relate to the enormous difficulty in imposing these measures by binding legal provisions and on the limited and constantly challenged character of positive action programmes undertaken in a voluntary and erratic manner.

On the other hand, there can be practical problems: it is not possible, via a positive action programme, to change the social relationships that determine the working conditions of women, as well as their situation in the private sphere and their status in the public sphere. Segregation of women in the world of work has its origins in all the social relationships of gender, in the impregnation of stereotypes conveyed by the school system, the family, and the media, and in the virtual exclusion of women from the forums of economic and political decision making. The definition of positive action adopted by the Council of Ministers for the EC Directive on equal treatment shows clearly a negative and minimalist approach to positive action. Preferential measures constitute legal derogations from the individual principle of equal treatment between men and women, provided that they are temporary measures destined to remedy de facto inequalities affecting the opportunities of women in working life. Since it is a derogation from the principle of equal treatment, positive action must be interpreted strictly and must obey the principle of proportionality. This is in no way an imperative mandate to act with a view to achieving equality. The Kalanke ruling provides a striking example of the fruitless task of sexual equality. According to this ECJ ruling, the Community law on positive action does not have the objective of equal results, and, therefore, it opposes any measure that would favor women to the detriment of the formal equality of treatment between men and women. The political and social consensus on the objective of equality between the sexes appears to be unanimous, but the machine seizes up whenever it is a question of adopting positive action to address its efficiency and effectiveness in terms of results.

Parity Democracy— Law and Europe

77



Equality between the sexes will be paralyzed, until it is recognized as an autonomous basic right and as long as the legality of specific measures aimed at equality is caught up in an analysis that argues that such measures must not violate the equal protection by law of all citizens, without distinctions on grounds of gender. Equal Treatment in the Community Legal Order To illustrate the stumbling blocks and conceptual weakness of the contemporary legal construction of equality between the sexes, it is interesting to examine the variable geometry of the principle of equal treatment within the structure of Community law. This analysis enables one to grasp the importance of adopting a totally new legal basis for equality between the sexes, which would have the strength of a fundamental right and would no longer operate in circumstantial and fragmentary ways. Community law recognizes three different types of equal treatment of persons: • • •

Equal treatment of Member State nationals, free from discrimination on the grounds of nationality; Equal treatment of migrant workers from Community Member States; Equal pay for the same work for male and female workers.

Equal treatment on the basis of nationality is based on a quasi-constitutional principle of equality before the law and within Community law, while equal treatment of migrant workers is based on the ‘free movement of people,’ which is one of the pillars of the Community edifice. Given their respective ends and their legal bases, these equality norms have received a particularly extensive teleological interpretation by the Court of Justice in favor of the categories of persons to whom they are addressed. But this is not the case for the equal treatment of male and female workers. Equal treatment of Member State nationals. Equality of Member State nationals without discrimination on the grounds of nationality is defined by Article 6 of the Treaty of Rome. On this basis, the Court of Justice has developed a remarkable line of case law by recognizing the self-executing nature of Article 6 and forbidding a Member State from placing a national from another State in a legally or factually disadvantageous situation relative to the way a Member State national would be treated in the same

78

Eliane Vogel-Polsky



circumstances. The Court considered that all discrimination based on nationality was illegitimate, and equality elaborated in Article 6 carried an obligation of result to the benefit of Community nationals. Conversely, where equality between the sexes was concerned, the ECJ has considered discrimination against female workers as justified when shown to be motivated by the general social policy objectives of a Member State. Equal treatment of migrant workers. An entire chapter of the Treaty of Rome is devoted to the free circulation of workers, and equal treatment, as defined by Article 48, has been established as one of the most important principles. Equal treatment for migrant workers is based on a general conception— to assure the equal treatment in one Member State of a national from another Member State in all aspects directly and indirectly linked with professional activity.7 Article 48, and Community acts taken under it, implement a fundamental principle of the Treaty that national jurisdictions must safeguard and which must prevail over all contrary national norms.8 The free movement of workers constitutes one of the foundations of the common market and gives an exceptionally strong legal basis to the principle of equal treatment of employees and their families. In effect, Council Regulation 1612/68 clarified the content of the right to equal treatment, while the ECJ developed the fundamental principles. Consequently, equal treatment entails the integration of migrant workers in two senses: •

•

The extension of workers’ rights to include rights and advantages that are not directly linked to the carrying out of a profession (housing, support from public authorities, fiscal advantages, social advantages— whether or not they are linked to the employment— guaranteed old-age pensions, certain civil rights). The extension of the right to integration into the host country to members of the worker’s family.

The implementation of equal treatment of migrant workers is principally carried out by the adoption of Regulations; that is, by an instrument of Community law that is totally supranational, having general application, obligatory in all its elements, and directly applicable in all Member States.

Parity Democracy— Law and Europe

79



By contrast, the corpus of Community instruments whose aim is the realization of professional equality between the sexes is composed of Directives— that is, instruments that are binding only as to the result obtained and that leave to national authorities the choice and form of methods. Equal pay for equal work (Art. 119 Treaty of Rome). The evolution of the Community law construction of professional equality between the sexes illustrates the constraints, which result from an insufficient legal basis. Equality of men and women does not constitute a fundamental right, but is, instead, fragmented, diachronic, and conjectural. Can we really think of it as a right? Its very nature is denied. For female workers, equal treatment became an element of Community law only eighteen years after the adoption of Article 119. The development of legal bases and justifications was a slow process of which the Court of Justice was a key actor. Moreover, the legal culture underlying professional equality between the sexes differs profoundly from that which underlies equal treatment for migrants. For the majority of Member States and for the Commission, which abstained from bringing any actions for failure to act for more than fifteen years, Article 119 was a provision with a purely programmatic character, whose vulnerability stemmed from its position in the Treaty— in the weakest chapter dealing with social policy. For very few others, Article 119 was, on the contrary, a directly applicable provision of Community law (Vogel-Polsky 1967). It should be noted that this was the only provision that was the object of a Treaty violation by Member States by the adoption of a Resolution on December 30, 1961, which modified Article 119 without observing the revision procedure laid out in Article 236 of the Treaty. It was necessary to wait until the second Defrenne decision in 1976 for the Court to recognize that equal pay as laid out in Article 119 was binding and embodied both economic and social goals.9 The Community legislation relating to the equality of the sexes reveals some conceptual defects in the principle of nondiscrimination, which prevail in the current legal system. Equality of the sexes has a negative content, as it prohibits discriminatory treatment but it does not permit the recognition of an autonomous right to equality of men or women. The prohibition against discrimination certainly serves to eliminate intentional, direct discrimination based on sex, but it does not allow the elimination of indirect inequality, resulting from gender. When equality between men and women is legally instrumentalized by a system that abstractly proclaims a formal equality of treatment for all legal subjects, and these subjects

80

Eliane Vogel-Polsky



are defined as extra-societal and interchangeable individuals, the system in some ways programs in its own inefficacy. If one has to demonstrate that discrimination is principally motivated by sex, this obliges the victim to provide the proof, while the discriminator can defend himself by alleging that his motivation was independent from sexual discrimination, that this was only a secondary unintended consequence— because he can, for this purpose, introduce objective reasons that may be economic, or social, or other.10 Among the differences in treatment that have been discussed before the courts and tribunals in Europe, equality of the sexes has never been understood as a fundamental right the nonrespect of which would be inadmissible. On the contrary, the presentation of the respective roles attributed to the two sexes is far more often used to justify ‘objectively’ some form of indirect sexual discrimination. The Community has not been provided with the necessary means to achieve sexual equality. Its system of equality is simply a copycat version of the most outdated form of State feminism, whose agenda is the integration of women as a group at risk in the world of work. This approach leads to a series of policies inspired by strategies of assimilation and conciliation of the professional and domestic responsibilities of women, which inevitably serve to reinforce the social relations between the sexes in terms of the sexual segregation of roles, tasks, and responsibilities. The Amsterdam Treaty changes the legal status of equality between men and women. The enunciation of the missions of the European Community has been modified and, for the first time, includes the principle of equality between men and women. This is important because it introduces a general competence, which is applicable to all Community policies and is no longer limited to the sphere of professional activities. But the status of sexual equality is still vague and is resumed in the stipulation that “ the Community must seek to eliminate inequalities and to promote equality between men and women.” The wording “ seek to eliminate . . . and to promote” effectively substitutes an immediate and effective equality. It substitutes equalization to equality. In the Amsterdam Treaty there are also modifications to Article 119 that legitimates positive action for the underrepresented sex in matters of employment and occupation.11 This new wording (the restricted sense of the underrepresented sex) could be very harmful to policies and measures for equality in Scandinavian countries, which are usually devoted specifically to women. Time will tell, but there is an incontestable danger of conflict between Community law and national legislation. The new wording of Article 119 upholds the perception of positive action as representing an impairment to the principle of formal equality,

Parity Democracy— Law and Europe

81



closely linked to the concept of progressive equalization. It is the same approach that was adopted in Directive 76/207. The recent Marshall decision, handed down by the ECJ, authorized the positive measure questioned by the litigation, precisely because it considered that the measure would not bring about equality of results.12 Finally, another addition to the Amsterdam Treaty is related to the ban on various types of discrimination, including discrimination based on sex. Unlike the previous Treaty’s provision banning discrimination on the basis of nationality, it is not self-executing and stipulates that any antidiscrimination measure must be unanimously adopted by the Council of Ministers. The lack of unanimity, which frequently occurs in the Council (particularly on social policy and equality between men and women), will indefinitely impeach any implementation at EC level in areas other than professional activity. There is no case where a person who is discriminated against could directly invoke this provision in national courts or in the ECJ. Within the European Union, there is still a long way to go. As demanded by many women’s lobbies and even by some Member States, the European Union must recognize equality of men and women as an autonomous fundamental right and not as a benevolent compliance. This right implies that we must put an end to comparison with the masculine referent, typically the ideal model for rights, and define it by the specificity of women’s and men’s gendered relationship in society. European Citizenship According to Democracy Based on Parity The institutional developments within the European Union may be able to revolutionize European democracies by introducing the question of gender into the heart of its citizenship and its democratic procedures. Our proposition is directly anchored within European citizenship but reconceptualizes and transforms it into a vision of European democracies based, in terms of parity, on the right to equality of women and men in all domains of life in society (Vogel-Polsky 1996 and 1997). If equality between men and women really does constitute an essential foundation of democracy, it should be compulsory to ensure, when taking legal or institutional measures, that these conform to this fundamental objective. The recognition of an autonomous right to equality of women and men in the Treaty on the European Union would make it possible to overcome the hitherto insurmountable contradiction between formal equality and real equality. Sexual equality would be constructed on new

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

foundations, and by imposing an obligation as to effective result, would move beyond the constraints and weaknesses resulting from an antidiscriminatory approach. Respect for the human dignity of both women and men would no longer be limited to a pious wish with a purely abstract dimension. It would be anchored on the equal status of the two sexually differentiated components of humanity and on parity, as the organizing concept underlying political and power relations between the sexes (Vogel-Polsky et al. 1994). Moving from the notion of European citizenship inscribed in the Union Treaty, it is necessary to reconstruct the approach toward citizenship considering its two dimensions— a system of values (or a system of expectations) and a way of organizing legal rules and procedures within the terrain of the political system. Substantive Value of Democracy: Equality of Citizens As a central value of democracy I propose a revised concept of equality of women and men. Above all, it is a question of guaranteeing, through parity, “ the inherent dignity and [. . .] the equal and inalienable rights of all members of the human family.” 13 From a legal point of view, equality between the sexes must receive an expression, a content, an interpretation, and a practice in the framework of principles and fundamental rights. Parity cannot be confined to a problem of women’s participation in the spheres of power. Instead, it answers an earlier, more fundamental question—“ Who is the human being referred to in the 1948 Universal Declaration of Human Rights?” In legal terms, this question becomes “ Who is the subject of inalienable fundamental rights?” All lawyers know the law does not have an immutable character. Law is necessarily a contextualized creation. When we say today that sexual equality must be based on parity if it is to be effectively guaranteed, this is neither shocking nor impossible. At this time, it constitutes the societal actualization of fundamental values and democracy. When we affirm that the human being is gendered and the citizen is gendered, we are simply expressing in legal terms the universal character of sexual duality and the social relations based on sex that this produces. Such a definition facilitates the introduction of gender into the structure of law and the legal system, because it is impossible to have a legally abstract person. The legal subject is always defined by virtue of his belonging to a sphere addressed by the law— he is a taxpayer, an employee or self-employed, retired, married (although both spouses will not have the same status), a parent (but there is parental authority and subordina-

Parity Democracy— Law and Europe

83



tion of the mother), and so forth. The law defines the categories to which it applies. However, sex itself does not constitute a sociolegal category. The legal context operates according to sex upon the basis of similarity or identity between legal subjects of the same sex, and always reflects social relations based on sex. The sex of a person is a permanent characteristic, which one could qualify as structural. Because equality constitutes a primordial value of democracy, it is not enough simply to prohibit discrimination based on sex. To simply introduce an abstract equality between nonsexed legal subjects is to fail to understand the importance of the sexual division of tasks, roles, resources, and powers between women and men. Instead, because the construction of a person’s social identity and place in the economic, political, social, and civil order is based on the biological difference of sex, it is necessary to insert gender into the definition of the legal subject. It is necessary to consider this universal and objective “ given,” if one is to materially guarantee equality between men and women. The right to respect and dignity encompasses every person. For this respect to have some meaning in the contextualization of legal institutions, it implies the requirement to establish an equal status for both components of humanity, who are the holders of fundamental human rights. Parity is legally expressed by equal status for women and men. Equal status is contextual, as is everything within the domain of the law. Status is more than simply an ensemble of formal legal provisions. Equal status imposes an obligation of result upon all political and social institutions, that is, it consists of an obligation to act on the public authorities (executive, administrative, legislative, and judicial), who must take the compulsory measures to fulfil their obligations. A Joint Democracy as Procedure: Parity in Democracy Democracy is the materialization of a concept of society as free and as just as possible, which guarantees the autonomy of the individuals, who constitute it. But the autonomy of individuals is impossible without the autonomy of the collectivity. The realization of liberty and equality for human beings implies specific institutional provisions that constitute formal and procedural provisions. It is necessary to introduce at the policy level a binding obligation to equal status for women and men, as well as to representation and participation in the work of institutions of the three State powers. Women should no longer have to strive painfully through quotas to attain a certain threshold, or a certain critical mass, in the assemblies and chambers, governmental institutions and organs of power. The

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

implementation of politics must be based on parity. All social relations are gendered, and one cannot build a democracy that is not, itself, gendered. The requirement of substantive value of equality for all individuals necessitates putting an end to the sexual division of both the exercise and application of power and recognizing the gender of citizens and implementing the equal participation of the two genders in political institutions. Democratic procedures must be considered in this spirit. The democracy of tomorrow must introduce tangible conditions, allowing all gendered legal subjects to effectively exercise their political, economic, and social rights. To adopt representative regimes based on parity is to transcend and move beyond the representation of given groups (women, minorities, linguistic groups, and so forth). Women do not represent women, just as men do not represent men. In a system based on parity, they represent the people— the entire body of citizens. Respect for the dignity of the human being demands that through the medium of immediately obligatory legal rules, the balanced sharing of power on a basis of parity is concretely guaranteed to ensure that the prerogatives of social, economic, and political citizenship can be actively fully exercised. The methods of appointing representatives of the people and of the nation, electoral rules, and so forth are specialized rules, and, as such, they must conform to principles of parity democracy and to the fundamental right to equality between the sexes. Imposing parity would entail a procedural reform, historically acceptable today. It is no longer acceptable to argue that it would threaten the freedom of choice of the electorate or of political parties. Their freedom has always been restricted by specialized organizational rules and legal conditions that have evolved throughout centuries. The fact that specialized rules, which appear sexually neutral, lead to the systematic monopolization of the public authorities and democratic institutions by one sex alone, is sufficient to demonstrate the reason they must be changed to give to female citizens the political power and responsibilities that are essential for the establishment of a true democracy.

Notes

1.

See IPU 1997. The Inter-parliamentary Union (IPU) is the world organization of Parliaments of Sovereign States. As of January 1, 1998, 135 National Parliaments are Members of the IPU.

2.

The Council of Europe came into being in 1949 with all democratic European States. Since the collapse of the Communist governments and regimes, several Central and Eastern European Countries (CEEC) have also been admitted. At present, it consists of forty Member States. The most important Treaty adopted by the Council is the 1950 European Convention for the protection of Human Rights and Fundamental Freedoms.

3.

Sabine de Bethune was the coordinator of a group of fifteen national experts. I was the representative for Belgium.

4.

Council Recommendation 96/694 of 2 December 1996 on the balanced participation of women and men in the decision-making process. OJ No. L 319/11, 10.12.1996.

5.

See chapter 5.

6.

Kalanke v. Freie Hansesstadt Bremen Case C. 450/93 [1995] I-3051. For the first time since the adoption by the Council of Directive 76/207 on equal treatment and equal opportunities for men and women in the professional spheres, the European Court of Justice had to interpret the concept of positive action. See also chapter 2.

7.

See Council Regulation 1612/68 relating to the free movement of Community workers. OJ No. L 257, 19.10.1968.

8.

ECJ Case 118/75[1976]; Case 77/82 [1983].

9.

Defrenne v. Belgium Case 80/70 [1971] ECR 445 and Defrenne v. Belgium Case 43/75 [1976] ECR 455. Mrs. Gabrielle Defrenne was an air-hostess for the Belgian company, Sabena. She was dismissed on her fortieth birthday because the collective agreement provided a resolutive clause linked to age in air-hostesses’ employment contracts only. The stewards, considered to be doing the same work, but receiving a higher salary, were permitted work to the legal age of retirement.

10.

See chapter 6.

11.

See also chapter 2.

12.

Marshall v. Land Nordrhein-Westfalen Case C- 409/95 [1997] I-6363.

13.

First paragraph of the preamble to the Universal Declaration of Human Rights adopted by the United Nations December 10, 1948.

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Chapter 5

 Change in Women’s Political Representation Joni Lovenduski

Introduction The clearest finding of research on women and democratic politics in Western Europe is their underrepresentation in decision-making positions. Study after study reports that there is extensive male resistance to women’s presence in political elites, and that the problems of reconciling the competing claims of personal life, working life, and civil or public life are everywhere more difficult for women than for men. Yet, popular support for a balanced representation of women and men in European government is widespread.1 Why should women have equality or parity of representation? At the heart of this question is the issue of whether women need women to represent them—whether, to paraphrase Anne Phillips and Iris Marion Young, what is said is ever separable from who is speaking. At one time it was thought that women were perfectly adequately represented by the male head of household in whom was vested the authority to rule and represent his family. Until fairly recently, the notion that women had interests separate from their families was controversial. It is now more readily understood that women have rights as citizens and as members of families, and that such rights entitle them to participation in government. There are normative, pragmatic, and difference arguments to support women’s claims to equal political representation. Normative arguments turn on the view that it is unfair for men to monopolize representation. As Anne Phillips has written, no argument from justice can defend the current state of affairs, but there is an argument from justice for parity between women and men (Phillips 1994).

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

Arguments about the nature of representation may obscure this central point, but they can never overturn it. Pragmatic arguments tend to be based on assumptions about the advantages of having more women in politics. For example, they include contentions that women have particular experiences and interests that can only be understood and represented by women, that masculine party images are old fashioned and unattractive to voters, that recent increases in women’s representation will lead to a process of competitive bidding for women’s support from which no political party can afford to abstain. Neither the normative nor the pragmatic arguments include a claim that increasing the representation of women will make a difference in the way politics has been conducted. However, many supporters of increased women’s representation have argued from a third position— that of difference. In their most sophisticated form, such arguments consider the impact of gender on institutions and organizations and contend that political institutions are masculine in their construction and operation; hence, the presence of women will change their character. It is useful to reconstruct this argument in terms of public institutions. When women become members of a parliament or government, they are normally entering a male domain. Political domains are male in the sense that they are institutions that were established and organized by men acting in men’s interest and for men’s convenience. No conspiracy was necessary to exclude women; indeed, often the exclusion of women was not even a consideration. Most long-established parliaments, for example, arose from political processes that were either dominated by men or exclusively male. Later, established assemblies were normally modeled on long-standing legislatures. Thus, through broadly similar processes, parliaments are normally male-dominated organizations. They are carriers of certain traditional kinds of masculinity— the precise kind, of course, varies according to country and culture. Until recently, this institutional masculinity was an invisible characteristic of political institutions, embedded, ubiquitous, but apparently unremarkable to political scientists. Only recently has the masculinity of political institutions become an object of research. Advocates of women’s representation draw on such research to contend that increasing the presence of women in elected assemblies will, once a substantial minority has been achieved, effect at least two kinds of change in politics: changes in the political process, which will become more constructive and less adversarial and changes in policy as decision makers acquire more knowledge of women’s issues and perspectives.

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

Such arguments are matters for empirical research which, in countries where women have established a significant political presence, have demonstrated that changes in political style, discourse, decision making, and efficiency have accompanied the increased presence of women. The difference argument assumes that there is a need for change and that an objective of electing women is to secure change. What kind of change might we expect? There are at least four kinds of change that will make a difference to women— procedural/institutional, impact, representation, and discourse. Institutional/procedural change refers to measures to alter the nature of an institution to make it more woman friendly. Cultural change, such as a greater gender awareness among legislators, should be accompanied by procedural changes designed to accommodate women members. Such increased awareness is not a simple matter of including women, but a more complex process of understanding that women are no more a universal category than are men, that class, age, ethnicity, race, physical ability, sexuality, parenting, and life stage have a determining effect on women’s lives, much the same as they do on men’s. Impact refers to the effects of altering the balance between women and men in politics in terms of legislation and other policy outputs. This includes both putting women’s issues on the agenda and ensuring that all legislation is woman friendly or gender sensitive. Representation change is specific action to secure the continued and enhanced access to the legislature including the encouragement of women candidates, the explicit use of women as role models, the promotion of sex equality legislation, and action to place women in important political positions. They also include changes in political parties that will bring more women into positions of power. Discourse change is both internal and external to political institutions. Not only will efforts be made to alter the parliamentary language so that women’s perspectives are normalized, but also political platforms will be used to alter public attitudes, to change the discourse of politics such that political woman becomes as normal a concept and image as political man. To summarize, supporters of the balanced representation of women and men offer a simple but potentially radical idea, the realization of which promises significant change in the conduct of politics. With the increased presence of women should come substantial changes in institutions, priorities, and the political culture. In this chapter, these claims are considered in the light of contemporary West European politics, first describing patterns of women’s representation and then tracing their origins and effects. It is useful at this stage to make a working distinction between

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

women’s issues and women’s perspectives. Women’s issues are issues that mainly affect women, either for biological reasons (for example, breast cancer screening, reproductive rights) or for social reasons (for example, sex equality or childcare policy). Women’s perspectives, on the other hand, are women’s views on all political concerns. This distinction enables us to consider empirically the performance of women parliamentarians as women’s representatives without requiring resolution of the extensive and difficult debate about biological sex, essentialism, and modern democracy. Women’s Political Representation Political representation occurs in a range of different councils, committees, and social milieus. This discussion concentrates on the place of women in elected assemblies, a good indicator of how much, if at all, a society values the political contribution of women. Patterns of women and men’s representation vary widely in Western Europe, but two common trends are apparent. Women are everywhere less well represented in legislatures than are men; however, in most countries, the proportion of women in elected office is on a rising trend that began in the 1970s in the Nordic states and during the 1980s in most of the remaining countries. Explaining the patterns revealed in Table 1 is a major task that includes reference to political processes and organizations as wide ranging as established political parties, government equality offices, trade unions, and traditional and autonomous women’s movements. Typically, women have achieved increased representation by making claims on political systems, working especially in political parties, but also in Non Governmental Organizations (NGOs), such as women’s associations and interest organizations of various kinds. My research over the last ten years shows clearly that political parties have been the central institutions in increasing women’s levels of representation. Although demands have originated and campaigns developed in numerous other organizational fora, wherever political parties did not act, improvements were limited or nonexistent. Political parties acted only when their women members and voters required it. Action was prompted in the wake of the new feminist movements that began in the 1970s when there was a clear challenge by women who claimed a voice in decision making and pressed for changes in the political agenda. Even in countries in which a widespread and radical women’s liberation movement did not appear, ideas about sex equality were in the

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91

 Table 1. Women as a proportion of elected representatives in west European countries in the lower chambers of legislation 1970s, 1980s, and 1990s.  1970s 1980s 1990s (1997) Percentage Percentage Percentage  Austria 10.0 25.7 Belgium 12.7 Denmark 17 26.0 34.9 Finland 22 31.0 33.5 France 5.9 10.2 Germany 9.3 26.3 (West Germany) Greece 4.0 6.3 Iceland 5 15.0 25.4 Ireland 8.0 12.0 Italy 8.0 11.3 Luxembourg 14.0 18.3 Netherlands 19.0 32.3 Norway 24 26.0 36.4 Portugal 13.0 Spain 5.0 22.0 Sweden 14 28.0 44.0 UK 3.5 6.0 18.2  European Parliament: 364 Source: Frauen Computer Zentrum, Berlin, 1998; Women and Decision-making Network 1993; J. Lovenduski and J. Hills (eds.) The Politics of the Second Electorate. London: (Routledge and Kegan Paul, 1981).

air, inspiring women to seek inclusion in various areas of public life. A model of politics began to emerge that was characterized by the erosion of the separation between public and private spheres of social life. These changes had significant and lasting effects on party politics. Gradually, campaigns for equality gained support, putting three kinds of pressure on political parties. Research on contemporary Scandinavian, German, Italian, British, and French politics shows that improving the power of women requires a combination of pressure from women’s movements and from women organized in political parties. First women’s organizations drew attention to the male dominance of public life and made direct demands for the representation of women. Second, women within parties organized to secure reforms. Thirdly, women voters began to penalize parties for masculine biases and failure to prioritize women’s concerns. An implicit goal of the feminist infiltration of political parties is to secure changes in attitudes about gender both in the party and in the wider

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

political culture. A common strategy is to increase understanding and awareness of gender differences and their implications for power relations. Thus, women in Italian political parties, especially the Democratic Left, were not only active in forcing the implementation of party initiatives favoring women’s concerns but also developed a debate, called the rappresentanza sessuata, about the necessity of a gender-based viewpoint in politics. Similar strategies were employed by women in the British Labour party and in the German Social Democratic party. Demands for party reform met with varying degrees of success. In some countries new issues appeared on party programs, new systems of candidate selection were devised, new means of policymaking were instituted, and new structures of government such as ministries for women, equal opportunities ombudspersons, and publicly funded women’s committees appeared. Although some countries were more receptive to change than others, the changes would not have occurred without the active intervention of women acting to promote sex equality. This can be illustrated with the examples of Norway and Britain. In egalitarian, democratic Norway, for example, a slow trend of increased representation was accelerated by women acting to bring about sex equality. Norwegian feminists were early to advocate the integration of women into the existing party structure as a strategy of empowerment. At the beginning of the 1970s, a “ women’s coup” overturned agreed party preferences (expressed in their places on party lists) in local authority elections and returned three local councils with a majority of women. The implications of this initial display of women’s solidarity were understood rapidly by parties who quickly made commitments to sustained progress in women’s representation. As Hege Skjeie (1993, 231) has recounted, the representation of women grew from below 10 percent of elected officials in the 1960s, to about 25 percent in local and national assemblies by the end of the 1970s, to 35 percent in the early 1980s. The proportion was 36 percent in 1998, and women constituted 42 percent of the Norwegian government. In Britain, demands for equality of women’s representation came later, gathering force in the opposition parties only in the early 1980s. By the 1992 election, Britain had one of the lowest parliamentary representations of women in Europe. But change was on the way. Women seeking to influence the British Labour party mobilized traditional women’s sections in the party and its affiliated trade unions, and formed caucuses in the party and the unions. Such organizations as the Women’s Action Committee, Labour Women’s Network, and EMILY pressed for the representation of the party and, via their contacts in the mass media and

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

women’s organizations, attempted to generate public support for equality of representation.2 In the 1980s, the party pledged equality of women’s representation in all its decision-making bodies and adopted a set of quotas for women in internal party office. After the 1992 election, Labour adopted compulsory quotas of women in parliamentary office. Although quotas were abandoned following a court case brought by a disgruntled failed male candidate, the policy operated for long enough to double the proportion of women in parliament to 18 percent in 1997. The effect was enhanced by Labour’s landslide victory, and observers fear that a “ normal” election will see a reduced presence of women, unless the opposition parties take steps to increase their numbers of women candidates. At the time of writing, Liberal Democrat and Conservative party leaders are considering various means to increase their complements of women Members of the Parliament (MPs), an illustration of the syndrome whereby, when one party begins to consider women, other parties have little choice but to follow. The crucial point, however, is that political parties have been the setting for strategies to increase women’s representation. It is political parties that determine the composition of legislatures in Western European political systems. All are characterized by some form of party government. Political parties are the crucial channels to elected office and they guard jealously their monopoly over the selection of candidates. Although voters have the final say about who becomes a member of the legislature, they make their choice only after political parties have limited the options. Repeated studies of sex and voting indicate that the predominance of men among elected representatives is not the result of voting in general elections, but of party nomination practices. Voters express party preferences and do not, on the whole, penalize particular types of candidates. Thus, much of the explanation of the male dominance of legislatures and governments that characterizes West European politics results from party decisions about who their candidates will be. In this sense, it is parties, not voters, who determine the composition of elected assemblies. Party decisions about candidates are located in a set of formal and informal rules and practices that vary significantly both within and between different countries. It is useful to think of the process of choosing candidates in terms of the two interacting dimensions of supply and demand. This framework distinguishes between the factors that influence the ‘supply’ of candidates willing to come forward and the factors that influence the ‘demand’ of party selectors for different types of candidates (Norris and Lovenduski 1995). Both supply and demand factors influence

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

the nomination of women candidates— that is, selectors in parties discriminate against women but also, in many parties, fewer women than men offer themselves as potential candidates, although rarely are women selected in proportion to their known availability. Supply-side research is limited. Outside of the United States, relatively few studies of candidate motivation have been undertaken. An exception is the British Candidate Study that found that in the early 1990s women party activists were less interested in standing for elected office than equivalent men, and that Conservative women party members were less likely to be ambitious for office than Labour women party members (Norris and Lovenduski 1995). The reasons were complex, and had as much to do with class, education, and political experience as sex. It is likely that the comparatively limited efforts to promote women by their party meant that Conservative women felt less welcome as potential candidates than their Labour counterparts. The different patterns of women’s and men’s political careers illuminate the barriers and obstacles to women’s political ambitions. In many systems, women have not been nominated because they do not have appropriate “ qualifications.” Inhibitions about the appropriateness of their qualifications may prevent women from seeking candidacy. This is an area of some variation. Different countries and parties have developed different political apprenticeships; hence, some require long party service as activists, others require particular kinds of economic or employment expertise, and others seek local ties and knowledge of local issues. Each element of the desired political apprenticeship may have different implications for women and men. In Ireland, for example, the traditional route for women to be elected was (and in Fianna Fail continues to be) kinship with the previous incumbent. This is not uncommon; it used to be termed the “ widow factor” in Australia and in the United States. In the Netherlands, Germany, and in the Italian PCI (Italian Communist Party) and its successors, the long party career is the main qualification for candidacy to the legislature. Requirements for continuous and lengthy apprenticeships tend to favor men. When, under pressure from feminists, party rules alter to facilitate women’s candidacy, normal career paths are often upset. Eva Kolinsky (1993) has noted how the adoption of quotas of women candidates in the German Social Democratic Party (SPD) changed the nature of the political apprenticeship. The Oschentour (slaving like an ox), the long haul necessary to become qualified as a candidate has been sharply reduced. In the SPD, the backlog of “ qualified” women who sought careers was very quickly cleared, after which novices became candidates. In other

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

words, the use of quotas broadened access routes and increased the pool of women who were eligible (Kolinsky 1993). Qualification requirements are, of course, a function both of ideology and organization. Ideology is a less reliable indicator of party support for women’s representation than it once was. Parties of the Left have traditionally been more willing than parties of the center and the Right to make agreements to nominate women and they also appear to be more able to deliver on such agreements. But there are exceptions and an increasing trend for parties across the ideological spectrum to seek ways of promoting women. The structure of a political party is also an important factor in determining whether it will support women candidates. In weakly organized or decentralized parties, leaderships are less able to implement policies to promote women because they have relatively low levels of control over their local branches and constituency organizations, while the leaderships of highly centralized parties have the capacity to place candidates in favorable places on lists or in winnable constituencies. In practice, the localities in almost all political parties have some bargaining power in the candidate selection process, but the amount of local power will vary considerably by the type of electoral system (closed list proportional systems are easier to manipulate than single member, simple majority constituency systems). The level of competition for candidacy also varies considerably by party and is closely associated with party fortunes. But other factors are also important. In Italy, high levels of political competition for candidacy have impeded women’s chances of securing nominations (Guadagnini 1993). In most countries, minor parties with lower chances of electoral success are more likely to nominate women, mainly because they have a limited choice of applicants (examples are the British Liberal Democratic Party, the German Greens). Potential women candidates can sometimes present their outsider status as an advantage. For example, the party crises in Italy and in Britain during the early 1990s were partly about political representation; hence, the issue of women’s representation could be incorporated into debates about restructuring the system. At local and regional levels, patterns are broadly similar. However, in theory and sometimes in practice, women have greater potential to participate in local politics both because the geographic constraints on their mobility are less material than for national politics and because women’s political concerns are most often centered on the locality and the community. Local democracy offers crucial opportunities for political learning. In Sweden, which has the highest proportion of women legislators in

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 Table 2. Women in Local and Regional Councils and Assemblies in the 1990s  Regional Assemblies (1997) Percentage Austria 22.8 Belgium 17.9 Denmark 31.3 France 14.4 Germany 29.6 Italy 16.3 Portugal 11.7 Spain 19.9 Sweden 47.6 Local Councils (Various Years) Percentage Belgium (1988) 14.3 Denmark (1989) 28.1 France (1989) 17.1 Greece (1990) 9.0 Ireland (1992) 11.6 Italy (1990) 9.2 Luxembourg (1987) 7.0 Netherlands (1990) 22.0 Portugal (1989) 9.9 UK (1996) 25.0  Source: Frauen Computer Zentrum. Berlin, 1998; Women in Decision-making Network, 1993.

the world, the equalizing potential of local participation is borne out. In all parties, the political qualification for the Riksdag is local elected office; in this respect, women’s and men’s political careers do not diverge. A similar tendency is becoming apparent in the British Labour and Liberal Democratic parties and is notable in the current candidate selection processes for the new Scottish Parliament and Welsh Assembly. By contrast, in France, the absence of women in elected office may in part be explained by their exclusion from local politics. Local political bases are essential to the careers of French politicians, and there is great competition for appropriate offices such as mayor of a major town. Women have been largely excluded from these competitions and have not, therefore, been able to make the first steps of a standard French political career. Explaining Change Tables 1 and 2 illustrate the comparatively high achievements of Scandinavian women and raise the question of how such representation has

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

been attained. The progress is partly a function of social change, of changes in the structure of the family, of the membership of women in Scandinavian workforces, educational establishments, and so forth. They are also, however, a result of specific government policies and party initiatives directed at achieving equality of women’s and men’s political representation. These policies and initiatives have, in turn, been driven by women making claims. Grassroots women’s movements work on political institutions and in conjunction with feminist activists inside the parties. This relationship is well illustrated by the example of Sweden where, as early as the 1970s, organized women pressed their parties to nominate women candidates and place them in favorable positions for election. They used many tactics. At first they simply put women’s names forward; later they conducted campaigns to promote women candidates and made proposals to get women into better positions on party lists. Finally, they acted as watchdogs and protested wherever reversals occurred. The task of securing substantial increases in women’s electoral fortunes was achieved without recourse to compulsion. Recommendation, arguments, and the threat of compulsory quotas of women brought agreements of targets of 40 percent of nominations going to women. Once the targets were agreed upon and set, considerable progress was made (Sainsbury 1993a). One common tactic to secure change is by ensuring there will be no losers, for example by increasing the size of an assembly or council. Rauum (1995) attributes growth in women’s representation in Norwegian councils to the increased size of the councils and their increased politicization since the 1950s, when women’s levels of representation were very low. Party lists took over from local lists, and parties placed women in better positions. Women moved from councils into leadership positions in the 1980s, when the systems of local committees were rationalized. It is likely that the intervention of the (cosmopolitan) center benefited women (Rauum 1995). The logic of the Nordic women’s strategy is instructive. It followed closely the logic of the political career working on key institutions at each level of the hierarchy. Thus, although in many respects the Scandinavian experience is unique, it also offers some guidance on how to use existing rules of the political game in the drive for the equal representation of women. The essence of such a strategy is straightforward— learn the rules, use the rules, change the rules. Rules refer to the customs, conventions, informal practices, and specific regulations that govern the functioning of a political system. These include the legal framework, the political context, and the nature of the participating political institutions and organizations.

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

Making Change Meaningful: Critical Mass The full development of the rules strategy requires a sufficient number of women in power who are motivated to represent women’s interests and concerns. Feminists have often argued that pioneer women legislators became surrogate men, were socialized into the legislature, and became indistinguishable from the men they replaced. This seems unlikely. Men are known to behave differently when women are absent, the presence of even one woman will alter male behavior, the presence of several will alter it further. Because it upsets gender boundaries, the very presence of a woman in a male political forum is often experienced by men as both threatening and subversive and will produce resistances of some kind. West European experience shows that where women MPs have a mission to bring about change, even small numbers can produce lasting results. Women deputies are often triple representatives. Like all deputies they are expected to act for their electorate and their parties. In addition, their inescapable sex identity produces expectations that they will also act for constituencies of women. Empirical evidence does suggest, however, that at least a significant minority of women must be present before lasting change can be established. This significant minority is typically referred to as a critical mass. Drude Dahlerup (1988) has argued that the test that a critical mass of women is present is whether they accelerate the development of women’s representation by undertaking acts that will improve the situation for them and for women in general. In her studies of women parliamentarians in the Nordic states, Dahlerup found that women politicians worked to recruit other women, they developed new legislation and institutions to benefit women. As their numbers grew, it became easier to be a woman politician and public perceptions of women politicians changed (Dahlerup 1988). As individuals gain experience in political roles, they amass political capital that can be used both to secure further advancement and to assist new generations of women politicians. Inevitably, the presence of women and the introduction of women’s concerns challenge existing arrangements and procedures. Thus, in the wake of the entry of growing numbers of women deputies, parliamentary timetables, places of meetings, childcare provision, working hours, and travel arrangements must be scrutinized for their convenience for women. Political experience is transferable, and there is evidence that similar processes occur in other European legislatures and councils at lower levels of women’s entry as women deputies look to other countries for ideas about reforming procedures and policies.

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

To examine such phenomena more closely, it is useful to return to the four kinds of change that should accompany an increase of women in public office. Institutional and Procedural Change Examples of institutional and procedural changes include alterations in candidate selection mechanisms to include more women, the introduction of the norms of proportionality of women’s and men’s memberships of councils and committees, the establishment of women’s whips and formal or informal quotas of women in organs of collective decision making both within parties and within legislative and government structures. The means of allocating formal and informal decision-making political roles are susceptible to intervention and have been targeted on women’s behalf in numerous European countries. Women MPs may make a point of nominating and voting for women in internal elections, of suggesting women’s names for internal positions, of drawing attention to the absence or relative absence of women in key positions. The tactic of establishing government equal opportunities positions and women’s ministries and their shadow counterparts in opposition parties has been well used by women’s advocates. Between 1992 and 1997, four Labour women MPs were shadow ministers for women in Britain, and all four were appointed to important government positions (two at cabinet level) when Labour won the 1997 general election. Thus, such positions need not, as is often feared, be a ghetto for women but may instead be a means of advancement. Quota systems have been used very effectively in the German Lantage and at local and national levels via political parties in France and Belgium. Belgium is accustomed to quotas in representative bodies, but in more reluctant France the parity movement (which calls for a requirement that women should be 50 percent of representatives) led to the adoption of a 33 percent quota of women nominees by the socialist party and to a record election of women to the National Assembly in 1997 (see Table 1). Where compulsory quotas were politically difficult, voluntary targets were often set. These must include realistic timetables for implementation and mechanisms devised to monitor their implementation. Regular debates on progress are thus institutionalized into the party congress or the parliamentary timetable. As target dates draw near, pressure for implementation mounts, and awareness increases. Changes in procedure may be effective in themselves and may also have a wider impact. It was reported to the August 1997 IDEA conference

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

in Stockholm that, when a woman raises her hand to speak in discussion in the German Bundestag, she is automatically bumped to the top of the list of male speakers. This practice seeks to overcome women’s diffidence about speaking in male-dominated groups by maximizing their potential to participate. It gives all parties at least one good reason for having women delegates. It has become so ingrained among German deputies, that they repeat it without thinking even when outside parliament. More fundamental changes are alterations in issue status so that the parliamentary issue hierarchy affords more status to areas closer to women’s concerns and expertise such as education, welfare policy, and family policy. Typically, women’s roles, interests, and expertises have led them to these less prestigious areas of specialization when they enter politics. This is often cited as a disadvantage for women politicians, and many women MPs believe it is necessary to establish a women’s presence in the more prestigious specializations such as economic and foreign affairs. Against this, it is argued that the distinction between high and low prestige issues cannot itself be justified and should be challenged. Norwegian political scientists have made the important point that describing social policy concerns as weak or soft areas ignores the fact that these interests, where Nordic women are most active and in the majority, account for the largest share of public expenditure. Women choose to specialize in social policy because they prefer it. They do not then shrink from making the very difficult decisions on whether to prioritize the care of the elderly or day care, for example (Rauum 1995). The traditional distinction between hard and soft issues and its associated hierarchy of prestige is old fashioned and inaccurate and is being contested by women representatives. It is gradually breaking down, as all politicians develop a greater interest in social issues. Impact Change In order to discuss the impact of women’s representation, it is useful to draw on the distinction made in the introduction between women’s issues and women’s perspectives. Some research indicates that, although generally the same issues are significant for both sexes, women perceive those issues differently from men. For example, British research in 1996 showed that, although both women and men prioritized economic issues, women were more concerned about part-time work, low pay, and pension rights, while men were more concerned about pension rights. A substantial presence of women is necessary, if a legislature is to reflect

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

women’s perspectives. Such perspectives will inevitably vary by political party. Hege Skjeie (1991) has found that women representatives in different Nordic political parties emphasize women’s issues such as childcare, but they do so from different perspectives and with different policy implications. Thus, for example, Conservative Scandinavian women stress women’s needs as mothers, while socialist parties stress their roles as workers (Skjeie 1991). Recent British research indicates that it tends to be women MPs who ensure that issues such as sexual violence and women’s health are pursued by legislatures (Peake 1998). Output changes seem inevitable, as women become more effective over women’s issues. Once such issues are raised and sustained on the agenda, they rapidly secure the interest of all politicians. Representation Change Rules have been used to increase the access of women politicians in numerous ways. A three-track strategy has become commonplace in European politics, whereby political parties are pressured to nominate women for winnable seats in the legislature, procedural mechanisms are designed to assure the presence of women in a full range of parliamentary positions, and legislation is designed that creates new structures to ensure that women’s interests are represented. The expansion of structures has proved a useful means to secure women’s political presence. Periods of political opposition have presented opportunities to make changes. In Britain during the 1990s, the shadow cabinet was an elected body. Following pressure from women’s advocates, Labour increased the size of the shadow cabinet and introduced a requirement that, to be valid, all ballots cast in shadow cabinet elections had to include a minimum number of votes for women (first 3 and later 4). When the election was won, the women so elected were guaranteed cabinet positions. Dutch experience shows that the creation of parliamentary committees on women’s issues is a means of making room for women. Such committees scrutinize all legislation for their gendered content, hence aid the extension of women’s agendas. Women gain valuable experience as they serve on such committees and in women’s ministries. They bring the sensitivity to women’s perspectives gained in such posts to other jobs, thus extending sensitivity to gender throughout government. Networks of women politicians have been successful in changing party rules to secure women’s representation in parties in Sweden, Norway, Denmark, France, Italy, Spain, the UK, the Netherlands, Germany,

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

Belgium, and Austria. Special measures such as quotas or minimum proportions of both sexes on candidates lists, reserved places for women, and earmarked public funds for political parties to use in promoting women have all been established. Political parties have developed strategies to promote women internally into decision-making positions in the party organization and externally into elected assemblies and public appointments. Generally, European political parties have been more radical, determined, and imaginative in devising policies to bring women into internal party positions than to nominate women as candidates for elected office. Their most effective action has been the introduction of quotas of various kinds. Quotas are (normally temporary) measures designed to overcome imbalances that exist between men and women. In 1992 quotas were used by at least fifty-six political parties in thirty-four countries worldwide, according to the Inter-Parliamentary Union (Leijenaar 1997, 40). The three countries with the highest levels of women’s representation in 1997— Norway, Denmark and Sweden— all contain parties that have used quotas to promote women. The quota strategy is normally introduced in two phases. Initially, targets of minimum proportions of women are set for internal bodies; then, with the support of the newly installed women officials, they are extended to the party’s lists of candidates. In Denmark, the first party to introduce quotas was the people’s Socialist Party, which agreed in 1977 that all party bodies and electoral assemblies should contain a minimum of 40 percent of each sex. In 1979, 64 percent of its representatives in Parliament were women. Quotas were introduced for selecting candidates for the European Parliament in 1984 and for local elections in 1988. Norway also began with quotas of women on party boards, which later made it much easier to adopt such quotas for elected bodies. Both the level of compulsion and the size of a quota are likely to be raised as the idea gains acceptance. The German SPD has a quota of 40 percent for internal party councils and 33.3 percent for electoral bodies. In 1998, the electoral quota was raised to 40 percent. The Dutch Labour Party adopted a recommendation that 25 percent of all seats inside and outside the party should be held by women. In 1985 the recommendation was strengthened to become an official, compulsory quota (Leijenaar 1997, 40– 42). The British Labour Party agreed in 1989 to introduce a quota of women on all internal party bodies— sometimes by increasing the size of the body. By 1993, it was possible, partly because of the support of women by then in quota positions on internal bodies, to introduce and implement a 50 percent quota of women candidates for winnable seats contested by the

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

party, a policy that was overturned in the courts in 1995. French women mobilized in the parité movement in mid-1990s to demand legislation requiring that women constitute 50 percent of electoral bodies, a proposal that met with considerable official resistance, but which also undoubtedly affected the decision by the Socialists to enforce a quota of 33.3 percent women candidates in the 1997 National Assembly elections (Scott 1997, 8– 9). European governments generally have been reluctant to introduce laws compelling quotas of women in electoral office. Belgium is the sole EU exception. However, many countries, including the Nordic states, Britain, and the Netherlands, have formal or informal policies to ensure that women constitute a significant proportion of nominees to publicly appointed bodies. Discourse Change Politics has its own language, a product both of its specialized tasks and the cultures of its institutions. For example, in Britain, the House of Commons has a discourse characterized by formal sets of titles, modes of address, and arcane rules of debate. It also features a barracking, sexist, and lavatorial humor that women MPs have found very difficult when, as it so often is, it is used on them. In recent years, they have dealt with abusive humor by speaking about it and drawing media attention to it, thus mobilizing public disapproval for undignified parliamentary behavior. At the same time, they have been part of the process to modernize parliamentary action and procedure in a process of constitutional renewal that is likely to make British public institutions more woman friendly and its language gender neutral. Wider cultural norms of equality between women and men or discourses of rights, meritocracy, and conventions about representation have been used as resources to alter gender biases in politics. The most important change affecting discourse has been the overturning of implicit rules limiting appropriate topics of debate to matters of an artificially delimited ‘public’ sphere. In cooperation with women’s movements, politicians have extended the political agenda to discussions of domestic violence, stalking, sexual harassment, rape and consent in marriage, the rights of lesbian mothers, and the needs of single mothers, but other subtler changes are also important. Dahlerup (1988) has noted how Nordic women deputies have altered the parliamentary discourse. Before the entry of significant numbers of

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

women into legislatures in Denmark, most politicians did not have the vocabulary to speak about women’s position, sex discrimination, sexual harassment, or sexual violence. Over time in the Nordic states, the increased presence of women has altered styles of campaigning bringing in expressions of warmth and compassion as well as family references (Karvonen et al. 1995). Particularly in times of constitutional crisis, it has been possible to enhance the electoral attractiveness of women politicians by playing on the advantages of their sex identity and outsider status. The image of the woman politician becomes synonymous with modernity, with democracy, and with common sense (for example, Northern Ireland minister Mo Mowlem). As new political entrants, women are often not associated with the corrupt and autocratic practices of collapsing regimes. Instead, they signify honesty, caring, and other images that are associated with reform. Conclusions The phenomenon of increasing proportions of women in politics soon becomes part of changing political images so that politics begins to be regarded as a normal activity for women. To become entrenched, such an attitude shift requires reinforcement in the mass media and agreement by women’s movements that politics is an appropriate women’s activity. As the process continues, the behavior of male politicians appears to change, not least because the requirement to compete with women alters the rules of the political game. The changing patterns of women’s representation in European politics have brought associated radical political changes. At a minimum, the very presence of women in male environments increased gender awareness and altered expectations. But the extent and timing of change has varied with the numbers of women. Numbers are always important— a necessary, if not sufficient, criterion for sustained impact. The evidence thus far available indicates that, as the numbers of women in politics increase, we should expect greater participation by women in all aspects of public life and substantial alterations in the procedures of public institutions and representative assemblies.

Notes

1.

For a comprehensive overview of recent West European research, see Lovenduski and Stephenson 1998.

2.

EMILY stands for “ Early Money Is Like Yeast,” which is a reference to the need to fund women’s campaigns at an early stage. EMILY is a partisan organization; its resources are available only to Labour women. The British EMILY was inspired by the U.S. EMILY, which was in the Democratic Party.

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Chapter 6

 European Equality Legislation on Social Security Julia Adiba Sohrab

During the 1990s, women in the European Union appear to have achieved equality. Significant numbers of women have entered, and will remain in the labor market. Many of the rules that excluded women from employment and social security benefits have now been eliminated. Yet, fewer women than men are claimants of contributory (or social insurance) benefits, and far more women than men are claimants of, or receive, noncontributory benefits or means-tested benefits. Why is this? This chapter offers some insights into the reason that equality of outcomes, in terms of women actually receiving comparable social security benefits to men, is lacking, despite the fact that the European Community has passed equality legislation. In 1979, the EEC adopted a Directive (79/7) on the equal treatment of men and women in state social security schemes.1 Member States were given five years within which to implement it, but it actually required several more years, and many decisions of the European Court of Justice (ECJ), for the Directive’s principles to be firmly implanted within the national landscape of social security legislation. Since the adoption of this Directive, the focus of equality legislation in this area has shifted to occupational social security. Eventually, after several years’ delay, the principles of Directive 79/7 were, broadly speaking, extended to occupational social security schemes by Directive 86/378.2 This Directive, however, contained many exceptions, such as allowing inequalities in treatment to remain in survivor’s pensions and in terms of the determination of pension ages, as well as allowing the continued use of differential actuarial data for fixing men and women’s contributions until 1999. A number of decisions of the ECJ, such as Bilka-Kaufhaus

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

and Barber, found that occupational pensions are, so long as they are not funded by public authorities, covered by Article 119.3 In important respects, therefore, the Directive was superseded by a more effective legal tool. A number of further decisions of the ECJ overruled parts of the Directive, and the Commission decided to put forward a Directive to amend Directive 86/378.4 This new Directive (96/97) was adopted in 1996. It amends the definition of schemes to which the equality principle applies as well as the definition of the working population; and sets forth a list of rules to which the equality principle applies (such as rules determining who can participate in an occupational scheme and setting different conditions for the granting of benefits).5 Three important areas are exempted from the scope of the equality principle— the determination of pensionable ages (which is still within the discretion of national governments); survivors pensions; and repeats the exemption of different actuarial factors until 1999. Because this new Directive merely repeats the decisions reached by the ECJ, however, which must, in any event, be followed, it has little to add to policy in this area. The only other proposal of any significance in this area was made by the European Commission in 1987, and was intended to complete the process of the progressive implementation of the principle of equal treatment in the area of social security.6 Briefly, this draft Directive extended the principle of equal treatment to survivors pensions and family benefits, and provided for the equalization of pension ages. It went some way to establishing the principle that social security benefits ought to be ‘individualized.’ Its explanatory memorandum stated that its aim was to “ promote individual entitlement as an alternative to the extension of derived rights.” The original proposal was that Member States should promote the individualization of entitlements, and particular derived rights, such as survivors benefits or dependents additions, should be equalized as between men and women. In 1989 negotiations began on this proposal. Substantial revisions were made, including the removal of all traces of references to individualization, as was the option offered to Member States to abolish derived entitlements. Nothing further has happened with regard to this Directive to date, and it is understood that officials within the European Commission believe that the entire idea of individualization needs to be rethought, and that any additional proposal on this issue must be advanced in a different form. This article offers insights into the implementation of the Directive on equal treatment in state social security schemes in three Member States:

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

Ireland, Belgium, and the Netherlands. The impact of the Equality Directive is assessed with reference to the question, “ how far has financial independence for women been advanced” in these countries. These countries were chosen both because awareness of the Directive has been high, and many of the references to the ECJ for preliminary rulings on the Directive originated in these countries. The concept of financial independence serves two purposes in this article. First, it is the lack of independent income available to women that constitutes a structural inequality in social security systems and that ought to be tackled. Secondly, the promotion of financial independence for women is the goal, or the evaluative standard, against which Directive 79/7/EEC and its implementation in the three countries is measured. Inequalities in Social Security Facing Women at the Time the Directive Was Passed Direct discrimination against women, and in particular against married women and women cohabiting with male partners, was common before the adoption of the Directive. In Ireland, married women were automatically classified as dependents, if they lived with their husbands. They received lower rates of contributory benefits, for shorter periods, and were ineligible for the means-tested Unemployment Assistance. In the Netherlands, married women were barred from claiming a number of benefits, such as unemployment benefit, incapacity for work benefit, and the old-age pension. In Belgium, the discrimination against married women was less explicit, but in practice entitlement to the most generous levels of social insurance benefits was given to workers with a spouse of the opposite sex with no income from employment or other sources. Key Provisions of the Directive The Directive came into force on December 23, 1984. It covers men and women who are in the “ working population,” defined in Article 2 as workers (including the self-employed) whose employment is interrupted by one of the risks in Article 3(1)(a), such as old age, unemployment, sickness, invalidity, accidents at work, and occupational diseases. Social assistance is covered only insofar as it is intended to replace or supplement the statutory social security schemes set out above. The restriction of the Directive to workers has been emphasized by the ECJ in numerous decisions.7 This is an important limitation on the scope of the Directive,

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Julia Adiba Sohrab



since more women than men leave the labor market for reasons unconnected to the classic employment-related reasons in Article 3(1)(a). The only caveats to this relate to persons seeking employment, who are considered part of the working population, as well as persons leaving the labor market to care for someone in receipt of an invalidity benefit, where both the carer’s benefit and the invalidity can be seen as part of the statutory scheme protecting against the risk of invalidity.8 In 1997, the ECJ rejected the German government’s argument that persons in “ minor employment” (that is, fewer than fifteen hours a week) are not part of the working population because the small earnings they receive are not sufficient to satisfy their needs.9 The Court found that the two women in this case were part of the working population despite the few hours they were in paid work. The case-law of the ECJ is conservative when it comes to whether or not the Directive’s equality principle covers social assistance benefits. In two judgments during 1992, the ECJ tersely rejected the argument that social assistance schemes are covered by the Directive, at least insofar as they provide protection in practice against the risks covered by the Directive.10 The exclusion of general social assistance benefits from the scope of the equality principle is an issue of concern, given that social assistance is increasingly widespread, both in terms of increases in absolute and relative numbers. The household means-test, enshrined in these benefits, causes inequalities of access for greater numbers of women because of their partners’ earnings. Article 4(1) of the Directive provides that “ there shall be no discrimination on the grounds of sex, either directly or indirectly by reference in particular to marital status.” The prescription of sex-neutrality in the three countries forced reforms that allowed in particular married women (or women cohabiting with male partners) to claim benefits for the first time. In all three countries, however, the increased costs resulting from having to extend benefits to women prompted governments to level down provision across the board to all benefit recipients. The Directive also prohibits indirect discrimination, which occurs where rules in practice affect one group more than another and causes them disadvantage. What appears to be prima facie indirectly discriminatory against women, however, can be ‘objectively justified,’ and thus remain lawful, if it can be shown that the difference in treatment between men and women is justified on grounds other than sex. The objective justification test involves the courts in delicate, and often politically highly sensitive, balancing of interests, which may often explain their caution in this

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

area. There are inevitably discrepancies among cases, and the ECJ has shown itself more ready to grapple with obstacles to equality in the workplace (such as rules that indirectly discriminate against part-time workers), than social security rules that impact differently on women. The status of costs as an objective justification has been a particularly sensitive question in several cases before the ECJ. In Roks the ECJ confirmed that budgetary considerations could not in themselves constitute an ‘objective justification.’11 However, the Court went on, EU law does not prevent Member States, in controlling their social expenditure, from withdrawing social security benefits from certain categories of claimants, even if this means that more women than men are adversely affected, so long as the measures chosen to do this reflect a legitimate social policy aim of the Member State, and are both appropriate and necessary to achieve that aim. Implementing Equality in the Three Countries A threefold definition of equality is proposed as a useful framework in which to consider whether or not financial independence has been advanced. It represents different stages toward achieving women’s financial independence: • • •

equality of access (women being allowed to claim the same benefits as men); equality of opportunity (where women in practice are able to build up entitlements to benefits); equality of outcomes (where women actually receive the type of benefits that are conducive to achieving financial independence, such as personal and non-couple-based means-tested benefits).

1. The Netherlands Before the early 1980s, married women suffered three main forms of inequalities of access to benefits in national social insurance schemes. First, they were unable to claim benefits under the tax-financed unemployment benefit scheme, the Wet Werkloosheidsvoorziening, the WWV. Secondly, married women were excluded from claiming benefits under the Algemene Arbeidsongeschiktheidswet (General Law on IncapacityAAW) until 1980. Finally, married women were unable to claim benefits in their own right under the national old-age pension scheme, the

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

Algemene Ouderdomswet, the AOW. Further, rules concerning the reduction of benefits because of years of residence abroad were different for men than for women. In the early and mid-1980s the Dutch government embarked on an important phase of social security reforms (Sohrab 1996). In January 1987, numerous important new provisions were instituted, several of which ‘leveled down’ social security provision. One aspect of the reform affected the scheme for sickness and incapacity benefits. Married women had been excluded from claiming benefits under the national social insurance scheme for incapacity for work, the AAW. The abolition of this exclusion led to a tightening of benefit rules, several aspects of which has been the subject of litigation alleging indirect discrimination against women. The AAW scheme was amended by the Law which came into force on January 1, 1980. It extended entitlement to benefits to married women, provided their incapacity for work occurred after October 1, 1975. Yet, it also introduced a new rule— a past income requirement. The reform provided that after January 1980 new claimants of the AAW, whose incapacity began after December 1979, had to satisfy a requirement of having earned a given level of income over a period of time. Transitional regulations were passed allowing men and single women whose incapacity had begun before this date to receive the AAW benefit under the old conditions. This same right was not, however, given to married women, who were still denied the AAW altogether, if their incapacity began before 1975, and were subject to the income requirement, if their incapacity began between 1975 and December 1979. These regulations were repealed by a law in May 1989, because of a decision of the Centrale Raad van Beroep (CRvB) of January 5, 1988, equalizing the conditions for married women whenever their incapacity began.12 The law of May 1989, however, still sought to limit claims by providing that persons whose incapacity started before 1979, who applied for benefits after 1989 (mainly in effect married women now entitled to the AAW) had to satisfy the income requirement. It was further provided that the AAW benefit was to be withdrawn from persons whose incapacity began before 1979, if they did not satisfy the income requirement. Several Dutch courts have examined whether income requirements are generally indirectly discriminatory against women. Their decisions have revealed inconsistencies and uncertainties, with courts in various cities coming to different decisions on different grounds. The Raad van Beroep (RvB) of Arnhem, which had upheld the part-time workers rule, struck

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

down the income requirement on the grounds that, although the aim of providing a threshold to limit insignificant benefit claims was legitimate, here the rule operated to exclude benefits even where benefits could not be considered insignificant.13 The requirement was upheld by the RvB in Haarlem, but in this case the claimant had not actually lost any income from employment (Blom 1993, 99– 100).14 Eventually, however, in June 1992, the CRvB decided that the income requirement was, in fact, indirectly discriminatory against women.15 The Court held that, although the aims of the requirement were legitimate (that is, to exclude insignificant benefit claims), the threshold itself was not suitable to achieve this goal. However, the Court also accepted the validity of the principle that loss must arise from occupational income in granting an AAW benefit (Blom 1993, 104). In practice, there are still obstacles to women’s entitlement to benefits under the AAW scheme. Married women have not been awarded AAW as frequently as married men or single women— almost 40 percent of claims by married women nonbreadwinners are rejected, which is not true of the claims of married men. To claim a benefit under the AAW, a person must have received earned income during the preceding year equal to fortyeight times the minimum daily wage, thus excluding many part-time workers (Sainsbury 1993b, 21). This is in a context in which significant numbers of women work part-time. The Dutch system is now characterized by significant equality of access to benefits for women, which was achieved by removing the exclusions against married women in several major benefits. However, the reforms do not appear to have significantly advanced equality of outcomes for women. The family minimum still shapes the construction of several benefits (Sainsbury 1993b). The reforms of the 1980s were characterized by considerable leveling down of benefits, thereby increasing the numbers of people finding themselves falling more quickly below the level of the social minimum. This means an even greater role for social assistance, which is itself predicated on a model of the household in which resources and entitlements are aggregated (Sjerps 1988). 2. Belgium In Belgium, married women’s inequality of access to major insurance benefits was less explicit than in the Netherlands and Ireland. In practice, however, the most generous levels of social insurance benefits were given to (male) workers with a spouse of the opposite sex with no income from employment or other sources. Married women were rarely able to gain

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Julia Adiba Sohrab



access to, for instance, unemployment and sickness benefits or old-age pensions. The focus here is on one example— unemployment benefits. Until the passing of the Ministerial Decree of December 24, 1980, the higher head of household rate for unemployment benefits was paid only to workers cohabiting with a spouse of the opposite sex who was exclusively occupied with household tasks (Van Droogenbroeck and Denis 1986). As a result of a complaint to the European Commission by the Comité de Liaison des Femmes, the government changed this provision to make it formally sex-neutral. In effect, however, the outcome was the same. In 1980, a “ worker-head of household” was redefined as: • • •

workers married and living with a spouse who has no income from employment or other income; workers cohabiting with a person of the opposite sex who has no income from employment or other sources; workers living with either one or more children (for whom they receive family benefits) or certain relatives (such as parents, parents-in-law, a son-in-law or a daughter-in-law).

The higher rates were still overwhelmingly paid to men, as were the lower rates to workers living with another worker still overwhelmingly paid to women (Van Droogenbroeck and Denis 1986). The European Commission took over the complaint of the Comité de Liaison des Femmes, and, after a few years, it commenced infringement proceedings against Belgium. The Commission sent its considered opinion to the Belgian government that indirect discrimination existed whenever an apparently neutral measure affected one sex disproportionately, arguing that the concept of head of household could not be regarded as neutral (Ward et al. 1992, 81). The claimant categories were subsequently modified again by the Belgian government in the Royal Decree of August 8, 1986. The reference to head of household was removed, and the following categories created: • • •

unemployed persons living alone; unemployed persons with family responsibilities; unemployed persons without family responsibilities.

This second category of claimant is still paid the highest levels of benefit, while the third claimant category receives the lowest rates of benefit.

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

Ward et al. described the change in the following way: “ this is . . . both completely different and exactly the same” (1992, 81). In fact, the reference to family responsibility in categories two and three can be read as the presence of a dependent (female) spouse or cohabitee. Unemployed persons who cohabit with another adult with earnings from employment are not considered to have family responsibilities however many children live with them, and clearly more women than men fall into this group (De Vos 1990). The European Commission was not satisfied with the 1986 changes and pressed ahead with its infringement proceedings. The ECJ gave its ruling in May 1991, and disappointingly held that it would not interfere with the Belgian government’s discretion in its social policy.16 The claimant categories in the unemployment insurance, as well as in the sickness scheme, therefore, remain unchanged (and unchallengeable as being indirectly discriminatory). To sum up, the Belgian experience shows that making rules sexneutral (or bringing about equality of access) will not necessarily produce equality of opportunity or outcome. The structuring of benefits toward earnings-related benefits, giving higher benefits to breadwinner-heads of households, albeit defined in a sex-neutral way, is a definite obstacle to women in achieving equality of outcomes in terms of financial independence. Married women, for instance, continue to receive lower benefits for the same contributions in Belgium. Van Droogenbroeck and Denis (1986) argue that, although many instances of direct discrimination against women in Belgium have been eliminated, forms of indirect discrimination, in particular those linked to the family status of workers, have been compounded. Challenges to the latter type of rule under the Directive have been singularly unsuccessful, because the ECJ leaves such a wide field of discretion to Member States in determining their social policy. Another problem with negative consequences for women’s access to personal income in Belgium is that the numbers of people falling within the household-based means test in social assistance have increased. The numbers of recipients of the nationally guaranteed ‘Minimex’ (Minimum d’existence), for instance, rose 363 percent between 1976– 1986 (Room et al. 1989, 168). 3. Ireland Ireland has been characterized as a “ strong male breadwinner” system— that is, historically, the Irish social security system has been based on a

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

rigid model of the household containing a male breadwinner and female dependent (Lewis 1992). Married women suffered from a number of specific forms of inequalities of access to benefits. First, they received lower rates of contributory benefits paid for shorter periods. Secondly, wives were considered to be dependents, if they were living with their husbands, regardless of whether or not they were actually financially dependent on them, while husbands could be classed as dependents only if they were incapable of self-support and wholly maintained by their wives. Thirdly, wives were ineligible for means-tested Unemployment Assistance, except where husbands were wholly or partly maintained by their wives and were incapable of self-support, and where married women had at least one dependent child. Fourthly, additions to benefits for dependent children were paid for children who were normally resident with the beneficiary, and children were regarded as normally resident with their father. Fifthly, women social welfare claimants were often denied benefits on the basis of answers to questions about childcare and family responsibilities. Ireland’s implementation of the Directive was “ prolonged, controversial and litigious” (Cook and McCashin 1992, 35). Again, the focus here is on one example— the major round of reforms of 1985– 1986. The reforms were staggered: the equalization of benefit rules took effect in May 1986, while the reforms to unemployment assistance and the redefinition of dependency took effect from November 1986. The first tranche of reforms was effected by the Social Welfare (No. 2) Act 1985. This brought about four major changes: the abolition of reduced rates of benefit payable to married women; the payment of Unemployment Benefit to married women for the same duration as other claimants; the extension of Unemployment Assistance to married women; and a revision of the conditions governing the payment of additions for adult and child dependents under the social insurance and assistance schemes. The second tranche of reforms came into effect in November 1986, when a commencement order provided that additions could only be paid, irrespective of sex, for adult dependents in situations of actual dependency, and that additions for children were to be paid on the basis of equality between male and female claimants. In 1986, this principle was also extended to the means-tested Unemployment Assistance.17 The Minister for Social Welfare had announced that approximately forty thousand married women would benefit from the proposed changes to the additions. Gainers would be families in which the man was working and the wife was already receiving a benefit payment, or where she would be entitled to benefits for the first time. Losers were families where the

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

father was in receipt of benefit and where the wife was either working and earning over IR£50 a week (about nine thousand cases) or also receiving a benefit payment (about eight thousand cases). Losses were estimated to be approximately 20 percent to 26 percent of a couple’s combined income (Callender 1988, 9). This reform was very controversial because it resulted in some significant reductions in benefit, of as much as IR£50 a week for many families (Whyte and O’Dell 1991, 305). The process of implementing Directive 79/7/EEC in Ireland has been described as “ an ill prepared attempt to implement the Directive at the least possible cost to the State, followed by a panic-stricken effort to alleviate the worst effects of this policy” (Callender 1988, 14). The changes were “ achieved at the expense of many families on inadequate welfare incomes who suffered a reduction in those incomes consequent on the redefinition of adult dependant” (Whyte 1988, 58). Equality by leveling down hit some of the most deprived and marginalized families in Irish society (Cook and McCashin 1992). It has been argued that the November 1986 changes, and the consequent financial losses to many families, caused “a ‘backlash’ against women for ‘looking for equality’ and ‘bringing down men’s payments as a result.’” (Callender 1988, 13). Implementation by leveling down meant that new rules were introduced into the social welfare system that have tended away from women’s access to personal income. For instance, despite the 1986 reforms, marital status was retained as a condition affecting entitlement in three meanstested schemes. On the other hand, the changes resulted in a redirection of welfare income to other claimants, mostly married women. The reforms have also had the potential of improving the situation of other groups, such as families on Unemployment Assistance or Supplementary Welfare Allowance, relatives caring for pensioners and, paradoxically, some unemployed men (Whyte 1988). Some Concluding Thoughts In all three countries, as we have seen, there remain obstacles in the way of specific groups of women achieving financial independence from social security. There are still numerous important rules and conditions governing entitlement to benefits in the three countries which, although sexneutral, are harder for women than for men to satisfy owing to their different work and caring patterns. First, where the most generous benefit

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

rates are structured around the breadwinner or head of the household, then fewer women than men will qualify. In Belgium, in the unemployment and sickness insurance schemes, the highest benefits are still paid to workers living with dependents and no income, and the lowest benefits are paid to workers living with a person with another income. Second, there are thresholds in a number of systems that workers must satisfy to enter the contributory benefit or social insurance system. In the UK, for instance, women find it harder than men to meet the eligibility conditions for contributory National Insurance benefits. Hakim (1989) estimated that women are seven times more likely to be outside the tax and national insurance thresholds than men. Third, means-tested benefits in all three countries are subject to a household income test. Considering the differences in employment between men and women, many women living with their husbands or partners may be unable to claim these benefits because of their partners’ earnings. This increases women’s financial dependency on men. Current trends in welfare provision will only exacerbate this, where means-tested benefits across these countries are widening their field of coverage at the expense of contributory benefits. These difficulties are compounded by the fact that benefit systems play a part in encouraging particular choices of gender roles (Taylor-Gooby 1991). That is, men are encouraged to take up full-time work, and women are encouraged to do the caring work. Numerous factors may contribute to this, such as the low wage-replacement levels for benefits linked to caring. Labor market inequalities make it rational for many women, rather than their male partners, to give up employment to care for children or others. Limited recognition of care work as a basis for building up individual benefits may also encourage financial dependence on men in the longer term. Moreover, where men receive means-tested benefits, this may have a negative impact upon their female partners’ work incentives. Research in the UK has shown this effect because, where female partners engage in paid work, their earnings may be high enough to cause a decrease in benefit but not high enough to support the household (Morris 1987; Dilnot and Kell 1989; McLaughlin et al. 1989). The Directive, as well as the way in which the ECJ has interpreted it, still has a number of important limitations from the point of view of advancing women’s financial independence. Its scope is limited to the working population, which still perpetuates the dichotomy between paid and unpaid work that leads to many women not gaining the same entitlements to benefits as men. Although the principle of equal treatment forced

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

the removal of the most overt forms of discrimination against women, many inequalities continue to exist in the benefits actually received by men and women. Further, in many cases, the equality reforms have been effected by means of a leveling down provision, which has itself in some cases had the effect of perpetuating or creating forms of indirect discrimination. It has been difficult to challenge forms of indirect discrimination through the courts because the ECJ has often— in cases involving indirect discrimination not linked to part-time workers— been reluctant to interfere in national social policy. In summary, therefore, although some important gains have been made, and a very important principle— that of equality of treatment— has been firmly rooted within national social security systems, much change is still necessary before women’s financial independence is advanced through social security.

Notes

1.

OJ No. L 6/24, 10.1.1979.

2.

Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ No. L 225/40, 12.8.1986.

3.

Case 170/84 [1986] ECR 1607 and Case C-262/88 [1990] ECR I-1889.

4.

Coloroll Trustees v. Russell and others, Case C-200/91 [1994] ECR I-4389; Ten Oever v. Stichting Bedrijfspensioenenfonds voor het Glazenwassers-en Schoonmaakbedrijf, Case C-109/91 [1993] I-4879.

5.

Council Directive 96/97/EC of 2 December 1996 amending Directive 86/378/ EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ L 46/20, 17.2.1997.

6.

Proposal for a Council Directive on completing the implementation of equal treatment for men and women in statutory and occupational social security schemes. COM(87) 494 final.

7.

See the Cases of Achterberg te-Riele v. Sociale Verzekeringsbank Amsterdam [1989] ECR 1963; Drake v. Chief Adjudication Officer [1989] ECR 1995; Verholen and others v. Sociale Verzekeringsbank Amsterdam [1991] ECR I3757.

8.

See Johnson v. Chief Adjudication Officer, Case 31/90 [1991] ECR I-3723; and Drake (note 7 above).

9.

Nolte v. Landesversicherungsanstalt Hannover, Case C-317/93 [1997] IRLR 225; Megner and Scheffel v. Innungskrankenkasse Vorderpflaz, Case C-444/ 93 [1997] IRLR 236.

10.

See R v. Secretary of State for Social Security ex parte Smithson [1992] ECR I-467 and Jackson and Cresswell v. Chief Adjudication Officer [1992] ECR I4737.

11.

Roks and others v. Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen and others [1994] ECR I-571.

12.

The Raad van Beroep (RvB) are the first tier in the court system to deal with social security cases. Appeals from these courts go to the Centrale Raad van Beroep (CRvB), which is the highest court of appeal in social security matters.

13.

RvB Arnhem 13.9.1990, RSV 1991, 83.

14.

RvB Haarlem 5.1.1990, RN 1990, 105.

15.

CRvB 23.6.1992, NJB 1992, 313.

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 16.

Commission v. Belgium [1991] ECR I-2265.

17.

SI No. 365/86 Social Welfare (No. 2) Act 1985 (section 6) (Commencement Order) 1986.

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Chapter 7

 Gender, Flexibility, and New Employment Relations in the European Union Francesca Bettio Jill Rubery Mark Smith

Introduction Many of the policy developments and proposals during recent years have been directed toward increasing labor market flexibility in the European Union (EU). Consequently, there has been a proliferation of flexible jobs across the EU for both women and men; part-time work has continued to increase in nearly all countries, temporary contracts have become particularly important for those entering employment either for the first time or from a period of unemployment. At the same time, flexible arrangements have expanded at the firm level that are disguised by the simplistic categories of full and part-time and various contractual statuses, such as annualized hours, variable hours, and on-call contracts. This chapter examines comparative employment patterns of women and men in the European countries under the lens of flexibility, which is understood here as a ‘measure of deviation’ from the norm of full-time (and male), indefinite duration, with a fixed, daily schedule. Contractual arrangements and working time are thus the main concern of the chapter, while flexibility of the wage structure is an indirect concern. The discussion is policy oriented, but is supported by an extensive discussion of current employment patterns. From a policy perspective, labor market flexibility is heralded as offering a solution to three main sets of problems—competitiveness, compatibility

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

between work and family life, and unemployment. Thus far, competitiveness has been the overriding concern, generating both the incentives and the opportunities for employers to restructure employment relations through increased flexibility (OECD 1986). We will refer to this objective as employer friendly flexibility. In contrast flexibility over the life-cycle is regarded as offering the most employee friendly package of provisions aimed at reconciling work and family life (Hewitt 1993; Alaluf et al. 1995). Unemployment has increasingly acquired priority status in the policy agenda of governments and social partners across Europe, and innovative forms of working-time reduction or work sharing are also increasingly regarded as constituting a form of employee friendly flexibility capable of tackling the problem of unemployment (Taddei 1995). Among these three strategies, gender is an explicit concern mainly for flexibility over the life-cycle. Drawing on the work of the European Commission’s Network of Experts on the Situation of Women in the Labour Market, we argue in this chapter that, in fact, all strategies are pivoted on the existence and often the reinforcement of gender divisions in the labor market. The reinforcement of these divisions, however, is neither essential nor inevitable in effectively addressing the problems of competitiveness, unemployment, or the conflict between family and work. The first part of the chapter argues that, although in each country flexibility arrangements show a clear gender divide, the intercountry dispersion suggests that there is plenty of room for innovative change. This step in the argument involves an extensive review of the extent and form of employment relations and working time arrangements across the fifteen EU countries and their relationship both to patterns of labor market organization and to patterns of employment over the lifecourse. The second part of the chapter closely observes the three strategies— employer friendly flexibility, flexibility over the life-cycle, and working-time reduction— evaluates the outcomes of these strategies and, where relevant, identifies possible alternatives. Flexibility by Gender and Societal System The extent and form of flexible employment depends upon both the system of gender relations and the wider societal system, including in particular the system of labor market regulation but also the pattern of family and social organization. Women tend to be disproportionately represented in flexible employment, and this greater involvement in flexible jobs is based around both

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

the notion that women are not necessarily fully responsible for their own subsistence and that women should take primary responsibility for domestic life (Lewis 1992). Women are thus assumed to be more able than men to move in and out of the formal economy in a series of temporary or casual jobs, to accept short hours or casual and intermittent work, and to work in the home. They can also act as unpaid family helpers in family businesses. Women are less associated with the standard full-time employment contract around which labor market regulation and social norms have developed. In practice, women are less able than men to extract compensation when their work falls below the standard full-time contract, or, indeed, when they are asked to work beyond their own part-time contractual hours or even beyond the standard full-time contract hours (Rubery et al. 1995). Thus, female labor tends to be more associated with nonstandard employment (with the exception of the full-time self-employed) than male labor. However, if we compare the flexibility offered by men to that offered by female labor, we find that it is not so much the case that one type of labor offers more flexibility than the other, but that the nature of the flexibility on offer differs, as does the remuneration offered in return for flexibility (Rubery et al. 1997). Employers generally recognize a need in the case of men to provide regular and full-time access to work but, at the same time, employers benefit from the presumption that men’s involvement in paid work is given primacy over any domestic commitments. Thus, men are often assumed to be more available for long working hours, for irregular additional hours working— including extra hours at short notice— for unsocial hours working including weekends and night shifts, for annualized hours systems where time off fits with company and not household needs, and for work that takes them away from home for both short and extended periods. Where men resist flexible working hours, this tends to be based on two factors— the need to control the working day and ensure access to protected and consolidated leisure time, and the need to secure a family wage. The standard five-day week with regular shifts has provided a basis by which organized labor has been able to protect against encroachment on employees’ personal time, and to ensure that any encroachment is adequately compensated for. The notion of a family wage has protected men against flexible working, while simultaneously exposing women to greater variability in income and work time; and women’s weaker position in the labor market and in trade unions has left them more exposed to flexibility without compensation.

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

A basic gender division in the new employment relations can thus be identified; for employers women provide a source of labor for short, variable, casual, or interrupted employment; while men offer a source of labor for long hours of work, admittedly based upon higher levels of remuneration. These differences in gender relations to flexibility and working time do not, however, appear to determine the gender division of labor. There is little evidence to suggest that employers structure the sex composition of the workforce according to working-time requirements (Horrell and Rubery 1991). Thus, men may be employed in areas where there are in principle many opportunities for short time or casual work, but where full-time work is in practice usually offered, while women may be employed in sectors where there are considerable requirements for unsocial hours working— for example, hospitals— which might be expected to conflict with domestic commitments. Thus, one important constraint on the spread of new flexible employment forms may be the previous division of labor by gender. Indeed, even when the work tasks performed by men might be more easily subdivided into flexible part-time or temporary jobs, full-time work contracts usually are still offered, or, in some cases, work may be organized on a self-employed basis so that men have the opportunity for full-time employment through working for multiple employers. In the Netherlands, for example, collective agreements ban the use of temporary contracts in construction (Plantenga et al. 1996). However, involvement in flexible or atypical forms of work depends not only on gender but also on the societal system (Rodgers and Rodgers 1989; Bosch et al. 1994). These gender differences are constrained by forms of labor market regulation, including legal constraints on overtime, shift work, and requirements for overtime premia to be paid. Nor are there necessarily strong grounds for assuming that there will be a general convergence toward highly flexible labor markets. Evidence of continued diversity across the EU demonstrates the importance of societal systems in limiting the extent of flexible and deregulated employment, and in mediating its impact on employment outcomes and inequality. Thus, within the formal wage economy, the extent of flexible employment, and its consequences for employees will depend upon the form of labor market regulation. Variations in women’s participation patterns between countries also create different sets of opportunities for flexible employment. Flexible employment may be concentrated in the formal or in the informal sector, according to whether most women are inside or outside the formal wage economy. New technologies, such as teleworking, may blur these

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127



distinctions and create opportunities for new forms of working in all economies. Nevertheless a distinction may still need to be made between those societies, particularly in the South, where the informal sector constitutes a significant form of activity often for both men and women, and most Northern countries where the informal sector is smaller and a more marginal activity. The important characteristics of the societal system that appear to impact on flexible employment include: • •

• • • •

the size of the informal sector; labor market regulations relating to atypical employment, including temporary and part-time work, and relating to employment protection; trade union and employer attitudes toward flexibility; working-time regulations, including constraints on the working week, overtime, and unsocial hours; the pattern of female participation, particularly the extent to which women pursue continuous, interrupted, or discontinuous careers; the industrial system, including the size and organization of the service sector (large versus small family firms, public versus private sector).

Country and Gender Differences in Flexible Working Variations in the employment patterns of women and men can be grouped around gender differences in contractual statuses, differences in working time patterns, and differences in the scheduling of working hours across the day and week. Figure 1 reveals the importance of both gender and societal systems on hours of work. While within each country more men are involved in long hours of work than are women, and more women in short hours of work than are men, these differences do not hold across countries. Thus, more men are involved in short hours working in, for example, the Netherlands and Denmark, than is the case for women in each of the Southern countries plus Finland, the former East Germany, and Luxembourg; and more women are involved in long hours of work in Greece and Portugal than is the case for men in Austria, Sweden, the Netherlands, Luxembourg, and the former East Germany. These data reveal the importance of regulation, both legal and voluntary, in reducing full-time working hours in some countries, while allowing for wider dispersion of hours in others (Rubery et al. 1995). In all countries other than the UK, legal or voluntary

128

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

regulations establish a working-time norm for full-timers, around which the usual hours of full-time workers tend to cluster. In the UK, there is no evident modal number of hours worked by full-timers, and the high share of full-timers working long hours, well above contractual hours, provides a significant source of flexibility to employers. Short hours working also reflects social norms and regulations; in some countries with high shares of part-time working there is a tendency for those jobs to be organized on a short hours basis, fewer than twenty or even fewer than ten, while in other countries with medium to high levels of part-time working— for example, Denmark, Sweden, and France— most part-timers work more than twenty hours. These longer hours for parttimers are brought about in part by women’s preferences for longer parttime work in these countries (O’Reilly 1994), but also by collective agreements that have tended to favor long part-time over short part-time work. Part-timers in short hours work are more likely to be marginalized, and, indeed, in Austria and the Netherlands those working fewer than twelve hours are not included in national definitions of the economically active (Pastner 1996; Plantenga et al. 1996). Looking at the distribution of employment by professional status in 1996, we again find gender and country effects with the share of nonemployees within total employment reaching a maximum for men in Greece at 46.9 percent and a minimum for women in Sweden at 6.7 percent of all in employment (Table 1). Men are more likely than women to be selfemployed without employees and particularly are more likely to be employers (Rubery et al. 1995). Women are more concentrated as unpaid family workers, accounting for 3.4 percent of all EU15 women in employment in 1996, compared with 1.1 percent of men. However, the concentration of self-employment also varies by country. The Southern countries, Ireland, and Belgium have well above average shares in selfemployment for both men and women (except Ireland for women). Excluding the agricultural self-employed reduces, but does not eliminate, these country or societal effects (Rubery et al. 1995). The high levels of self-employment in the Southern countries are related to numerous factors, including high shares of small and family businesses in all sectors and a large informal sector. Within these self-employed or non-employee categories are many different forms of employment, from homeworkers to entrepreneurs. Women are more likely to be found among the marginal forms of self-employment and may not even be included within the statistics, as many experts believe that in the Southern countries more women work as homeworkers or self-employed than is indicated by the data.

New Employment Relations



O ver and under-working of men and women in employment in the EU, 1996.

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Figure 1.

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 Table 1. Professional Status of Women and Men in Employment in the European Union, 1996.  Male Female   Self-employed Self-employed and Family and Family employers Employees workers employers Employees workers  Belgium 18.8 80.6 0.7 10.5 84.2 5.4 Denmark 11.7 88.0 0.3 4.2 93.9 1.8 Germany (W) 12.7 87.0 0.4 6.2 91.6 2.1 Germany (E) 9.8 90.1 0.1 5.1 94.3 0.6 Spain 24.1 73.6 2.3 16.6 77.4 5.9 France 15.1 84.3 0.6 6.6 90.0 3.4 Greece 41.8 53.1 5.0 19.4 56.3 24.2 Ireland 27.0 72.1 0.8 8.2 90.3 1.5 Italy 29.2 68.2 2.6 16.9 76.5 6.6 Luxembourg 10.7 89.2 0.1 6.0 92.1 1.8 Netherlands 13.2 86.4 0.4 8.2 89.7 2.1 Austria 12.4 85.4 2.2 8.8 85.7 5.5 Portugal 28.9 69.9 1.3 24.3 73.7 2.0 Finland 19.9 78.5 1.6 9.8 88.8 1.4 Sweden 16.9 82.7 0.5 6.1 93.3 0.6 UK 17.1 82.6 0.3 7.0 92.3 0.7  EU15 18.9 79.9 1.1 9.5 87.1 3.4  Source: European Labour Force Survey 1996

Labor market regulations, industrial organization, and different patterns and practices of social reproduction are all implicated in the differences between countries in the shares of part-time and temporary employment (see Table 2). Here we see again strong country and gender differences. The share of men in part-time jobs in 1996 was just over 5 percent compared with over 30 percent for women at the EU15 level; yet, the share of men in part-time work in the Netherlands exceeded that for women in all four Southern countries and Finland. Even within the Northern countries there is considerable variety in the shares of women working part-time, and. as we have already seen, in some countries parttime work is associated with relatively long hours and in others with very short part-time work. Countries with the highest shares of part-time work include not only those such as the Netherlands, the UK, and Germany associated with the women returner model, but also Denmark and Sweden, that have more continuous patterns of participation. In Denmark,

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

the shares of women in part-time work fell during the 1980s, while those for men rose, and, in the UK in the early 1990s, the share of core age female part-timers also declined (Rubery et al. 1996). Historically, the development of part-time work has been shaped not only, nor indeed mainly, by female participation behavior but by countryspecific institutions and influences (Maier 1992). These include fiscal policy toward part-time employment, country specific labor market regulations and collective agreements, and the system of industrial organization. Temporary work contracts are also related to labor market regulations. These determine the strength of employment protection afforded to permanent employees, which, in turn, structures the incentives for employers to offer temporary contracts, and at the same time set the conditions under which temporary workers can be employed. In 1996, Spain had by far the highest share of employees on temporary contracts at nearly 37 percent for women and 32 percent for men compared with EU15 averages of 12.7 percent and 11.1 percent, respectively. There is no specific NorthSouth divide over the use of temporary contracts. Portugal and Greece once had a high incidence of temporary employment, which has fallen, and now Sweden and Denmark have the next highest ratios. When looking at gender differences by share of temporary contracts, we find a higher share of women on temporary contracts in fourteen countries and a slightly higher share for men in Austria. However, the gender differences are much smaller than for part-time work, with the gap only rising to four percentage points and above in four cases, while in the case of part-time work, it falls below ten percentage points in only three cases. In almost all countries, and for both men and women, the share of part-time workers in temporary jobs exceeds the share of full-time workers in temporary work. This information is available for 1994 for the EU12 countries only. The two exceptions to this pattern are female fulltime employees in Germany and Denmark who have higher shares of temporary contracts than female part-time workers. Where part-time work is relatively uncommon, the share of temporary work among part-timers tends to be very high. This might imply that where part-time work is less common, less of it is organized on a regular basis. This tendency for a greater overlap between part-time and temporary work applies both to countries where part-time work is uncommon and to differences by gender. Thus, a much higher share of men who work part-time are in temporary jobs, but this still involves a much lower share of male employees. The last column of Table 2 brings together these differences in flexible employment by country and by gender, where the share of both male and

132

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 Table 2. Share of Women and Men in Employment Working Part-time and the Share of Employees in Part-time and Temporary Jobs, 1996.  Share of all Share of all Share of all Share of all employees(both employment employees employees part-time and (part-time) (part-time) (temporary) temporary*) male female male female male female male female  Belgium 3.0 30.5 3.2 34.0 4.5 8.0 0.7 2.9 Denmark 10.8 34.5 11.4 35.1 10.8 11.8 2.2 3.2 Germany (W) 4.0 35.6 3.6 35.7 10.3 10.3 0.7 2.4 Germany (E) 2.1 21.0 1.9 21.4 15.2 17.0 1.6 3.9 Spain 3.1 16.9 2.6 16.5 31.9 36.7 1.6 8.9 France 5.2 29.5 5.3 30.0 11.5 13.9 2.1 5.6 Greece 3.3 9.0 2.6 5.7 10.5 11.9 1.6 2.9 Ireland 5.0 22.1 5.7 22.2 7.1 11.8 3.4 6.9 Italy 3.1 12.7 2.8 12.4 6.6 8.9 1.3 3.4 Luxembourg 1.5 18.4 1.3 18.1 2.4 3.1 0.0 1.9 Netherlands 17.0 68.5 16.7 68.7 9.1 15.9 4.6 12.1 Austria 4.2 28.8 3.0 28.7 8.1 7.9 — — Portugal 5.1 13.0 1.6 8.3 10.2 11.1 0.3 0.8 Finland 7.9 15.6 6.5 15.2 14.1 20.5 — — Sweden 8.9 41.8 8.3 42.6 10.1 13.4 — — UK 8.1 44.9 7.5 44.2 6.0 8.2 1.6 4.6  EU15 5.5 31.5 5.2 32.3 11.1 12.7 1.6+ 4.6+  * N o te: Data refer to 1994 not 1996 and are not available for Austria, Sweden, and Finland. + N o te: Data refer to EU12 excluding Austria, Sweden, and Finland. Source: European Labour Force Survey 1994 and 1996

female employees who are in jobs that are both temporary and part-time are revealed in 1994 for EU12. This dual form of flexibility applied to 4.6 percent of women in the EU12 in 1994 compared to 1.6 percent of men. The interactions between the two dimensions of flexibility contribute to some perhaps surprising findings where apparently different countries result in similar shares of employees in these precarious situations, as an outcome of very different labor market structures. Thus, the Netherlands has high shares of both men and women in this situation largely because of high shares of part-time work, while Spain has the second highest share of women in part-time temporary jobs, largely because of very high shares of temporary work. The proportions of the workforce actually caught in temporary part-time work depends upon a number of dimensions to the employment system. Still, the gender dimension is quite evident,

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

with nearly three times the share of women being found in this highly precarious position compared with the share of men. Various factors contribute to increases in weekend working in many Member States. These factors include a shift of employment to leisurerelated industries, the deregulation of shop opening hours, increasing pressures toward higher rates of capital utilization, and the impact of justin-time production regimes on operating hours and working-time arrangements (Bosch et al. 1994). Figure 2 and Table 3 reveal the pattern of weekend working by gender and by full-time and part-time contracts. Women are more likely than men to work Saturdays on a permanent or regular basis in the EU, while men are more likely to work Saturdays on an occasional or casual basis. Men and women are equally likely to work Sundays on a regular or permanent basis, but men are again more likely to work Sundays on an occasional basis. In 1994, just less than half of all male employees and 42 percent of female employees worked usually or sometimes on Saturdays, about twice the rate for Sunday working for both men and women, respectively. These patterns are largely replicated at a Member State level, although the variations in the incidence of Saturday and Sunday working across Member States are quite strong. There is no correlation, however, between shares working weekends and shares involved in long working hours. Nor is there an inverse relation. This finding may be significant for debates about working-time policy and practice, as new or more flexible working-time arrangements do not have to be combined with either longer hours of work or very short hours of work. Part-time work is used in some countries explicitly to deal with the problem of unsocial hours (see Table 3), but the rate of involvement of part-timers in, for example, weekend working varies markedly between countries even among those with a high use of part-timers. There are many other dimensions to flexibility for which we have no European-wide comparative data. An important dimension to flexibility is the regularity or predictability of working-time schedules. Evidence from individual countries does suggest that fewer workers are facing regular and fixed working time schedules. For example, in France the share of employees working a fixed schedule every week declined from 63 percent to 50 percent in the case of men and from 69 percent to 54 percent in the case of women between 1978 and 1991 (Gauvin et al. 1994). Irregular working time schedules are particularly common for part-timers and of course for “ on-call” workers. In Denmark, for example, 14 percent of part-timers have variations in their working time schedules from week to

134 Bettio, Rubery, and Smith



Figure 2a.

Regular and occasional Saturday working in the European Union 1994.

New Employment Relations



Regular and occasional Sunday working in the European Union 1994.

135

Figure 2b.

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 Table 3. Share of Full and Part-time Employees Working Saturdays and Sundays in the European Union, 1994.  Saturdays Sundays   Male Female Male Female     full- partfull- partfull- partfull- parttime time time time time time time time  Belgium 29.5 36.3 27.3 36.0 19.5 20.6 17.2 19.6 Denmark 43.4 61.2 38.3 50.1 34.4 40.7 28.5 40.9 Germany (W) 34.1 38.6 34.0 31.0 19.0 26.0 17.9 13.3 Germany (E) 39.8 20.9 33.7 34.8 20.5 10.2 18.5 11.6 Spain 34.5 36.2 37.3 26.9 15.7 20.7 14.5 8.2 France 50.9 44.9 46.6 45.7 26.4 23.0 22.2 18.2 Greece 44.5 57.1 33.6 41.2 26.2 24.9 16.4 16.4 Ireland 57.9 48.0 43.1 48.6 30.0 26.1 24.1 25.9 Italy 55.8 56.0 53.8 44.5 20.6 24.7 13.8 13.0 Luxembourg 36.5 43.0 35.1 32.0 20.2 13.0 14.7 10.1 Netherlands 33.3 46.4 35.2 35.9 19.2 23.4 20.9 19.3 Portugal 26.4 31.2 20.2 17.0 13.9 21.8 9.1 6.9 UK 70.9 62.9 53.5 46.7 48.5 38.0 33.0 29.0 EU12 46.6 49.2 42.3 39.8 25.6 27.7 20.4 20.1  Source: European Labour Force Survey 1994

week compared with only 7.5 percent of male and female full-timers (Boje 1994). Women’s greater involvement in part-time work means that more women than men experience variation in hours on a week-to-week basis. This role of part-time work in flexibilization of working schedules is set to increase. There are examples of innovative working schedules being introduced in Italy in service sector firms that involve the use of part-time as well as complex rota systems for full-time workers (Bettio and Villa 1994). Part-time work in Belgium has been legalized where the schedule changes both during the week and from week to week. In France, regulations provide incentives for part-time work organized on an annual basis where the variability of hours schedules can reach very high levels (Meulders 1994; Gauvin et al. 1994). In the UK, there have been experiments with “ zero hours” contracts in service sector firms, and in Portugal similar use of on-call workers is found particularly in transport and telecommunications (Rubery 1994; Lopes and Perista 1994). Although in many cases the numerical incidence of these patterns is as yet quite low, their emergence in a wide range of different institutional settings suggests that, as we discuss below, they will increase in importance in the future.

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137



In numerous countries there is case study evidence of the use of annualized hours (Bettio et al. 1998). The term generally refers to a contract to work a specified number of hours over the year. Most of the hours are usually rostered on the basis of production requirements, but some hours may be held in reserve to allow employers to meet unanticipated needs. Holidays and compensatory rest periods are also usually rostered. In principle, annualized hours can accommodate the need for flexibility of both the employer and employees. In practice schemes are predominantly tailored toward the needs of the employer. However, as such schemes are an attractive proposition for firms they can be used in bargaining at the negotiating table for shorter working time, pay increases, or for forms of employee friendly flexibility. The disadvantages of annualized hours schedules are experienced by both male and female employees and have been summarized as follows— restrictions on choice as to when to take holidays; shift arrangements involving more unsocial hours; variable working-time requiring more complex domestic arrangements; disruption to leisure time owing to on-call arrangements; problems of making domestic arrangements when called into work at short notice; and the overall blurring of the dividing line between work time and personal time. Despite these new methods of adjusting hours to demand, overtime has continued to be an important source of working-time flexibility, even in fact increasing in some countries— for example Italy, the UK, and Denmark— at least until the recession of the 1990s. However, the incidence of overtime varies dramatically by country. For example, in Denmark, even after the increase in overtime working, only 7.5 percent of men and 5.1 percent of women were involved in overtime in 1990, while in the UK in 1992 the share of employees working paid overtime varied from 52 percent and 26 percent of male and female manual workers (Boje 1994; Rubery 1994). Much of the difference in overtime working between countries can be related to differences in the regulatory regime. Fewer women tend to be involved in paid overtime, and the extra hours they work are fewer. For example, in manufacturing in Italy, women’s overtime is roughly half that for men (Bettio and Villa 1994). Overtime for part-timers also appears to be widespread, suggesting their hours are not fully nor mainly determined by either individual choice or family commitments. For example, in Germany, 30 percent of parttimers were found to work overtime at least once or twice a month (Maier et al. 1994). A survey, in France, found that 80 percent of supermarkets were using part-timers to work at least 5 percent more hours than they were contracted for, and often worked many more supplementary hours (Gauvin et al. 1994).

138

Bettio, Rubery, and Smith



Flexibility and the Lifecourse: Variations by Societal System Differences in the involvement of men and women in flexible employment are often attributed to gender differences in lifecourse trajectories. However, while age and other significant characteristics of the lifecourse affect the incidence of flexible employment, the level and form of this involvement depends on the types of flexible employment, on the system of labor market organization, and on differences in gender lifecourse patterns between Member States. These issues can be illustrated according to three types of flexible employment— part-time, temporary employment and self-employment— and with reference to gender, age, and motherhood. In the case of part-time employment, there is a difference in the overall incidence of part-time work by age between the sexes (see Table 4). Most part-time work for men is concentrated in the younger and older age groups— that is, those times when men are not necessarily seeking a family wage and when they may be either engaged in education or already partially retired. However, although there is a similar concentration pattern by age across Member States, there are still significant differences between Member States in the incidence of part-time working among younger and older men. For women, differences are evident in both the age distribution of parttime work and the overall and age-specific incidences of part-time work. This suggests a dual role for differences in women’s life-cycle patterns and for differences in labor market organization in explaining the overall level of part-time working. In some countries where women follow the returner pattern of participation such as Germany and the UK, the twenty to twenty-nine year age group tends to account for a relatively low share of part-timers, while the concentration is much greater among the over thirty age groups. In countries where a more continuous participation pattern is more common, but the overall part-time level is moderately high, such as Belgium and France, part-time rates are more even over the life-cycle. Part-time work is associated both with problems of entry into the labor market— and thus with a form of disguised unemployment— but also with the involvement of men and women in other forms of activity ranging from education to caring. However, in some countries, those engaged in education or caring may be found among the inactive or even among the full-time employed where they have access to childcare. Thus, high levels of opportunities for part-time working cannot be considered essential to establishing high employment rates for mothers, as there is no correlation

New Employment Relations

Source: European Labour Force Survey 1996.



Table 4. The Age Distribution of Part-timers in the European Union, 1996.  Men Women 15–19 20–29 30–39 40–49 50–59 60+ total 15–19 20–29 30–39 40–49 50–59 60+ total  Belgium 9.8 32.4 21.0 15.2 12.0 9.6 100.0 1.0 19.9 39.5 27.7 10.5 1.4 100.0 Denmark 40.4 29.6 9.5 6.5 5.5 8.4 100.0 16.8 15.3 21.2 25.0 17.9 3.9 100.0 Germany (W) 3.9 29.8 23.7 11.6 13.4 17.5 100.0 0.6 11.1 31.5 29.5 23.0 4.3 100.0 Germany (E) 3.1 18.6 18.5 18.6 21.8 19.4 100.0 0.7 15.4 33.4 26.1 21.7 2.8 100.0 Spain 9.8 38.3 16.3 12.3 10.8 12.4 100.0 2.9 27.2 28.0 21.8 13.7 6.4 100.0 France 5.4 29.8 20.8 17.0 17.6 9.4 100.0 0.9 21.8 31.1 28.5 14.8 2.8 100.0 Greece 6.7 24.8 16.8 12.6 14.2 24.9 100.0 3.4 21.8 21.4 17.0 16.2 20.1 100.0 Ireland 17.8 25.4 18.6 17.2 11.7 9.3 100.0 6.3 17.4 28.5 28.4 15.1 4.3 100.0 Italy 4.1 28.0 23.5 16.1 15.1 13.2 100.0 2.2 25.6 35.1 21.7 12.0 3.4 100.0 Luxembourg 15.9 34.7 18.1 14.9 5.7 10.8 100.0 2.0 17.1 35.3 30.4 12.8 2.4 100.0 Netherlands 22.3 26.5 15.5 14.1 13.1 8.5 100.0 7.3 20.6 30.6 27.1 12.6 1.8 100.0 Austria 2.7 23.4 22.4 14.1 13.8 23.6 100.0 1.2 20.3 37.3 24.2 12.9 4.0 100.0 Portugal 4.5 15.8 6.6 10.0 15.4 47.7 100.0 2.6 11.7 17.4 19.5 23.0 25.8 100.0 Finland 16.1 31.0 12.9 13.7 10.5 15.8 100.0 10.5 27.6 21.3 19.4 13.9 7.3 100.0 Sweden 13.1 21.1 12.4 11.8 14.6 27.1 100.0 4.1 17.0 25.0 24.1 20.6 9.1 100.0 UK 26.9 18.3 8.6 8.8 12.8 24.5 100.0 7.6 12.9 27.3 26.0 19.1 7.0 100.0 EU15 14.8 25.8 16.2 12.5 13.7 17.1 100.0 4.0 16.5 29.8 26.7 17.9 5.1 100.0 

139

140

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

found between high employment for mothers and high shares of mothers in part-time work (Smith et al. 1998). Moreover in some countries— and notably Denmark— there is evidence of a decline in the relationship between motherhood and part-time work, with the younger cohort of mothers being more likely to stay in full-time work. To some extent, young people are providing a new supply of labor for part-time jobs, both voluntarily because of their involvement in education, and involuntarily because of high unemployment. However, while part-time employment has become a more important source of activity for young people compared with full-time work, there has been little change in absolute numbers employed as a consequence of the increase in young people outside the labor market altogether in education or unemployment (Rubery et al. 1995). Thus, if part-time work is to be, or to remain, a significant employment form, women seem set to continue to provide the crucial supply of labor for this type of work. The incidence of temporary work is also related to the life stage and particularly the problem of gaining entry into the labor market. Thus, in all countries, young people have a high incidence of temporary work contracts, either because temporary work is acting as a bridge into permanent work, or because, with high levels of unemployment for young people, temporary contracts may be accepted even if they are unlikely to lead to permanent employment. Where temporary jobs are found primarily among full-timers, most temporary workers are young people (see Figure 3). This high incidence of temporary work among young people tends to boost the overall proportion of women on temporary contracts, as the female labor force tends to be younger on average than the male labor force. For example, in Spain almost all of the differences in male and female rates of temporary working in 1996 were accounted for by the higher share of women employees under thirty (see Figure 4). Unfortunately, temporary work cannot be considered simply a stage that everyone has to pass through, as the rising levels of unemployment mean that many are likely to continue alternating between temporary jobs and unemployment without finding a route into a more stable and secure employment pattern. In those countries where women tend to quit the labor market and reenter, we find that women again record a high incidence of temporary work among older age ranges, particularly among part-time workers (see Rubery et al. 1995). However, while we find strong evidence of a lifecycle pattern to temporary working, the overall incidence of temporary work is primarily determined by differences in labor market organization between Member States (see Figure 3).

New Employment Relations



The share of temporary and permanent jobs held by employees under 30, 1994.

141

Figure 3.

142 Bettio, Rubery, and Smith



Figure 4.

Share of full-time employees in temporary jobs by age group and sex in Spain, 1996.

New Employment Relations

143



In contrast to temporary work, self-employment is concentrated among older workers. More men are self-employed, but there is little difference in the distribution by age for men and women. More women than men are unpaid family workers. Most unpaid male family workers are under thirty (see Figure 5), suggesting this is a transitional stage that men pass through, possibly while waiting to enter the formal economy or while also engaging in education. While the age distribution of self-employment and unpaid family workers remains relatively similar between Member States, the incidence of self-employment is primarily explained by difference in industrial and labor market organization. Thus, involvement in part-time, temporary, self-employed, and unpaid family work reflects a combination of life-cycle changes with changes to the structure and organization of the labor market that impact differently on individuals dependent upon their gender, their generation, and the country in which they are located. Women are more likely to be involved in atypical or precarious employment during the core working years, while for men, involvement in precarious employment is often concentrated at the beginning or end of their employment history. Nevertheless, the risk of involvement in atypical or nonstandard work still has a strong country as well as gender dimension. Strategies for Flexibility Employer Friendly Flexibility There are several types of employer strategies which are leading both to new forms of flexibility and to potential intensification of gender divisions. These include cost minimization strategies and changes to employment relations, as well as the decoupling of operating/opening hours and working time. This last strategy is examined closely as an example to show that the potential intensification of gender divisions is not a necessary by-product of competition, nor an inevitable outcome. The decoupling of an organization’s opening or operating hours from its scheduling of working time is a trend that can be found across countries and sectors. This trend is associated with the extension of operating/opening hours owing to increased competition, changes in methods of and relations of production (for example, to just in time production), and changes in consumption patterns and regulations (Bosch et al. 1994). The result is an increasing number of organizations where operating/ opening hours are longer than the standard working week. Organizations are forced into considering options for working-time arrangements, a situ-

144 Bettio, Rubery, and Smith



Figure 5. Concentration of family workers by age group and sex in the European Union (E15) 1996.

New Employment Relations

145



ation that increases the scope for diversity in working-time arrangements. The options for covering longer operating hours include: overtime by fulltimers on shift work or rotating daily schedules; annualized hours schedules of full-timers; regular schedules of part-time workers; and part-timers specifically employed for unsocial hours. Where decoupling leads to the flexible scheduling for male full-timers hours— by overtime, annualized hours, or shift working— opportunities are likely to be reduced for a new gender contract in the home. Even if total hours are reduced as a result of annualized hours schedules, time off from work is inherently irregular and, therefore, less easy to mesh with domestic roles and responsibilities. These problems are increased as more annualized hours systems are used, not to cut annual working hours, but to move toward a system where there are no clear divides between work time and personal time, and where there are increasing pressures to work unpaid overtime, under the culture of flexibility associated with the new operating and opening hours schedules. Where part-time work is used to cover irregular and unsocial hours, there are numerous different scenarios with different implications for gender relations. The outcome will depend upon whether part-time workers are required to be flexible across all days and times, or whether there are dedicated slots for each member of staff. While decoupling in production plants potentially affects women as employees, the issue of opening hours of shops and offices also affects them as consumers. Longer, unsocial hours or weekend working are thus sometimes championed, sometimes resisted, on behalf of women, depending on whether their interests as consumers or as workers take primacy. A brief consideration of recent trends in deregulation of shop and office opening across countries suggests, however, that it is often not consumer-driven competition but interfirm rivalry that pushes for deregulation and that the seemingly conservative resistance to deregulation increases directly with the cohesion of the social fabric, and it may not be desirable to have this social fabric demolished by firm-driven competition. In France, the extent of deregulation increasingly depends on the outcome of the commercial war that large commercial chains are waging on small shops. In the UK, a similar process of interfirm rivalry has resulted in extensive deregulation, partly because ethnic minority groups extended the small shop segment, using longer hours to outcompete established shopkeepers. In Germany, unions resisted deregulation for a long time on the grounds that they were protecting family life against disruption (Maier

146

Bettio, Rubery, and Smith



et al. 1994). However, shops in Germany are now allowed to open in the evening until 8 p.m. and until 4 p.m. on Saturdays. The first policy issue that arises in connection with decoupling and deregulation of working hours is the extent to which they should be pursued to minimize the losses for women as workers while maximizing their gains as consumers. A similar problem arises in the public services and schools, for example. One obvious and perhaps less costly policy option is to foster, even impose where necessary, effective coordination of time schedules locally. The following quote from draft legislation in Italy purporting to improve time-wise coordination of family and work illustrates the problem1 : We (the proposers of the law) asked ourselves who decides hours of service and working hours. And we found out that there is no co-ordination at all: the provveditore (Chief Education Officer) decides about school schedules; the prefetto (the Prefect) decides about hours of opening of shops; banks decide on their own; the public administration decides about the opening of postal services; hospital managers decide about hours of hospital opening; public transport companies, including the metropolitan company, schedule services on their own; and so on. (Senato della Repubblica, Disegno di legge 6 February 1995)

This could be one area for intervention in which relatively few resources could yield substantive improvements in women’s lives, and is actually being experimented in a large number of municipalities in Italy, as is illustrated below. The second policy issue is whether all should share in unsocial hours, to the extent that they are desirable or inevitable, thus spreading the disruption thinly, or whether the unsocial hours should be concentrated on a few. The arguments in favor of the latter strategy include the fact that there are groups who positively desire such work, for example, moonlighters, students, and even women with children who seek work when their partners can take care of the children. However, against these arguments must be set the likelihood that those that are disadvantaged in the labor market may also be forced into this type of work because of lack of choice. Mothers, for example, may be forced to accept extremely variable and unsocial hours because of poor childcare arrangements. A concentration of unsocial hours working is likely to intensify segmentation in the labor market, which risk should be avoided because, where job structures become segmented, women tend to end up in the lower segment. Table 5 summarizes the ways in which atypical work can result in low and insecure income, but the impact of atypical working on employment outcomes is strongly dependent upon the country specific form of labor market and fiscal regulations (Fagan et al. 1995; Maier 1992).

New Employment Relations

147

 Table 5. Potential or actual disadvantages of flexible employment.  Risk relative to full-time/permanent/direct employees Part-time Temporary Self-employment  Job insecurity (High) High (High) Income insecurity — — (High) (while job continues) Low annual pay High High (High) Low weekly pay High (High) (High) Low hourly pay (High) (High) (High) Low seniority pay/ (Service may not (Service may not Not available low bonuses be counted or be counted; counted pro rata; may not be may not be eligible eligible for for bonuses) bonuses) Low promotion/ Limited training Limited training No training or training prospects promotion Low social security (May be below May be below May not be covered protection hours/earnings continuity thresholds) requirements High involvement (May be hired to (May be hired Work very long and in unsocial hours cover unsocial to cover ununsocial hours hours) social hours) High variability of (Changes in day Variability over (Variability according working time and hours the year to business) schedule) Low benefits (May be excluded May be excluded No pension, from pensions, from pensions, holiday, or sick paid holidays, paid holidays, pay provisions. sick pay, etc.) sick pay, etc. Increased work Fewer breaks during Taken on when — intensity work day; hours high demand; scheduled to maxlaid off when imise work intensity demand slackens  Note: Brackets indicate risk may be greater for some but not necessarily for all of the category.

Flexibility over the Life-cycle Flexible employment patterns can be seen as an alternative to the standard employment trajectory of full-time continuous careers. The insistence on this employment pattern constrains women’s opportunities to participate equally in the labor market and men’s opportunities to participate in domestic life (Hewitt 1993; Lapeyre and Hoffman 1995). Thus, a renegotiation of the time-based employment contract can be identified as an essential prerequisite for a new gender contract. A satisfactory solution

148

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

to gender equality is unlikely to be found through specialization, with men specializing on wage work and women combining domestic and wage work, so that women are segmented into flexible employment areas. Moreover, even if the domestic division of labor is taken as a given, the working-time needs and preferences of women and men change over the life-cycle. It is thus by no means the case that over the life-cycle women always wish to have shorter working hours than men, nor that their working time needs are permanently those that, for example, adjust to the school day. Thus an alternative approach is to consider a life-cycle approach to flexible working time, which has the merit of increasing personal choice over the disposition of time, without requiring an all-or-nothing decision about whether or not to work. Such a policy would in principle also allow eventual change in the distribution of parenting work, with women perhaps taking more responsibility in the early years and men in later years. If successful, such a policy could moreover add further dimensions to individual freedoms and choices, allowing the combination of other activities with work— such as additional education and training— without sacrifice of careers (Alaluf et al. 1995). Current trends toward flexible employment are sometimes interpreted as a means of accommodating stages in the life-cycle. Thus, part-time work is associated with participation in activities other than employment— such as education or caring— while temporary employment may facilitate entry into employment, particularly for young people or those without recent work experience. However, the increasing concentration of young people in part-time work or on temporary contracts is not solely or mainly related to involvement in other activities or the need for training but to increasing difficulties in making entry into employment in general. Lifecycle flexibility policies can be expected to enable women in the prime age to remain in employment or at least attached to employment, thereby reducing the extent to which women bear the burden of labor force adjustment. More of the burden may, consequently, be placed on those outside the labor market— the young and the unemployed— and older workers may feel more pressure to retire from the labor market. Equal opportunity policy implies a redistribution of work and a redistribution of the risks of being excluded from work. As such we need to recognize that improved rights for women may have some increased costs for other social groups. However, there is no inevitable direct tradeoff between women’s employment opportunities and those of other groups. Policies that have boosted the integration of women in employment, such

New Employment Relations

149



as the development of public-and private-sector service provision, have also been associated with higher overall employment rates (EspingAndersen 1990; Rubery et al. 1998). Women’s participation in more continuous careers can also provide significant benefits to the entire economy, including a higher overall employment rate, a more skilled work force— as fewer women lose their skills with childbirth— a better defense for families against social exclusion and welfare dependency, and a greater opportunity for the development of richer and more fulfilling lifestyles for both men and women (Lapeyre and Hoffman 1995). Even so, whatever the net impact on the economy, women’s right to exercise a claim on society’s resources equal to that of men should not require justification. The objective of introducing a lifetime flexibility policy perspective for women is to allow greater continuity of employment careers for women combined with greater choice over hours of work. Such a policy may involve ensuring that flexible employment in core ages acts as a bridge into good employment careers and not as a long-term trap into flexible and low paid work (Büchtemann and Quack 1989); that more opportunities are provided for currently inactive women to return to work and/or to retain contact with their work while caring for children; and that some choice over hours of work over the life-cycle is provided to those in continuous careers. The relative weight of these elements of the policy will vary among Member States. While these policy objectives can be clearly identified, it is more problematical to identify either actual policy programs that have worked toward these objectives or that could be regarded as potential candidates for the political agenda. Moreover, even where some moves have been made toward policies that increase life-cycle flexibility, care must be taken to ensure that the actual outcomes of these policies, whatever the initial intention, are not to intensify gender divisions and gender role models. The main policies that have been adopted that favor life-cycle flexibility involve either opportunities for leave arrangements, or for flexible working time, or combinations of the two. Most leave arrangements relate to maternity or parental leave, as do rights to reduced or flexible hours. Only Denmark has thus far proceeded with a more developed programme of leave entitlements that include sabbaticals and educational leave as well as caring leaves. Moreover some of the policies apply only in the public sector or in the best practice organizations. Scandinavia provides the richest source of examples of such policies combined to some extent with France and Belgium. Three main issues emerge from these examples of life-cycle policies— if policies are to function as effective bridges into

150

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

employment, there is a need for a range of coordinated and consistent policies; there is the question of funding; and thirdly, but relatedly, the danger of reinforcement of role models. France provides a good example of the need for coordinated policies and rights for flexibility over the life-cycle to act as a bridge, enabling women to remain in employment. Thus, in France, in the public sector, women tend to choose to reduce working hours rather than to take the full parental leave available, and they often reduce hours by a relatively small amount. However, the opportunity to reduce hours to around 80 percent of full-time work might be less successful as a bridge in countries having both limited pre-school care and short school days. The second issue relates to funding. In most systems opportunities for leave are either unpaid or involve significant decreases in pay. Only in Sweden is the leave almost fully compensated by the state at around 75 percent of earnings, reduced from a 90 percent level in 1995. Finland, too, reduced its relatively generous compensation from a maximum of 70 percent to a maximum of 66 percent in 1993. If the leave or reduced hours are either unfunded or only partially funded, the cost to the person taking the leave or the reduced hours is high and may thus serve to reinforce the male breadwinner model of the family, as women become dependent upon household income at particular stages in the life-cycle. This increases the importance placed on the male career, even if the period of dependency is short. However, if the leave is state funded, it has a high public expenditure component, and even in Scandinavia compensation is being reduced and may not be sustained in the future (Ilmakunnas 1995). To some extent the relative advantage, from the perspective of integrating women into the labor market, depends upon the starting point. Where women currently have largely discontinuous careers and reenter into low-paid part-time jobs, such policies would provide a useful bridge for many women even if not fully funded. Where women have already developed full-time continuous careers, the introduction of paid leave or rights to shorter hours may increase the contingent nature of women’s careers, particularly at a time of high unemployment (Gauvin et al. 1994). Such concerns are evident in France, Finland, and Denmark, countries where full-time continuous careers based on available childcare are wellestablished patterns, but where new leave systems, or new subsidies for parents staying home to look after children, raise the possibility of some reversal of the integration of women achieved over recent years. For example, in Finland there has been an increase of 5 percent in the number

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

of women who are housewives, resulting from the extension of the home childcare allowance which may be taken, with rights to return to employment preserved, for the first three years of a child’s life (Ilmakunnas 1995). Although the alternative is a place in publicly subsidized and high-quality nurseries, the share opting for the child home care allowance has risen from 20 percent of women with children aged one to two in 1985 to 73 percent in 1994, partly as a consequence of a high marginal tax rate owing to household means-tested benefits and the home-based childcare allowance. Thus, moves toward longer leave provisions may reduce the choices of women in the longer term, if it leads to a substitution of leave for childcare provision. This brings us to the last and related issue, the reinforcement of stereotypes. Usually, opportunities for leave or for reduced hours are taken up by women irrespective of whether they are also available to men. Although the right to reduced hours may help women to work continuously, there are still negative impacts from these choices on women’s subsequent careers (Gauvin et al. 1994; Meulders 1995). Only in a few countries, including Sweden, Norway, and the Netherlands are men making significant use of parental leave. Even in these countries, however, men account for a very modest quota of all leave taken. In Sweden where 50 percent of men take parental leave, they only account for only 7 percent of all leave taken (CEC 1994). It is probably even less likely that men would opt for reduced hours over a long period than to take full but relatively short periods of leave. These problems relate both to the issue of funding as men’s earnings still tend to be higher, and to the problem of the impact on men’s careers of accepting such rights. From this perspective, it may be better to foster shorter full-time hours so that men can begin to participate more in domestic roles than to try to move immediately to a system of men taking full or main responsibility for childcare. Men are perhaps more likely to take up life-cycle flexibility options when close to retirement, but this type of flexibility would not add significantly to gender equality in the household. This brief overview of existing experience with life-cycle flexibility policies has highlighted the problems of designing appropriate policies that empower individuals to break out of standard full-time continuous careers without falling into the trap of reinforcing gender roles. Moreover, the risks to careers of opting for the nonstandard route are probably magnified at times when jobs are scarce. This suggests that any significant move to life-cycle flexibility must be combined with moves toward either job creation or work sharing. On the other hand, moves to work sharing

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

that see life-cycle flexibility policies as an easy and attractive means of sharing out the unemployment problem may actually be designed to reduce, rather than enhance, women’s participation in work. Working-time Reduction and Work Sharing The current concern over high levels of unemployment and low rates of employment creation are leading to policies to change working time and work patterns to achieve a number of objectives, including both increasing the number of jobs available through decreasing working time and decreasing the number of people seeking work. These developments have gender dimensions that are often ignored or overlooked. Many of the policies discussed above with respect to life-cycle flexibility have been introduced in a context of high unemployment and a desire to redistribute work. This includes, for example, the Danish leave programmes, the Italian draft legislation quoted earlier, which also included proposals of new leaves during the life-cycle, and the extension of home childcare allowances in Finland. Some of the recent initiatives to increase the acceptability of moves into flexible work with the aim of work sharing include early retirement on a full-time or part-time basis, parental leave, sabbatical leave, or career break schemes. The implications of these schemes for gender relations, as we have already discussed, are often problematical. Women have been discriminated against in the past by their exclusion from social protection or by reduced benefits from part-time work, but the removal of these forms of discrimination in the interests of boosting work sharing has a double edge. The better the conditions under which women stay out of the labor market or participate in short hours jobs, the easier it may be to reinforce or even reintroduce a strong male breadwinner model of family organization. Many policies are designed to enable men to retire early or on a parttime basis, or to help the unemployed get back into work by providing social security protection or income support for those in part-time jobs. However, some of these schemes lead either intentionally or unintentionally to divisions between workers. Those entering part-time work from full-time work or unemployment are likely to have better access to social security provision than those entering directly into part-time work. Yet, although men still account only for a minority of part-time workers, they are more likely to be found among groups entering as a consequence of partial early retirement or unemployment. Thus, these schemes may set up divisions within the part-time labor force that contribute to the detriment of most female part-timers. Where income subsidies are given to

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153



those with domestic responsibilities— in work benefits such as the UK family credit system— the ability of employers to provide low-wage and part-time jobs is reinforced for where employees cannot provide for subsistence on these wages, they receive a subsidy from the state. Current policies to increase the number of jobs through changes in working time entail either cuts in overtime hours or incentives for parttime working. Moves toward a general reduction of working time still involve a minority of European countries. However, the recent commitments taken by two countries, Italy and France, to enforce legally a reduction of the normal working week to thirty-five hours may give new impulse to the shortening of the working week elsewhere. Furthermore, working hours have been reduced in Portugal to forty hours a week, and there have been experiments in Belgium with a thirty-two hour week. A shorter working week has been identified as a precondition for greater gender equality, setting the conditions for which there can be a more equal sharing in the household as well as in work (OECD 1994; Beccalli and Salvati 1995). However, such policy cannot be effective in isolation, unless an immediate and sizable reduction were feasible— to approximately thirty hours a week. This is considered neither probable nor necessarily advisable even by convincing advocates of working time reduction (Beccalli and Salvati 1995). Gradual change, on the other hand, provides ample opportunity for sex roles to adjust to new working times without fundamental changes in behavior, unless there are concomitant incentives for men to increase their participation gradually in domestic roles. A combination of different, but coordinated, working-time policies may be necessary in this respect and there is a discussion of three, not necessarily mutually exclusive, possibilities. The first possibility is a combination of working-time reduction and schemes enhancing flexibility over the life-cycle— for example, using time banking schemes. The basic idea is that reduction in working hours can be granted as credits to employees who can ‘cash’ them within a specified period of time— when and in the form they require— conditional upon consultation with, and the agreement of, their employers. Reductions in working time can be placed back on the negotiating bargaining table in partial substitution for nominal wage increases. The reductions need not, however, translate immediately into a shorter schedule, but can be ‘credited’ to each employee. Within a period to be specified, the employee can cash the credits he/she has accumulated in various forms detailed by collective bargaining, ranging from reduced daily hours, to reduced days, to full leave.

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

The French experience quoted earlier indicates that working mothers might be happy to reduce working time by as little as 20 percent for a relatively short period. For example, if a two-hours a week reduction had been agreed upon and a mother working six hours a day six days a week had accumulated about one hundred hours credit by the end of the first year, she could afford to shorten her week by one working day for over three months. Conversely, firms can introduce a time banking approach in lieu of overtime or other forms of flexibility to meet their own needs of variable hours. Of course, the rules of this more flexible calendar must be previously negotiated with employees and predictability or advanced notice should be guaranteed insofar as possible. Recent work by the European Commission’s Network on the Situation of Women in the Labour Market documents the various ways in which the time banking approach is being implemented at the firm level and highlights the possibilities as well as the risks inherent in this approach (Bettio et al. 1998). The second combination entails the use of financial incentives to foster a shorter and more evenly distributed working week. The idea in this case is to ensure that the reduction in working time results in a more even distribution of the latter between men and women. To this end, incentives may be provided to induce both employers and employees, men in particular, to choose an intermediate number of hours over both short or long hours. Social security, taxation, and overtime regulations can be used to set the appropriate incentive structure, for example, by significantly lowering rates of social security contributions on the target range of working hours with respect to contributions paid on shorter or longer hours; or by pursuing individualizing taxation system to discourage differentiation of income roles into a low earner, typically the woman, and a high earner, typically the man.2 The third possibility is to pursue flexibility at the local level by enhancing the coordination of working time with “ city times” in the spirit of the Italian draft legislation quoted earlier. A debate has developed in Italy since the mid-1980s on “ City Times” and has recently spread to France (Belloni and Bimbi 1997; Silvera and Eydoux 1997). Women’s groups and associations, women in trade unions, and several Commissions for Equal Opportunities have advanced a gender perspective on the reconciliation of working hours and the times of everyday life that has materialized in numerous initiatives at local level. In 1997, City Time Programs were registered in eighty Italian cities and, in their survey, Belloni and Bimbi (1997) summarize the key objectives:

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

• •

•

rationalizing the complexity of the city clock— for example, Sunday opening for shops, varying the hours for secondary schools; introducing innovations in the opening hours of public services and implementing flexible hours, especially in childcare services; for example, afternoon opening for offices with public contact, and partial access to day nurseries for children who are not enrolled; obtaining a fairer deal for working women by facilitating the management of their personal time— for example, innovative reorganizations of office hours must explicitly consider the needs of mothers and their children. Conclusion

Comparative analysis of employment patterns across European countries reveals that both country- and gender-specific factors shape the prevailing flexibility arrangements. A fairly familiar list of gender differences is regularly found within each European country: there are more women than men among family workers and employees, the converse being true for the self-employed; women predominate among workers on short-hours schedules, while long-hour schedules tend to be male preserves; in particular, the share of women in part-time jobs is from three to fifteen times as high for women as for men, and because of greater involvement in part-time work women are more likely to face irregular and unpredictable working hours; women are more likely than men to work regularly on Saturdays, while men are more likely than women to work occasionally on Sundays; the share of women in temporary employment is usually higher than for men, partly because temporary work prevails among the young, where women’s employment is concentrated. The above list might be thought to imply that gender divides ultimately boil down to greater involvement of women in flexible forms of employment. Although this may be true on balance, the salient feature of flexible employment is that men and women tend to specialize in different forms of flexibility and an asymmetry in earnings accompanies this specialization. While a premium is usually given for overtime or shift work where men predominate, part-time or irregular hours are often associated with lower hourly earnings. Saturday work is more often remunerated at the standard rate than Sunday work; likewise, self-employment in the guise of

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

family work does not usually command independent earnings in contrast with professional self-employment, which is still poorly feminized. Although flexible forms of employment reproduce the familiar gender asymmetry, there is no hard evidence that they determine, or are determined by, the prior division of labor by gender. In other words, there is no necessary connection between patterns of job typing and flexible contractual arrangements. Country-specific factors partly account for the loose correspondence between the division of labor by gender and flexible arrangements. These factors range from the sectoral composition of employment to labor market regulation and to cultural norms, and without resorting to these explanations, it would be difficult to understand why gender divisions that hold within most countries are often overturned in cross-country comparisons. To recall just a few examples, the share of part-time work for men in some Northern European countries exceeds that for women in Southern European countries; and the share of temporary jobs is much higher among male full-time workers in Spain or Germany than among female full-time workers in the UK. If societal and institutional factors are as important as our analysis indicates, then there is room for policy change, but the debate on, and the quest for, flexibility must change focus, if women are to benefit. Thus far, flexibility has been pursued primarily from the side of employers. In addition, flexibility has been assigned too many tests. On the one hand, it is proposed as a remedy for unemployment in partial substitution for demand management. However, various forms of flexibility are disguised forms of work sharing, which are proposed or implemented in response to rising unemployment (for example, subsidized and extensive leave periods). The evidence in favor of significant employment effects of such measures is weak, whereas there are clear signs that they provide a disincentive to women’s participation, or threaten further ghettoization. On the other hand, flexibility is given the role of enhancing compatibility between family and work and to act as a substitute for waning public services. It is, however, increasingly taking the form of unpredictable hours, rather than simply shorter hours. Finally, flexibility is considered a necessary condition of competition. But while, as a result, male workers are losing part of the additional compensation that nonstandard schedules traditionally offered, for example, through annualization of hours that abolish overtime premiums, women are increasingly offered unpredictable flexibility without compensation— for example, zero hours contracts.

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

Employee friendly flexibility should be put back on the agenda, which need not necessarily place an extra burden on firms. One promising possibility in this respect is to introduce innovative working schedules capable of enhancing flexibility over the employee’s life-cycle and compatible with a gradual reduction of working time. We have discussed the example of time banking which can be designed to grant workers greater flexibility on a day-to-day basis but also in a life-cycle perspective. Additional examples can be drawn from the recent spur of innovations in working time among European firms. A second possibility is to redesign existing fiscal and tax incentives away from short-hours arrangements, which penalize women the most, and in favor of an intermediate number of hours, so as to gradually shift the ‘preferences’ of both employers and (male) employees toward a shorter working week. A third possibility is also to pursue flexibility at the city or local community level rather than solely within firms with the intention of harmonizing the needs of women (and men) as consumers and as producers of services. The “ City Times” approach currently being experimented with in Italy and in France is a promising step in this direction.

Notes

This chapter draws primarily on a report on patterns of work and working time in Europe by the European Commission’s Network on the “ Situation of Women in the Labour Market.” See Rubery et al. 1995 and also Rubery et al. 1996. An earlier version was presented at the 1996 European Seminar on “ Women and Work in Europe” organized by the International Labour Organization in Turin. Much of the empirical information is based on the European Labour Force Survey.

1.

This draft legislation also included proposals to introduce new leave arrangements from work over the life-cycle. The draft was repeatedly revised in the following years and is still pending at the time of writing. At the local level, however, the idea of greater time-wise coordination between family and work has resulted in the so-called “ City Times” initiatives to be discussed.

2.

For more details see Bettio et al. 1998.

Chapter 8

 The Gender Perspective in the Policies of European Trade Unions Myriam Bergamaschi

The gender perspective has received increasing attention in European trade unions’ policies since the mid-1980s, basically as a result of the presence and activism of women in unions. They have developed initiatives and devised programs that have become progressively more articulated over time. Their two objectives have been to secure positions in decision-making bodies and to make gender perspective one of the keystones of trade union policies and industrial relations in a period when both have been undergoing real renewal. Women trade unionists, however, are working in a context which is, to say the least, exceedingly hostile. Although they form 40 percent of total trade union membership, they are underrepresented in decision-making bodies. Moreover, there is no indication that this gender ratio is changing rapidly. The situation is mirrored in all the affiliated unions of the Member States and shows how the process of Europeanizing industrial relations continues to be colored by the traditional culture of trade unions.1 The underrepresentation of women in unions is also a result of trade union policies which, on the whole, tend to ignore the concerns of women workers rather than express them (Leisink 1997). The gender perspective at the European level must be examined within the broader framework of union policies. These have been changing, as the European Community (EC) has moved from the early stages to the latest phase, marked by monetary union. With the accentuated liberalization of the labor market, it is necessary to assess whether women’s action can effect improvements for women workers or whether the traditional bias that undervalues gender differences and women’s needs is likely to

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Myriam Bergamaschi



continue. The chapter offers an analysis of trade union women’s programs from the mid-1980s to the present. Role of the Trade Unions in the European Union The gender policies of the various European trade unions depend largely on their political relations with the EC. As a matter of fact, European industrial relations are strongly influenced by Community policies and by the steps that are shaping the European Union. The European Trade Union Confederation (ETUC) has developed important relations with the various Community institutions since the organization’s early years, but it has traditionally attributed a high priority to its relations with the Commission. The European Commission has a primary role in formulating policies of industrial relations, and its role is becoming increasingly important. These relationships must be briefly examined in order to understand the position of the gender claims under assessment. In 1973, the first nucleus of ETUC was erected on the ashes of the international union organizations established during the tensions of the postwar period. Seventeen confederations of Western European countries joined it. ETUC was the arena for different, and at times contrasting, conceptions of trade unions and industrial relations. Different trade union legacies interacted in the shaping of European trade union integration, above all in the first decade of ETUC’s existence. During this period, the main objective was to achieve an acceptable level of internal cohesion rather than to devise a platform of common policies. From the very beginning, ETUC lacked the instruments with which to address its members’ policies, and many scholars believe that it principally exerted pressure as a lobby on Community institutions (Dolvik 1997). The internal difficulties caused by the historic legacy of rivalry in the workers’ movement were compounded by problems arising from the nature of the social chapter of the 1957 Treaty of Rome. Articles 117– 122 delineated the areas and modus operandi in which the Community can act. These did not provide a legal basis for a community legal framework for industrial relations. The European Commission’s limited excursions in the labor law field in the 1970s were based on other Treaty articles. Thus, all industrial relations measures based on the Treaty of Rome have been restrictive (Roberts 1992). Furthermore, proposals advanced by the European Commission concerning work and social questions required the unanimity of the European Council of Ministers, giving each country an effective veto power. Only with the Treaty of Maastricht in 1992 was this

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

difficulty overcome, when the majority vote of the Council was introduced for some aspects of the social area.2 A turning point came in 1984 with the appointment of Jacques Delors as President of the European Commission. He proposed that a ‘social space’ be created in Europe, which radically changed the face of the Community. Until the mid-1980s, the Commission worked to impose its proposals on Member States to harmonize Community social policies and labor standards. It principally used tripartite relations, bringing together the major employers and labor representatives. The Commission, however, also promoted initiatives involving European representatives of capital and labor and national governments as well. The idea was that the Commission would guide a process in which a uniform framework of labor and social legislation could be constructed. In the mid-1980s, the Commission devised a different vision of the construction of social and labor policies in Europe. This new approach was facilitated by a Court of Justice ruling that interpreted the terms of the Treaty of Rome as an ‘approximation’ rather than a ‘harmonization’ of labor standards, which led the Commission to attempt to adjust to different national social and labor conditions rather than strive for the unification of policies (Abbot 1994). The ‘social dialogue’ process introduced by the Commission was the primary mechanism for facilitating this new approach. In this process the Commission acted as one of the principal promoters of exchanges and agreements between the industrial relations partners. It was no longer the leading actor but simply the supporting actor, facilitating exchange between the different agents. This new perspective has improved relations between ETUC and the European Commission and has also established new channels of communication with the various Community institutions. Relations between the unions and representatives of private employers (Union of Industrial and Employers’ Confederations of Europe— UNICE) and public employers (European Centre for Enterprise with Public Participation— CEEP) were strengthened between 1985 and 1991, albeit remaining at the apprenticeship stage. Delors asked the unions to support his commitment to combine the promotion of a strong social dimension, based on ‘social dialogue’ and collective agreements, with macroeconomic policies promoting growth and employment. He was deeply aware of the importance of involving representatives of social and economic interests in the development of Commission policies. In his view, the introduction of the Single Market

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Myriam Bergamaschi



would facilitate relations between unions and employers’ associations, so that together they would be able to tackle the labor and social issues involved in European unification. During the second half of the 1980s, ETUC strategy started moving in a new direction. Trade union attention to European development was stimulated by similar national economic problems “ combined with the vision of reinforced political and social integration advocated by the Delors Commission” (Dolvik 1997). The emergence of trade unions that were attempting to influence the nature of European integration led ETUC affiliates to reconsider their role in the construction of a social Europe and to rise above the ideological and national differences that had hampered them for so long. In accordance with the 1985 Milan Congress resolutions, ETUC strategy began to address the unified European Market. On the internal political front, this led to increased cooperation between ETUC and the European Industrial Committees (EICs) as well as to the commitment to promote European Works Councils, which would provide information to workers in multinationals. The ETUC framework consisted of three interrelated levels— those of the ETUC, the EIC, and the Works councils. With the onset of the 1990s and the advent of greater European integration, a change also took place in ETUC’s leadership, which was sanctioned by the 1991 Congress. This change was influential in balancing the power between Northern and Southern countries and particularly in transforming ETUC into a real European Federation of Trade Unions. Before the Treaty of Maastricht and the attached Social Protocol, the social partners did not have the status of social participants recognized at the European level. Neither were they recognized as producers of social standards, because collective bargaining was not considered to complement labor legislation. The Treaty of Maastricht (Articles 118A and 118B) and in particular the Social Protocol (Article 4) opened a negotiating sphere and supported the development of the ‘social dialogue.’ The Protocol allows management and labor to conclude framework agreements, which may, at the request of the parties, be implemented by a Council decision on a proposal from the Commission. The ‘social dialogue’ takes place on two levels: interprofessional ‘social dialogue’ (the social partners are consulted by the Commission on social and industrial relations problems as well as on the preparation of certain legal instruments, such as recommendations and Directives) and sectoral ‘social dialogue.’

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

There is still some skepticism about Community level bargaining— especially among employers. Employers accept the idea that the social dimension is part of the single market but are afraid that the agreements will be used by the Commission as a basis for European labor legislation. This is the reason that it has been impossible to reach an agreement on the European Works Councils (the question was later regulated by a Directive in 1994).3 However, even among employers, different trends are developing. It has been possible, for example, to reach agreement on two issues that strictly concern gender— parental leave and part-time work. Finally, there are also some sectoral trade unions that are reluctant to relinquish any of their bargaining power at the European level. Here too, however, the situation appears to be in a state of flux, and positive opportunities have opened up as sectoral agreements have been reached. The Implications for Women What is the place of women workers’ concerns in this context? Some issues are crucial to the future of trade unions. These are the underrepresentation of women and some categories of workers in union membership, the defense of women’s interests, and the modernization of collective bargaining.4 Despite the fact that the ETUC Women’s Committee has been in existence since 1973, the European Confederation left it on the sidelines for many years. When social policy came on to the European Community agenda, gender issues received the new impetus, amply demonstrated by the Action Programmes on equal opportunities. These were aimed at consolidating women’s rights at work, promoting training, and fostering a fairer division of family and work responsibilities. This progress was made thanks to the presence of women at the European Commission level where there was an active Women’s Bureau (later renamed Equal Opportunities Unit). Despite the vigor of the Women’s Bureau, the gender perspective did not have a focal role in the preparatory work for the Common Market. Women’s policies were perceived as a specialized, rather than a general, concern and women were excluded even from the key work group set up by Delors on the Single Market and its effects. This situation, engendered by an antiquated culture, indifference, an underestimation of the problems, and bureaucratic hostility ended when the women in Community institutions reacted against this marginalization by developing policy-

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Myriam Bergamaschi



oriented reports and analyzing the impact of the single market on those sectors of the economy especially important to women. These focused on the implications of the increasing mobility of the labor force (Hoskyns 1996). Proposals ensued, targeting needs in the area of care-work and the improvement of services. In the wake of this action, similar women’s initiatives got underway in the Member States as well. The final text of the Social Charter, drawn up at the close of 1989, mirrored these trends. It incorporated the equal treatment principle that “ must be ensured” and the equal opportunity principle that “ must be developed.” 5 The development of the gender perspective in European Community policies was marked by complex events, similar to those faced by women in the European trade union organizations. The construction of the ‘social dialogue’ between the European Commission and the trade unions shows all the signs of continuity with the past and a re-emergence of old gender division. All Commission industrial relations actions lacked a gender perspective and failed to address issues related to gender difference. Delors’ speeches to the ETUC exemplify this situation. In his plea to ETUC in 1988 on the strategy for strengthening EC social policy, he made no mention of equal treatment nor of equal opportunity policies. It was in the setting up of European industrial relations, however, that women trade unionists attempted to make women more visible as political subjects, going beyond national boundaries and suggesting more relevant ways of dealing with women’s conditions in collective bargaining. Results varied from country to country. Each Member State’s legislation and bargaining system influence the regulation of work conditions. A comparative analysis of collective bargaining in the fifteen Member States indicates that the concept of equity bargaining has made little progress and that there is a great need to modernize the bargaining mechanism to make it more representative of women workers’ concerns (Kravaritou 1997). A close review of women’s policy from the mid-1980s on reveals two distinctly different periods. In the first— between 1985 and 1991— policy was directed toward the introduction of positive action for gender equality and the setting up of women’s committees that would implement women’s policies. The second period opened in 1992 under the banner of an ambitious project— to include equal treatment and equal opportunity for men and women in general labor policies, going beyond the promotion of equality measures specifically for women. A comparison of these two periods reveals certain key trends.

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165



The 1991 Congress marked a turning point that introduced important changes. Initially, women were appointed to the decision-making bodies of the European Confederation. Then, a certain number of posts (albeit limited) were reserved for members of the Women’s Committee in the ETUC Executive Committee, the Steering Committee, and the Committees for ‘social dialogue.’ Furthermore, although the Women’s Committee is an advisory body, its role in the ETUC context was strengthened both by the increased participation of women in the decision-making process and by the gender policies that the Confederation undertook to follow. Hence, the Women’s Committee’s initial aims were realized. Although the Committee directives were applied differently by each Member State’s trade unions, there was a universal undertaking to implement equality programs in national collective bargaining. Training courses on issues such as working hours, equal pay, and other women workers’ concerns multiplied to address these new developments. In the second half of the 1980s, the European trade unions were united in their aim of augmenting the presence of women in the trade union movement. Most of the national trade unions boasted a steady rise in the number of women within their organizations, including their general councils and executive committees. During the same period, the rate of female unionization increased, especially in Scandinavian countries and sectors such as the Civil Service. Some trade unions (such as those in Denmark) adopted more articulated plans, including training programs aimed both at female officials and delegates. Research confirms a considerable increase in the number of equal opportunity committees and commissions in almost all the unions affiliated with the European Confederation (ETUI 1987). The underrepresentation of women, however, is still a constant. Even in trade unions where women members are the majority (for example, in Finland and Sweden), men prevail in the decision-making bodies and in the committees appointed to conduct negotiations. It seems, therefore, that the goal of feminizing the unions’ structures is far from being accomplished. Women’s committees within the unions have existed for more than ten years but are still unable to effect significant change. Women trade unionists view these structures as a precious resource, an important achievement, and an effective tool for defending the rights of women workers. Admittedly, however, the representation of women in the decision-making bodies has not improved a great deal, as the figures confirm. Women hold 20 percent of leadership positions within

166

Myriam Bergamaschi



ETUC-affiliated national confederations, and many of these posts are second or third level. In the European Industrial Committees, they never constitute more than 10 percent of the Executive Committees, while in the Steering Committees the percentage is even lower. The data as concerning the European Confederation is no better. Women account for 12 percent of the Executive Committee. In the Steering Committee, only one member of nineteen is a woman and only 28 percent of Secretariat members are women (Braithwaite and Byrne 1994). Underrepresentation extends even to all those institutions that are responsible for ‘social dialogue,’ in which men constitute between 80 percent and 95 percent of ‘social dialogue’ delegations (Cockburn 1996). If we consider the European Works Councils (EWCs)— which are the projection at the European level of working council representation and key structures to ensure employee consultation procedures— women’s presence again seems fairly limited (Cockburn 1995a). The 1994 Council Directive (EWC 94/45) failed to enunciate a principle of equal representation of gender in worker delegations to the EWCs. A 1992 seminar organized by the ETUC Women’s Committee in Milan was the scene of an abrupt shift in the general strategy of the unions with respect to gender policies. The resolution “A new ETUC strategy to acquire equal opportunities” was passed. The new strategy included equal treatment and equal opportunity policies aimed at the economic and social cohesion of all citizens. This line is known as ‘mainstreaming’— that is, the integration of equal opportunity and treatment into all policies and actions of European industrial relations. Integrating equal opportunity within all general policies should not mean— according to the ETUC Women’s Committee stance— ignoring the essential role of positive action in eliminating discrimination. This ‘mainstreaming’ strategy revealed women’s impatience with being marginalized in the special organizations with which they had been entrusted. The 1992 seminar brought another issue of great importance to the fore— the development of the gender perspective in union claims and in collective bargaining. Equal opportunity policies are perceived as calling for changes in male gendered organizational and occupational structures, practices, norms, value systems, and so forth. The ETUC Women’s Committee was involved in the work of the Standing Committees established to devise and define the policies of European trade unions as well as ‘social dialogue.’ Women requested that the male members on these Committees be educated on gender perspective with regard to the prob-

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167



lems they were dealing with. They also called on the Secretariat to use its resources to disseminate information about gender and convince its dependent Committees to accept gender policies. The Milan seminar had an enormous impact. At the end of 1992, the ETUC Executive Committee adopted the proposed lines featuring two issues. One was women’s increasing difficulty in reconciling work and family life, a strain compounded by the fact that unpaid work was increasing as a result of the aging population. The second was the risk of increasing inequalities resulting from the readjustment policies for the Economic and Monetary Union budget (with cutbacks in social services and sectors with high-density female employment). In the following years, women in the unions worked toward achieving two aims. One was to attain gender democracy, thus ensuring the proportional representation of women at all levels of decision making. The other was to develop women’s equal opportunities in policymaking and collective bargaining. This contributed to the need for much more coordinated work with the national unions and for the development of research and training. Training was a core issue. Aimed at boosting the number of women in decision-making positions and bargaining committees in the workplace, it has received substantial financing. Concerning the principle of gender democracy, which applies at all levels from the local to the European, the program of the Women’s Committee invited the national confederations and their organizations to delineate objectives and deadlines for guaranteeing a proportional quota of women in decision-making bodies and to modify statutory regulations to ensure proportional female representation. Union leaderships were requested to make plans for career development and promotion for women in their organizations. The project adopted by the 1995 ETUC Executive Committee also provides for a stage of periodic inspection and assessment at national and European levels (ETUC 1995, 1– 9).6 Following this approach, the Women’s Committee went so far as to set the proportion of female participants at the ETUC Congress and also in the major ‘social dialogue’ committees. Discussion within the ETUC Women’s Committee and among other female activists in the union movement was most heated on the question of electoral reform aimed at gender representation. Men and women must share positions in the committees, in the delegations, and in the decisionmaking bodies in a way that reflects gender proportion among representatives. This approach was partially applied by some national union organizations (by UNISON in Great Britain and by the Confederation Géneral

168

Myriam Bergamaschi



du Travail in France for example), which introduced mechanisms for more adequate representation of men and women (Cockburn 1995b). The equal treatment and equal opportunity policies devised by the women in the European trade unions regard the following objectives— access to the labor market, equal pay for work of equal value, the regulation of atypical jobs, social security, fair distribution of private responsibilities between men and women, and health and safety. Undoubtedly, the focus of their policy remains employment, but those aspects pertaining to the family role and the sexual identity of women are also considered. In each area, there are precise and articulated proposals, ranging from improving the quality of the labor force to revaluing women’s work, from the request for social services to the support of individual rights in social security and taxation. Women’s access to social security benefits, in many European social protection systems, depends partly on rights pertaining to their marital status. The Women’s Committee, in agreement with the European Commission, maintains that the social security system based on the model of the male breadwinner has become obsolete and proposes the individualization of such benefits. Furthermore, there is an evident contradiction between the labor market, which treats male and female workers as individuals, and social security systems, which treat them as members of a family.7 However, the principle of individualization of rights is still disputed. Although the Committee itself considers that this principle increases women’s independence, it also recognizes that it must be placed in a broader context, accompanied by measures aimed at improving job opportunities for women. Measures to lighten the family workload and to encourage men to share family responsibilities are, therefore, essential. The individualization of rights entails a social model that differs from those which are currently gaining favor in the European Union. Even ETUC policies, ratified in the latest congress, only partially include what women view as the interlocking of macroeconomic, labor, and equal opportunity policies. The “ new social contract between men and women,” which insists on the fair division of family and work responsibilities and which is the basis for women’s European social model, was not accepted by the male contingent of the trade union Confederation. The consequences of monetary union are crucial in determining the future scenario as well as different models of industrial relations stemming from it. The aim of trade union women is to force the European Union to play a redistributive and balancing role between economic efficiency and social equality regarding gender. The feminization of poverty and the huge numbers of

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169



women in atypical jobs, characterized among other things by a lack of social security, are alarming signs of the growth of inequality and the need for a balance between flexibility and social protection, market globalization, and solidarity. Concerning measures to tackle unemployment, to which the highest organizations of the European Union and European trade unions are now paying a great deal of justified attention, the ETUC Women’s Committee claims that they must consider specific women’s needs.8 Union women have also undertaken initiatives concerning European equality legislation and the Directive on the ‘burden of proof in cases of sex discrimination.’9 Women have led a far-ranging discussion on the weakness of the equality principle in European law. Despite the Directives and the development of European Court of Justice case law, actual equality has not been attained. Pay gaps, which in some countries have been further widened in recent years, and working conditions bear witness to this. The position of women in European trade unions is much less clear about the Directive concerning ‘the burden of proof in cases of sex discrimination.’ The prevailing solution, in accordance with the ETUC position, was not to overturn the burden of proof but to require both parties in the dispute to provide documentation supporting their respective cases. These examples do not exhaust the subject, but they give some idea of the various strategies used by union women. Their voices can also be heard in other areas such as rights for pregnant workers, sexual harassment, and professional training.10 Equal treatment and opportunity are fundamental reference points in the construction of the bargaining agenda and negotiation process. On other issues the interplay between the European and national perspectives can increase the possibility of implementing the gender perspective. Bargaining Some mention has already been made of the difficulty of developing bargaining in Europe owing to the refusal of private employers and Europessimistic trade unionists, who have an extremely bleak view of the future of European collective bargaining. The development of ‘social dialogue’ on the one hand and the adoption of a single currency on the other, have led to reflections and rethinking among some employers. This is also a result of the breakdown in negotiations on the regulation of the European Works Councils, caused

170

Myriam Bergamaschi



by the opposition of the British employers’ association. Furthermore, the European Council exerted political pressure on the social partners to produce a tangible result from the collective bargaining procedure. The Council explicitly asked the employers and the labor union to step up their dialogue and make full use of the possibilities offered them by the Social Protocol. At the same time, the European Commission embarked on a new initiative intended to promote the compatibility of working and family life. Thus, the first round of European negotiations dealt with a key issue for gender equality. The framework agreement on parental leave was signed in December 1995 by employer representatives (UNICE and CEEP) and by ETUC. It became European law with the Directive of the Council of Ministers in June of the following year, after ten years of discussions and vetoes by Great Britain. This agreement exemplifies the relationship between the bargaining process and content. There were many women at the negotiating table (among both employers and trade unions). Although the content has its limits (for example, the text lacks references to payments owed to those who take leave), the agreement nevertheless adequately applies the principles of equal treatment and equal opportunity. There are three key points. a) An individual right to parental leave. This leave can be taken not only for children (including adopted children) but also for other dependent family members. Thus, it can help to foster a better distribution of family responsibilities between men and women. b) Flexibility, to make the right more usable. The parents may take leave in one block or choose part-time or other forms of credit. The aim is to make access conditions as broad as possible to allow parents to use them fully. c) ‘Subsidiarity’ and decentralized bargaining. The aim is to have a dynamic framework agreement that will be implemented and developed at the national level through collective bargaining. The second framework agreement regards part-time work and was drawn up between ETUC, UNICE, and CEEP on May 14, 1997. That same year, the Directive on part-time work was also adopted by the Council of Ministers. The framework agreement, to which the Directive gives effect, aims at facilitating voluntarily chosen part-time work and eliminating discrimination ‘against part-time work on a basis acceptable to employers and workers.’ Unlike the first agreement, some trade union women complained about the difficult and “ unsatisfactory” relations between them and the negotiating group.11 The agreement is based on equal treatment between full-time and part-time workers. The women of the ETUC com-

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171



mittee were concerned about the legal logic adopted to combat discrimination that is founded on the benchmark of working hours. They claim that the framework agreement is not based on the principle of equal treatment between genders, as established in Article 119 of the Treaty of Rome and in the Directive on Equal Treatment. Whereas the Directive on equal treatment, from which much ECJ case law on part-time work has developed, prohibits discrimination on grounds of sex in social security schemes, the framework agreement on part-time work excludes social security matters. Notably, the agreement recognizes that matters concerning statutory social security are to be decided upon by the Council of Ministers or Member States. Because ECJ case law was disregarded in the part-time framework agreement, some women have suggested that it is invalid. The framework agreement also provides a European definition of the part-time worker and prohibits the dismissal of a full-time worker who refuses (with valid reasons) to accept reduced working hours or changing part-time work into full-time. As in the previous agreement, a clause was introduced whereby Member States and the social partners at the national level could introduce more favorable provisions than those of the agreement. Good results were also achieved by framework agreements drawn up at European level in some sectors and in multinationals. The European Regional Organization of Commerce, Clerical, Professional and Technical Employees (EUROFIET) signed an agreement with employers that is extremely important for the principle of equal treatment in professional training. Of course, these examples do not demonstrate that collective bargaining is stabilized at the European level. There is still a long way to go before this goal is reached and employer opposition is a significant, albeit not insurmountable, barrier to the development of collective bargaining. However, there are also examples demonstrating that neither the employers nor the trade unions are interested in initiating bargaining on issues that jeopardize arrangements in which a balance between the parties has already been attained. Presumably, the development of collective bargaining will principally affect issues concerning qualitative aspects, such as working conditions, rather than those pertaining to equal pay or social security, which would require a different resource distribution. However, as we have seen, equal pay and social security are essential in setting bargaining on the road to gender equality and turning around the traditional trend in industrial relations.12

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Myriam Bergamaschi



Conclusions This review has demonstrated how, alongside the feminization of union structures, strategies aimed at achieving gender perspective in policymaking and collective bargaining have been enacted, both at the European and the national level. Gender democracy is crucial in discussing equal opportunity policies and the underrepresentation of women in trade union decision-making bodies. It leads to claims for proportional representation, which would dramatically change the balance of power. Above all, it would strengthen the gender content of the bargaining agenda and underline criticism of the stereotypical model of collective bargaining, which seems to be one of the greatest barriers to the full recognition of the principles of equal treatment and equal opportunity. As a matter of fact, women are largely absent from the collective bargaining process, and the content of agreements at the national level remains male-oriented. Trade union women at European level have determinedly aimed at achieving real bargaining power for women and defending their independent action within the framework of the ‘social dimension.’ Their presence and voice in the first round of European negotiations have proven that women’s needs are identified and their demands pressed. It is a measure of their strength that a strong policy initiative on women’s needs and demands has been maintained throughout the eighties and nineties.

Notes

1.

Although the European Trade Union was set up relatively recently, it has undoubtedly inherited characteristics of affiliated organizations, whose principal objective is the protection of the worker assumed as male, adult, and head of family. See Cockburn 1995a; Cook, et al. 1992; Cunnison and Stageman 1993.

2.

The Maastricht Treaty (article 118A) enables the use of qualified majority voting in the Council in matters of health and safety, working conditions, information and consultation of workers, integration of persons excluded from the labor market and equality between women and men. Unanimous approval by the Council is still required on matters of pay, right of association, right to strike, and right to impose lockout.

3.

After twenty years of employer-side resistance, in 1994 the European Council adopted a Directive 94/45 on European Works Councils (EWCs). The Directive provides for “ procedures for informing and consulting employees in multinational undertakings.” The Directive requires that any undertaking with at least one thousand employees within the Member States and at least 150 employees in each of two Member States must provide a mechanism for information and consultation.

4.

Many industrial relations scholars and union leaders wonder about the future of trade unions, given the decline in membership. Many of them emphasize the need to attract categories of workers who are now generally underrepresented, such as women, and also to modernize collective bargaining. Among those tackling the issue and stressing the gender perspective see: Cockburn 1996; Leisink 1997.

5.

In 1989 the Social Charter, drawn up by the European Commission, was approved by eleven Member States. The British Government refused to sign it, thereby confirming its opposition to the Delors project. Although the Social Charter is not legally binding, it is a fundamental step in the construction of the European Union, because it strengthens dialogue between the social partners and also gives Social Europe a legal framework. See Vogel-Polsky and Vogel 1992; Guarriello 1992, 71– 78.

6.

In the years following the adoption of the plan, the ETUC Executive Committee assessed its progress. The assessment states that, although progress has been made, the political will of the union on gender democracy and equal opportunities is still ambiguous. ETUC policy, it observes, mirrors to a certain degree the ambiguity that surrounds the space offered to women in the labor market. See CES 1997a.

7.

The Women’s Commission has discussed this issue at length, as is witnessed by the various resolution proposals drawn up in 1997. See CES 1997b and 1998.

8.

The ETUC Women’s Committee discussed employment in two European Conferences, at the end of 1997 in Lisbon and in February 1998 in Madrid. Both

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Myriam Bergamaschi

 prepared the political agenda to be presented to the Commission and the European Council. 9.

The Directive on the burden of proof in cases of sex discrimination, adopted by the EC Council of Ministers, aims to adjust the rules on the burden of proof in sex discrimination cases and make the Member States’ procedural measures more effective. The Directive does not go so far as reversing the burden of proof, by requiring an employer to prove a nondiscriminatory reason for a decision.

10.

Training is one of the key elements in improving women’s labor market status. An ad hoc group for Social Dialogue (which brought together representatives of UNICE, CEEP, and ETUC) prepared in cooperation with the European Commission, a “ compendium of good practices in the professional training of women,” which dates back to 1994.

11.

For a detailed account of this issue, see CES 1997c, 2– 3.

12.

For a review of the European Community labor law in relation to pay since 1989, see Ryan 1997.

Chapter 9

 Sexual Harassment: The Impact of EU Law in the Member States Jeanne Gregory

When feminist groups operating within the Member States of the European Union (EU) are asked to comment on the policies of the Union, there is neither a predictable nor standard response. Depending upon their experiences and preoccupations, they may express downright hostility, indifference, ambivalence, cautious welcome, or positive enthusiasm. This love/hate relationship reflects the contradictions within the EU itself. On the one hand, it has provided a framework of sex equality laws within which feminists have often been able to extract reforms from hostile national governments, required by their membership of the EU to comply with its laws. On the other hand, its institutions can be described as remote, undemocratic, and male dominated, created chiefly for the purpose of pursuing economic goals frequently at odds with the feminist agenda. Similarly, its impact on feminism can be seen as either unifying or divisive: its existence has encouraged feminists to develop international links within and beyond EU boundaries, exchanging information, providing mutual support, and building the collective strength to challenge those EU policies that are detrimental to the interests of women. Its policies have undoubtedly benefited some women, mainly white, professional, middle-class women with secure employment and citizenship, but this has often been at the expense of more vulnerable groups, including those whose links to the labor market are precarious or non-existent, unpaid carers, black and migrant women, and those on the receiving end of male violence. Since the creation of the single market in 1992, the contradictions at the heart of EU economic and social policy have been brought into sharper

176

Jeanne Gregory



focus. First, the elitism of the project of European integration, thrown into sharp relief during the negotiations over the Treaty on European Union, has led to widespread disillusionment throughout the EU. Second, the priority given to economic policies at the expense of social policies, epitomized in the harsh convergence criteria for Economic and Monetary Union, is making it difficult to deliver the promise of improved living and working conditions for the peoples of Europe. Third, despite the focus on labor market policies, there is an inevitable spillover into the private sphere. A vivid illustration of these tensions occurred when a fourteen-year-old Irish girl who had been raped was prevented by the Irish court from leaving the country for an abortion. This drew attention to the way in which the Irish government had negotiated a Protocol to the Maastricht Treaty, by which the EU formally recognized the Irish prohibition against abortion. This split the Irish women’s movement into those voting “yes” in the referendum on the Maastricht Treaty, because of the legal and financial benefits accruing to women from EU membership and those voting “no” because they refused to endorse the abortion Protocol (Smyth 1996). The “discovery” of sexual harassment in the Member States and the role of the EU institutions in devising strategies for dealing with it provides an excellent opportunity to explore some of these issues. It demonstrates the importance of networking across national boundaries while also pointing to the pitfalls and limitations of operating within EU institutions. Discovering Sexual Harassment The increase in female participation rates in the labor market in all Member States during the 1980s (Eurostat 1992) coincided with a rapidly declining tolerance on the part of the international women’s movement to male violence against women in all its forms. It was this combination of factors, together with an awareness of the pioneering developments in North America on sexual harassment, that enabled this issue to be identified as a major impediment to women’s equality at work within the EU. Feminist groups in several EU countries drew attention to the endemic nature of sexual harassment in the workplace, and a number of studies were undertaken. In 1981, a German women’s magazine published the results of a survey indicating that, of 4,200 secretaries who returned a questionnaire, 59 percent said they had been sexually harassed.1 A second German study the following year confirmed that sexual harassment was widespread;

Sexual Harassment

177



it found that most women were harassed by colleagues and that very few women complained even when they had lost their jobs as a result of the harassment. Similarly, a series of small-scale studies in the UK in the early 1980s, undertaken by an employment agency and some trade union branches, found more than half the women included in the surveys reporting harassment, rising to 96 percent of women working in traditionally male areas of work. In 1983, the British Trades Union Congress published its first guidelines on “ Sexual Harassment at Work” (TUC 1983) and around the same time the two Equal Opportunities Commissions (in Britain and Northern Ireland) began to publicize the issue. In Ireland, too, the Irish Congress of Trade Unions (ICTU) took an early lead. In 1984 the ICTU annual conference made the elimination of sexual harassment a major union priority, adopting guidelines, including measures that unions could take to prevent harassment. In the Netherlands, the national Parliament discussed sexual harassment as early as 1981 and, in 1984, funded a series of case studies that found that 58 percent of the women surveyed had experienced some form of harassment. The following year, as a result of pressure from trade union women’s groups active in combating violence against women, the Dutch government funded a nonprofit association, Stichting Handen Thuis (the Hands Off Foundation), to combat sexual harassment at work and to offer support, information, and advice to women experiencing sexual harassment. The first large-scale national survey by a Member State was commissioned by the Belgian government in 1984. It found that sexual harassment was widespread and had a serious impact on working women, that the perpetrators of the harassment were most often fellow workers and that single, divorced, and separated women and women under thirty were the most frequently harassed groups. In the same year, a European Commission report on women in paid employment revealed that 11 percent of the women had experienced a severe form of harassment, which could be described as sexual blackmail. In December 1984, the Council of Ministers adopted a Recommendation on positive action that acknowledged that legal provisions on equal treatment were not in themselves sufficient to dismantle discrimination and that more action was needed by Member States “ to counteract the prejudicial effects on women in employment which arise from social attitudes, behavior and structures.” Among the positive action measures recommended, Member States were encouraged to take steps to ensure “ respect for the dignity of women at the workplace.” 2

178

Jeanne Gregory



In 1985, the Association Européen contre les Violences Faites aux Femmes au Travail (AVFT), a feminist pressure group consisting mainly of academics and Members of the European Parliament, was formed. This group sought to raise awareness about sexual harassment in France (Zelensky and Gaussot 1986; Mazur 1996). Pressure for further action at the European level was mounting, from feminist activists such as the AVFT, from femocrats working within the European Commission, and from the Women’s Rights Committee of the European Parliament. At an informal meeting of the Council of Ministers in March 1986 under the Dutch Presidency, the Council asked the European Commission to initiate research into sexual harassment, and Michael Rubenstein was contracted to undertake this work (Rubenstein 1988). In June of that year, the European Parliament considered a report initiated by its Women’s Rights Committee on all aspects of violence against women— a report that exposed the systematic links between male violence and the imbalance of power between men and women, links which sustained gender inequalities in the labor market as well as in the wider society (EP 1986). The European Parliament adopted the report and passed a wide-ranging Resolution on violence against women, covering sexual violence, violence in the private sphere, sexual abuse of children, sexual harassment, women from minority groups and women refugees, trafficking in women, prostitution, and pornography. The section on sexual harassment called on the European Commission to investigate the economic and social costs of sexual harassment at work, to assess the extent to which national labor and antidiscrimination laws provided adequate protection against sexual harassment and to propose a new Directive, if existing legislation were found to be inadequate. Michael Rubenstein’s report was published in 1988, revealing that no Member State had any explicit legal prohibition against sexual harassment and that only in the UK and Ireland had the courts accepted that it was unlawful sex discrimination. The report recommended a new European Directive on sexual harassment, and a Code of Practice giving detailed guidance to employers, trade unions, and women workers on how to implement the new law. The European initiative moved into its most crucial phase, as the key players contemplated their next move. EU ‘Soft Law’ on Sexual Harassment By the end of the 1980s, the accumulated body of research conducted in a number of Member States meant that no one could be left in any doubt

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179



that sexual harassment was an endemic feature of EU labor markets and constituted a serious impediment to women’s equality. As no Member State had passed adequate legislation to address the problem, the case for a new Directive seemed overwhelming, particularly as it had the full support of the European Parliament and the growing number of national experts on the issue. Nevertheless, the European Commission argued that, as sexual harassment already constituted unlawful sex discrimination under the Equal Treatment Directive of 1976, there was no need for a separate Directive. It could be that the Commission was simply being realistic about the chances of persuading the Council of Ministers to accept a new Directive. The only new Directives on women’s rights passed in the 1980s (concerning occupational pension schemes and selfemployed women) had both been considerably watered down before being adopted, and a number of new Commission proposals on equal treatment had encountered increasing opposition as the 1980s progressed (Collins 1996; Hoskyns 1996). A sexual harassment Directive that was acceptable to all Member States might not have been worth the paper it was written on; claiming that sexual harassment was in effect covered by one of the more powerful Directives, passed in a political and economic climate more favorable to women’s rights, could be regarded as the best possible strategy available. An alternative approach would have been to treat sexual harassment as a health and safety issue, so that it could have been adopted under Article 118a, using qualified majority voting in the Council of Ministers. This strategy was subsequently used to by-pass UK opposition in relation to the pregnant workers Directive in 1992 and the working time Directive in 1993, much to the fury of the UK Conservative government. It is possible that there would have been insufficient support from the eleven Member States (excluding the UK) for a definition of sexual harassment in terms of health and safety; in any event, this strategy was not attempted. Referring to the rejection of his proposal for a sexual harassment Directive, Rubenstein comments: “ Given the climate of opinion at the time as to new social affairs Directives generally, and the novelty of the concept of sexual harassment in particular, a Directive was always improbable” (Rubenstein 1992). It was the Irish government that advanced the matter when it held the EU Presidency during the first half of 1990, proposing a Resolution on the protection of the dignity of women and men at work. The Council of Ministers adopted the Resolution in May 1990, affirming that “ conduct of a sexual nature, or other conduct based on sex affecting the dignity of

180

Jeanne Gregory



women and men at work, including the conduct of superiors and colleagues, constitutes an intolerable violation of the dignity of workers or trainees.” 3 The Resolution also called upon the Commission to draw up a Code of Conduct giving guidance on how to create a climate of respect in the workplace. The Member States appear to have welcomed this initiative, regarding it as more symbolic than legal, enabling them to take a principled stance with little or no cost implications (Collins 1996). In November 1991, the Commission adopted a Recommendation on the protection of the dignity of women and men at work and annexed to it a Code of Practice on measures to combat sexual harassment.4 The Code confirmed the definition of sexual harassment contained in the resolution and made it clear that it included unwelcome physical, verbal, and nonverbal conduct. Recommendations are regarded as a form of ‘soft’ Community law in the sense that they do not impose such rigorous requirements on Member States to comply (that is, they are nonbinding) but even as the sexual harassment Recommendation was being drafted, the European Court of Justice ruled that national courts are required to take Recommendations into consideration, particularly where they clarify the interpretation of national law or where they supplement binding measures.5 It is clear from the wording of the Recommendation that, together with the Code of Practice, it was intended to supplement the Equal Treatment Directive, so that tribunals and courts would be expected to take them on board in their deliberations (Rubenstein 1992). The Resolution defined sexual harassment as conduct that is “ unwanted, unreasonable and offensive to the recipient” and included both sexual blackmail, where the rejection of sexual advances leads to victimization, and harassment, which creates “ an intimidating, hostile or humiliating work environment.” Unfortunately, the impact of this statement was partially undermined by the rather tame addition, that conduct falling within the definition “ may be, in certain circumstances, contrary to the principle of equal treatment within the meaning of Articles 3, 4, and 5 of the Council Directive 76/207/EEC.” This form of words, used in both the Resolution and the Recommendation, implies that some types of harassment may fall outside the principle of equal treatment and has provided the excuse for several Member States to introduce sexual harassment measures quite separate from their sex equality laws. There has also been some criticism of the subjective nature of the definition of harassment (Lester 1993). During the course of the discussions on this question, a major shift occurred, from a definition based on

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181



the concept of the ‘reasonable man’— that is, conduct “ which the perpetrator knew or should have known was offensive to the victim” (Rubenstein 1988, 102) to a definition based on the idea of the ‘reasonable victim,’ whereby the effect of the behavior on the recipient and not the intention of the perpetrator becomes the crucial test. This is a major advance, as it allows the woman to define what is unacceptable behavior, but it also leaves her with the responsibility of making a complaint, despite her relative powerlessness and the often serious risk of reprisals. It is also left to the courts to decide whether her complaint meets the standard of reasonableness or whether she has overreacted. This difficulty could have been greatly reduced if an earlier draft of the Code, listing specific examples of physical, verbal, and nonverbal sexual conduct, illustrative of the types of behavior that women find offensive, had been accepted. Unfortunately, this draft did not survive the consultation process (Collins 1996).6 Without the assistance of specific examples, it is likely that the male-dominated national courts will fail to recognize the full range of attitudes and behavior that constitute harassment. The Response of Member States to the EU Initiative All the Member States have responded to the EU legislation and Code of Practice to a greater or lesser degree, but there are still numerous gaps in national laws and an absence of effective procedures for implementing them. Much still remains to be done before the curse of sexual harassment is lifted from EU workplaces. In some countries, the legislation that has been passed is fundamentally flawed; in many countries, some of the key players are either indifferent or hostile to the idea of such legislation and in all countries there are procedural difficulties in ensuring access to justice in practice. To some extent, these difficulties are mirrored in the patchy implementation of EU sex equality laws generally across the Member States (Fitzpatrick et al. 1994, Blom et al. 1996), but sexual harassment law presents some additional difficulties. As we have seen, its discovery is relatively new and only enshrined in EU ‘soft’ law, but it also represents a fundamental challenge to male cultures and can only be effective if men are prepared to change their behavior. As Catherine Hoskyns points out, of all the social policy measures adopted by the EU, only the Recommendation on sexual harassment and the Recommendation on childcare (adopted in 1992) had the direct purpose of changing men’s behavior (Hoskyns 1996).7

182

Jeanne Gregory



The Belgian law was largely the inspiration of one woman, Ms Miet Smet; as a result of her efforts in various key government posts, a Royal Decree on sexual harassment was signed in 1992. The new law employs a broad definition of sexual harassment very similar to the EU definition and requires employers to establish a formal complaints procedure, draw up a list of penalties, and appoint a confidential counselor or service to support victims. According to one commentator, “ Belgium provides the unique example of one determined player in all the right places at the right time” (AVFT 1994, 109). Unfortunately, as the same writer comments, this reliance on one individual was also a source of weakness, and subsequent research has shown that the law has had little impact, largely because it is “ supported least by the people it most needs for effective implementation” (AVFT 1994, 14). Nothing in the law makes the employer responsible for preventing sexual harassment; the identity, training, and method of appointing counselors is not specified, nor are they protected from reprisals; there are no guidelines concerning impartiality or discretion in the operation of the complaints procedures, and the complainant is not protected from victimization (EP 1994). In France in 1991, a newly appointed Deputy Minister for Women’s Rights, Veronique Neiertz, found herself subjected to mounting pressure from women’s groups to make progress on sexual harassment. Madame Neiertz saw herself as a policy entrepreneur, negotiating a middle path between those who wanted no legislation at all and the feminists demanding comprehensive measures backed by strong legal sanctions. Above all, it was important to preserve the distinctiveness of French culture and avoid the “ excesses of North American legislation,” dismissed by Madame Neiertz as “Anglo-Saxon puritanism” (EP 1994, Mazur 1996). The outcome of this approach was a law that defined sexual harassment in terms of the abuse of authority to obtain sexual favors. This means that women working in an intimidating environment, including those harassed by colleagues, have no legal redress. In practice, complaints are likely to be triggered only when there is some retaliation by the harasser, if his sexual advances are spurned, so that the harassment itself will go unpunished. The legislation makes no reference to employer responsibility, and the penalties for violation are slight.8 In 1994, Germany passed its Workers’ Protection Act, obliging employers to protect employees against harassment and regulating the rights of complainants. Unfortunately, the law defines harassment as intentional behavior, thereby ignoring the EU requirement that it is the harm to the

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183



recipient that should provide the basis for legal intervention (Baer 1996). The Dutch law entails an amendment to the Labour Conditions Act and focuses very much on negotiations between the social partners. Employers are obliged to formulate and monitor sexual harassment policies, and victims can claim damages, if employers do not meet these obligations. Sexual harassment is seen as a health and safety issue rather than an equal treatment issue. This means that the gender perspective is lost and that the Equal Treatment Commission has no authority to oversee the legislation (AVFT 1994). The new Portuguese law is confined to a reform of the Penal Code, so that taking advantage of the hierarchical relationship at work becomes an aggravating circumstance. Although the reform stops short of making sexual harassment a criminal act, certain behavior may be regarded as ‘sexual compulsion,’ which is considered a criminal offense (Prechal and Senden 1996). In Luxembourg, too, the focus is on amending the criminal law to make it clear that sexual harassment is a serious matter justifying instant dismissal and requiring the payment of damages to the woman by the harasser and by the employer. The refusal to accept ‘sexual favors’ does not constitute a valid reason for dismissal, and confidential mediators for the benefit of employees must be appointed. In Italy, the new sexual harassment bill approved by the Senate in October 1994 provides for the nullity of any acts “ deriving from blackmail and sexual harassment” and prohibits victimization. There is, however, no obligation for the employer to adopt a policy or protect employees from harassment (Prechal and Senden 1996). The new legislation discussed thus far consists largely of amendments to criminal and civil laws, and will generally be enforced separately from equal treatment legislation. Criminal law involves strict standards of proof and strict rules of evidence and is usually dependent on enforcement by a government official, such as a prosecutor or labor inspector; the case will tend to focus on the harasser rather than the policies of the employer, and sanctions may or may not include compensation for the victim. Civil law procedures are appropriate for terminating the employment contract and claiming damages from the employer, but this involves the complainant leaving her job before she can secure a remedy. It is likely that the use of the new laws will be confined to the most extreme cases of sexual harassment, when the employment relationship has broken down, and irreversible harm has already been inflicted on the people involved. This is certainly confirmed by the limited case law to emerge from most Member States thus far.

184

Jeanne Gregory



In many countries, the new laws sit uneasily alongside existing labor laws that have not been modified to accommodate them. In one Belgian case, the harasser was a male hospital nurse who sedated a female patient and then raped her. He was dismissed on ‘serious grounds’ but had been elected to the works council, which meant that any dismissal had to be verified by the Labour Court. As the employer failed to follow this procedure, the man was entitled to two years severance pay, even if he were to be found guilty of rape by the criminal courts. The Belgian legal experts comment that the burden of proof carried by complainants in sexual harassment cases remains extremely heavy. In one case, a senior manager was dismissed after he touched a secretary’s breasts and put her hand on his genitals. The Industrial Appeal Court ordered the employer to pay compensation to the manager because of the lack of proof and the unfairness of the procedures in not allowing the manager to confront the secretary, whom he claimed had provoked him.9 In France, there appeared to be a coordinated backlash against the new legislation. In two cases in the summer of 1993, employers pursued defamation charges against women who sent formal letters to them alleging sexual harassment and asking that action be taken to stop it. Although the libel cases were eventually dismissed, AVFT members pointed out that such actions constituted an additional factor preventing women from speaking out. In general, French judges seem unsympathetic to women who have been harassed and appear more concerned with the consequences for the man, if he has lost his job. The following case provides a useful illustration of this. The manager of an agency was dismissed as a result of making propositions of a sexual nature. The Courts of Appeal and Cassation both acknowledged that the man’s behavior had been extremely coarse but, nevertheless, considered the dismissal to be devoid of any real and serious cause, considering the generally permissive culture which prevails in work situations, particularly as the employer had tolerated this behavior. This decision could be interpreted as a criticism of the employer for not having a firm and consistent policy against harassers, and it is clearly necessary to protect employees from arbitrary actions by employers, but the consequences of the decision as it stands are to leave the woman with no remedy (Law Network Newsletters 1994a, 44). The Swedish government has been slow to address the issue of sexual harassment, although much of the pioneering research on bullying at work has taken place in Sweden. As Amy Elman (1996b) has pointed out, there is an underlying consensual ideology in Swedish society that makes it unreceptive to the gendered aspects of physical and sexual abuse. In

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185



1997, the Swedish Equal Opportunities Ombudsman asked the government to amend the legislation on sexual harassment, on the grounds that there were no effective sanctions against employers who failed to take action to prevent sexual harassment (Equality Quarterly News 1997a, 35– 36 and 1997b, 41). Almost all the cases in most Member States are, in fact, unfair dismissal cases. Sometimes it is the woman who claims compensation, either because she was dismissed after complaining of sexual harassment or because she constructively dismissed herself when the work situation became intolerable. Sometimes, as we have seen, it is the man who claims unfair dismissal, having been sacked because of his conduct. In the Netherlands, for example, sexual harassment cases invariably center on requests for termination of the labor contract. If it is the employer seeking the termination of the man’s contract, the central issue for the court becomes the implications for the man of acceding to that request. If it is the woman seeking the termination, the employer is held responsible for the harassment, and the woman receives compensation. In two separate cases heard in 1993, the employer’s request for the termination was refused by the courts on the grounds that the employers had not made sufficient efforts to discuss the men’s conduct with them, so they were told to seek a resolution that did not involve dismissal (Senden 1995, 65– 66). In Greece, a woman succeeded in claiming compensation and constructive dismissal on the grounds of an unfavorable change in her contract after she had been harassed by the employer, and in two other cases, women successfully claimed unfair dismissal after being sacked for refusing the employer’s sexual advances (EP 1994, 49). In Italy, a woman dismissed for publicizing the fact that she had been harassed by her superior successfully claimed unfair dismissal; in another case, the judge ruled that sexual harassment is a moral or physical injury for which the employer can be held liable (EP 1994, 55). In a case heard in Milan in 1991, the court ruled that a woman who found herself dismissed following sexual harassment was entitled to damages for the emotional and psychological hardship suffered, to be paid by the harasser; furthermore, the employing firm and the harasser were jointly required to pay damages for the harm done to the physical and mental health of the woman and to pay the legal costs. This line of case of law has been confirmed in subsequent cases (Law Network Newsletters 1993a, 45 and 1994b, 56). The problem of proof frequently constitutes a major stumbling block for complainants, both in proving the harassment and in obtaining adequate

186

Jeanne Gregory



compensation. In Luxembourg, a woman made a complaint of sexual harassment using the civil code; the court did not award the compensation requested on the grounds that she had provided insufficient proof (Prechal and Senden 1996, 58). In Spain, a man dismissed for harassment was unsuccessful in contesting his dismissal in the Social Court but on appeal, the High Court found in his favor, on the grounds that the proof, based on testimonies and earlier accusations of sexual harassment by other employees of the company, was insufficient. The High Court also overturned a case in which the Social Court had deemed the woman’s case to be sufficiently proven and had awarded her compensation. In a third case, the decision in favor of the woman was allowed to stand, but the amount of compensation was substantially reduced. In Spain, there are special rules governing the burden of proof in cases relating to sex discrimination whereby, as soon as a complainant can produce prima facie evidence in support of her claim, the respondent is required to prove the contrary (EP 1994). It would appear from these cases that the Social Court is making correct use of this provision, but that the High Court is hostile to its use, at least in sexual harassment cases. Germany also has special rules governing the burden of proof in sex equality cases, along similar lines to the Spanish rules.10 The German case law presents a rather mixed picture. On the one hand, in the absence of hard evidence in the form of witnesses, courts have traditionally favored the version of events given by the harasser and, as in France, the woman’s complaint may be followed by a libel action against her (EP 1994). In Denmark, Ireland, and the UK, harassment cases are brought under equal treatment legislation, in the way intended by the EC Resolution. In Denmark, the case law is not well developed, as there is a strong preference for using collective mechanisms to resolve sex equality matters. The Danish approach to sexual harassment has been described as “ politically hesitant” (ILO 1992), but following individual legal actions by a few courageous women in the early 1990s, some trade unions have become more supportive of their women members. Most cases are settled before the court reaches a decision; for those cases that do proceed, there appears to be a backlash from the judges, so that cases that previously would have been won by the women are now being decided in favor of employers. There is a tendency to focus on the legal status of the man and to use information about the woman’s sexual history to acquit him.11 In Ireland and the UK, where there has been a steady stream of cases for more than a decade, some important victories have occurred, although

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187



a number of serious issues remain unresolved.12 On the positive side, cases are decided on the balance of probabilities, and circumstantial evidence (for example, that the same man has harassed other women) is permitted. Moreover, the equality agencies in both countries are able to provide information, support, and legal representation for women complaining of harassment and, because the ECJ held that financial awards in sex discrimination cases should be adequate to compensate for the loss and damage sustained, the average award to successful complainants has increased.13 On the negative side, although the courts have accepted that it is the harassment itself that constitutes the discrimination, very few complainants are still working for the same employer by the time the case is heard. Victimization of the woman, even after she has left the company, remains a serious problem, and there is a strong possibility that she will find herself cross-examined about her own moral attitudes, mode of dress, and sexual character. In the final analysis, individual litigation should be regarded as a strategy of last resort, and the responsibility for creating a safe working environment must rest with employers. Under UK case law, the scrutiny by the courts of the measures taken by employers to prevent harassment has become more rigorous over the years. It is no longer an acceptable defense to argue that the harasser was not acting “ in the course of his employment” and that the employer cannot, therefore, be held liable; the employer has to show that reasonably practicable steps have been taken to prevent the harassment. In other words, there must be a harassment policy and a complaints procedure communicated to all employees, making it clear that harassment is a disciplinary offense.14 Irish law on employer liability was changed, following a case in which an employee of the Health Board was subjected to a serious sexual assault by two fellow employees, and the Board successfully denied liability. Ironically, the more serious the harassment, the easier it was to argue that it could not possibly have been authorized by the employer! This loophole has now been closed by a provision in the Employment Equality Act 1996, although employers are still permitted several defenses, one of which is likely to encourage defendants to attack the moral character and sex life of complainants (Equal Opportunities Review 1996, 24). Conclusion Publicity campaigns and media interest have heightened awareness of sexual harassment in most Member States, and it remains very much a

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Jeanne Gregory



live issue both for women’s groups and for femocrats working within EU institutions. Concerted efforts are underway to pursue the issue to a deeper level, by lobbying for stronger sanctions against employers, but also to widen its scope beyond the workplace, drawing attention to the endemic nature of violence against women in both the public and private spheres. The European Commission is delving more deeply by shifting the focus away from providing a remedy for sexual harassment after it has occurred and toward prevention. It proposes a legal definition of sexual harassment, the mandatory provision of counseling, and a legal responsibility for employers to create workplaces free of harassment. Its consultation document is addressed to the social partners, in accordance with the procedures agreed in the Social Chapter of the Treaty. Unfortunately, the European employers’ federation UNICE has thus far rejected the proposals and has been criticized by the European Trade Union Confederation and the European Women’s Lobby for its negative stance. In the absence of negotiation, the ETUC has asked the Commission to initiate legislation, but currently further progress remains stalled. The accumulating body of research from Member States demonstrates conclusively that harassment in the workplace flourishes most where the recipients are least able to protect themselves— where trade unions are weak, indifferent, or non-existent, and where workers lack general employment rights; where the powerlessness of gender is compounded by the powerlessness of youth, single status, sexuality, disability, race, or immigration status. There is a general issue of bullying at work that is only partially captured within the concept of sexual harassment. If the principle of equal opportunity is to have any meaning, it is essential that workplaces become safe and pleasant environments for all workers, making individual litigation unnecessary. Meanwhile, however, it is likely that there will be more complaints of harassment as women become increasingly sensitized to the issue. The risk of harassment rises, however, as the proportion of vulnerable workers increases with the general deregulation of labor markets and the proliferation of part-time, temporary, and shortterm contracts. It is precisely their precarious position in the labor market that makes such workers both vulnerable to harassment and reluctant to complain. There is also much anecdotal evidence to suggest that levels of sexual harassment in those Eastern European countries hoping to join the EU in the near future are extremely high. In terms of widening the scope of intervention, since its Resolution on Violence against Women, the European Parliament has continued to debate such issues as sexual and domestic violence, prostitution, trafficking

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

in women, and degrading advertisements and has called for 1999 to be declared European Year against Violence toward Women (Equality Newsletter 1997, 20– 24). The European Women’s Lobby has established a European Centre on Violence against Women to coordinate information and to lobby for political action at the European level. Attempts by the European Parliament and the European Commission to keep sexual harassment on the EU agenda for future action are to be welcomed, but it would be a mistake to sit back and wait for the EU institutions to deliver powerful solutions. Women’s groups across Europe have played a crucial role in drawing attention to the harmful affects of male violence, including the hugely successful “ Zero Tolerance” campaign.15 It is certain that the major cultural shift required to abolish the sexual harassment and sexual abuse of women will not be achieved without their continued vigilance.

Notes

1.

All the early studies conducted in the Member States are reported in Rubenstein 1988.

2.

Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women. OJ No. L 331/34, 19.12.1984.

3.

Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work. OJ No. C 157, 27.6.1990.

4.

Recommendation 92/131/EEC of 27 November 1991 on the protection of the dignity of women at work; Code of Practices on measures to combat sexual harassment. OJ No. L 49/1, 24.2.1992.

5.

Grimaldi v. Fonds des Maladies Professionelles, Case C322/88 [1990]IRLR 400.

6.

It was Evelyn Collins who worked on the various drafts of the Sexual Harassment Code while on assignment to the Equal Opportunities Unit, DGV of the European Commission (from the Northern Ireland Equal Opportunities Commission). She did her best to produce a hard-hitting and wide-ranging Code, but on some points was overruled by the politicians making the final decisions.

7.

Catherine Hoskyns spans the period from the foundation of the European Economic Community to the signing of the Maastricht Treaty. She also attributes the failure of the draft Directive on Parental Leave in the mid-1980s in part to its intention of changing male behavior.

8.

See AVFT criticisms of the new law in ILO 1992 and AVFT 1994.

9.

Information taken from Law Network Newsletters 1992, 27– 28; 1993a, 31– 33 and 1993b, 42– 43. The newsletters were internal documents of the Network of Experts on the Implementation of Equality Directives, replaced in 1997 by Equality Quarterly News.

10.

The 1997 Directive on the burden of proof in sex equality cases (see chapter 8) requires all Member States to adopt similar rules to those applied in Spain and Germany. The experience of Spain and Germany demonstrates, however, the importance of providing training on sex equality and sexual harassment for the judiciary, particularly for senior judges who have the least familiarity with this area of law but whose judgments can have such a stultifying effect on potentially progressive developments.

11.

An observation made by Peter Breum, the Danish lawyer who has taken almost all the sexual harassment cases to court, quoted in Prechal and Senden 1996, 57 and note 138.

12.

For a detailed analysis of UK case law, see Gregory 1995.

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 13.

Marshall v. Southampton and S.W. Hampshire Area Health Authority, (No. 2), Case C271/91 [1993] IRLR 445.

14.

Throughout the UK, this applies to harassment on grounds of race and disability as well as sex; in Northern Ireland only, religious and political harassment are also covered. UK law is gradually beginning to include harassment on grounds of sexuality.

15.

Zero Tolerance is a poster campaign conducted in major cities throughout the UK, coordinated by local government women’s committees and feminist groups. The theme of the campaign is the unacceptability of domestic violence, with slogans such as: “ He gave her chocolates, flowers and multiple bruising” and “ Behind these great men are the women they battered.” The Daphne Initiative, launched by the European Commission in 1997, is providing funds for European organizations working to combat violence and is making it easier for information about successful campaigns and good practices to be shared across the EU.

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Chapter 10

 The Implications of European Union Policies for Non-EU Migrant Women Eleonore Kofman Rosemary Sales

Introduction Since the 1970s, most European Union (EU) states have been implementing policies aimed at halting immigration, especially primary labor flows, deterring the arrival of newcomers with the right of entry, and encouraging immigrants to leave. These policies have sought to promote greater selectivity in the skills and geographical origin of potential immigrants. While EU states have proclaimed the end of primary migration, however, labor migration has continued, although the conditions under which legal migrants may enter, remain, and seek employment in Europe have become more difficult. These restrictions have caused an increase in undocumented labor migration. There were an estimated 2.6 million undocumented migrants in Western Europe in 1991, although the moral panic over illegal immigrants may have led to inflationary estimates (Engbersen and van der Leun 1998). Family migration has dominated legal migrant flows, constituting well over 70 percent of documented entrants in many EU states (SOPEMI 1997; Lahav 1996). Unlike earlier labor migration, the majority of which was male, family migrants are largely, though not exclusively, female. Family migration also signals the move toward permanently settled migrant populations and the formation of ethnic communities, a development that has been particularly prominent in large cities. In response to these changing patterns, official EU policy has become concerned since the 1980s with the management and integration of immigrant communities, and, more recently, with the existence of an underclass and problems of social exclusion.

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

The issues of immigration and the heterogeneous composition of national states have also become, at times, highly charged political questions with populist fears raised about the disappearance of national cultures. In a notorious speech during the 1960s, Enoch Powell, then a minister in the British Conservative government, warned of the “rivers of blood” that he claimed would flow from continued immigration. The fear that immigrants were “swamping” indigenous British cultures was a theme taken up by Margaret Thatcher in 1978, the year before she became prime minister. In France, issues of national identity and the supposed threat posed by a rapidly growing immigrant population were constructed into the virulently anti-immigrant rhetoric of the National Front under the leadership of Jean-Marie Le Pen. Since winning a by-election in 1983, the National Front has succeeded in influencing the immigration policies of the mainstream parties of both Right and Left, pushing governments toward closing frontiers, implementing deportations and enforcing repressive social policies against undocumented immigrants. Following the massive electoral defeat and partial disintegration of the traditional Right in the national elections of 1997, the National Front is now the leading right-wing party. With its deepening political power at local and regional levels, especially in areas with large populations of North African origin, many migrants find their access to social rights more and more restricted. Increasingly restrictive nationality codes, often directed toward limiting the rights of children to citizenship, have also been passed in many EU states. This is particularly significant in Britain and France where citizenship had been acquired through birth and continuing residence irrespective of the parents’ nationality. The British Nationality Act, which came into force in 1983, made the rights of children conditional on the status of their parents; and under French legislation of 1994, the right to citizenship ceased to be automatic but a matter to be decided by the child upon reaching adulthood. The debate over immigration in the 1990s has become increasingly dominated by the issue of asylum, following the sharp increase in applications. This question has been particularly prominent in Germany which, following the unification of the country and the breakdown of state structures in Eastern Europe, took in over 400 thousand of the total of 700 thousand asylum seekers entering Europe in 1992 (Salt 1995). Germany has been at the forefront of the development of EU policy to harmonize conditions for the entry of immigrants and asylum seekers and measures to deal with those denied entry. Increasingly draconian policies have been developed by intergovernmental institutions such as Schengen and have

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

been incorporated into the implementation of the Single European Market. The driving force has been the control of immigration through tightening conditions of entry, and containing the reproduction of immigrant communities by subjecting family formation and reunification of partners and children to more rigorous conditions. The electoral victories by the center-left in Britain and France in 1997 have brought some respite in the accumulation of anti-immigrant legislation, though the most repressive legislation remains. The United Kingdom government is currently implementing a review of asylum legislation, but it is expected to focus mainly on speeding up procedures rather than on changing the fundamental nature of the legislation. Although restrictive policies have been pursued by intergovernmental bodies and national states, the European Parliament and Commission have attempted to pursue a more positive role. Their recommendations concerning the rights of migrant workers and their families, are not, however, binding on individual states. Despite the convergence of policies on control of entry, the incorporation and integration of migrants and race relations remain largely within the domain of ‘subsidiarity’— that is, the competence of individual Member States. In the categories of migrants seeking entry to European Union states, women are either a majority, as in family migration, or a substantial minority, in the case of labor migrants and asylum seekers. Despite their numerical significance, the specific implications of recent European legislation for women migrants has received little detailed study. The reasons for this neglect may include the invisibility of certain migrant streams, such as undocumented domestic labor, where women predominate; the absence until recently of accurate data broken down by gender, for example, on asylum seekers; and the persistence of outdated interpretations of migratory processes (Phizacklea 1998; Osaki 1997). Immigrant women’s lives are influenced both by policies regulating conditions of entry and by their subsequent incorporation into local and national societies. European Union policy has focused on the former and, though it has significant gendered effects, it has generally been formulated in gender-neutral terms. The policies of individual states, which regulate the conditions under which family reunion may take place and the rules for citizenship, still display major differences and continue to shape women’s lives in different ways within Member States. This chapter begins by charting the feminization of immigrant populations in Europe through the diversification of labor migration as well as the expansion of family reunion. It then outlines the course of recent

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

European Union and intergovernmental policies on women of third country (that is, non-EU) origin. The following sections examine how these policies, in conjunction with those of Member States, impact specifically on migrant women entering Europe through family reunion and as asylum seekers. The Feminization of Immigrant Communities As we have argued, the feminization of immigration in Europe has been underestimated. Although statistical data by gender are limited, it is likely that, of the total of eleven million third country migrants in 1990, at least five million were women (Castles and Miller 1993).1 Formal immigration status may not reflect the actual intentions of immigrants, who will try to fit into the group that most easily enables them to enter Europe. Women are most likely to enter as dependents and be defined primarily as wives and mothers. Many women who enter through family formation and reunification do participate in the labor force, although their dependent status and official restrictions against employment in the early years of residence may force them to seek work in the informal sector, such as in sweatshops, homeworking, cleaning, or domestic labor. Migrants often accept employment well below that appropriate to their qualifications, a situation which has become more common as immigrant flows have become increasingly urban and educated (Anderson and Phizacklea 1997; Kofman 1999). Recent studies of French and German immigration have demonstrated these patterns (Tribalat 1995). Disparity between educational qualifications and employment status was also found in an official British study of refugee resettlement (Carey-Wood et al. 1995). Women move through different status categories in different states according to the rules of residence and citizenship or migratory regime. In states with colonial possessions, such as the United Kingdom, France, and the Netherlands, women migrated in the postwar period of reconstruction both as family members and independently as workers. Family reunification was generally permitted, and even encouraged in France for demographic purposes. Caribbean and Irish flows to the UK included substantial proportions of women, as did Iberian and Yugoslav migration to France. In all these groups, labor force participation was high as people from former colonies filled shortages of unskilled and semiskilled labor and the lower rungs of professional occupations, such as in health and education.

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Where a guest-worker system operated, as in Germany, women first entered as workers. By the end of the period of mass labor migration in the early 1970s, women constituted one-fifth of migrants. Family reunification developed only after it became obvious that foreign workers intended to settle, and the right to reunion was written into a number of bilateral agreements. Immigrant women were concentrated more than indigenous women into a narrow range of occupations. In the third migratory regime, former countries of emigration (Italy, Spain, and Portugal) became countries of immigration from the late 1970s. In Italy, a strong demand for domestic labor has been filled primarily by women from the Philippines, Cape Verde, and Peru. Three related factors have kept this demand high— the increase in women’s paid employment; inadequate services for children, the elderly, and the disabled; and men’s limited participation in reproductive activities within the home (Tacoli 1999). Although many EU states have declared that labor migration ended in the mid-1970s, skilled and elite migration has expanded, including in areas that are highly feminized (Salt 1992; Kofman 1999). Britain and France have relied for many years on doctors trained overseas. Changes in EU regulations concerning the recognition of professional qualifications have made it more difficult for non-EU qualified doctors to be employed as general practitioners in Britain since 1985, or in hospitals following the publication of the official Calman Report in 1996. In the United Kingdom, it is easier for Commonwealth citizens with familial links to gain entry, while the working holiday scheme for Australians aged seventeen to twenty-seven permits a flow of skilled labor that has filled shortages in computing, education, and health. Concessions have been granted in several countries for the employment of less skilled labor, with women concentrated in domestic labor, hotel work, and catering. In Britain, special permits were ended for domestic labor in 1979, but the supply continues, with possibly thirty thousand to sixty thousand workers a year entering the country, mainly from the Philippines, Colombia, Nepal, India, Sri Lanka, and, recently, Poland. Wealthy families are permitted to bring in servants as part of their own household. This leaves them without independent rights or status and vulnerable to physical, sexual, and economic abuse (Anderson 1993). In Italy, employment in this sector has been tightened since 1990, when restrictions were placed on new entrants, while the position of many women working illegally was regularized. Growing demands for the care of children and the elderly, together with the absence or withdrawal of the

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

state from providing such care is likely to increase the need for domestic labor in many European states. The opening of East-West borders has led to new forms of guestworker migration to a reunited Germany (Morokvasic 1993). Job-specific contracts for skilled labor, and for seasonal labor have been opened up for citizens of neighboring states in areas unfilled by German labor. Formal contracts are largely filled by men, but women participate in rotational migration, with different individuals sharing the same job and combining employment and family responsibilities. Other forms of East-West ‘labor migration’ have also developed, such as trafficking of women for prostitution. The main source of immigration into Western Europe in the past twenty years has been for family formation and reunion. It has been most prominent in Belgium and Germany, accounting for the overwhelming majority of legal immigration, excluding asylum seekers throughout the 1980s. It has been less dominant in France and the United Kingdom. The conditions of family reunification reinforce women’s dependent status, and the criteria for eligibility have become more stringent in some states during the past decade. Spouses who cannot meet the requirements have frequently entered under tourist visas and been forced to live illegally. The number of refugees seeking asylum in Europe increased in the late 1980s, reaching a peak of seven hundred two thousand in 1992 (Salt 1995). It is generally acknowledged that women constitute the majority of the world’s refugees (Forbes Martin 1992). They represent, however, a minority of asylum seekers in Europe and an even smaller proportion of those granted refugee status. The figures are not always broken down by gender, but Osaki (1997) found that women composed 45 percent of the refugee population in France, 42 percent in Belgium, and only 20 percent in Greece.2 Approximately 80 percent of asylum applications in Europe come from men, who are considered the main applicant in a joint application. Women entering alone have found it difficult to be accepted as refugees in their own right. The causes of refugee flows are complex, arising from long-term structural developments in the world economy, and specific local political and economic conditions (Overbeek 1995). Over 80 percent of refugees have found sanctuary in neighboring countries (Refugee Council, undated). Those entering Europe or other wealthy nations are facing an increasingly hostile reception. The 1951 Geneva Convention guarantees the right to seek asylum to people with a “ well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular

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

social group or political opinion” but it is the prerogative of the receiving state to decide whether to grant asylum.3 Convention status is now given to only a small proportion of asylum seekers across Western Europe. Some countries, however, continue to accept substantial numbers on humanitarian grounds. This status is known as “ Exceptional Leave to Remain” (ELR) in the UK, or “ tolerance” in Germany and provides a lesser entitlement to education, employment, and family reunification. In Britain only between one-fifth and one-quarter of applications were refused during the 1980s, while the figure increased to 80 percent in 1997 (Home Office 1997). This has been accompanied by a rise in deportations in the 1990s. Mass deportations have also occurred in France and Germany using specially chartered airlines. European Union Policy on Migration European Union policy on migration has been beset by a number of contradictory tendencies. There have been differences between the European Commission and the European Parliament on the one hand and individual Member States on the other over the extent and character of the harmonization of migration policy. This reflects a more general conflict between the integrationist and interventionist project of the European Commission and the reluctance of Member States to cede national authority (Hoskyns 1996). The latter have preferred to operate through intergovernmental groupings, in which national states remain decision makers, rather than through the institutions of the European Union. This division is related to disagreements over policy. The European Commission and Parliament have pursued some limited measures to extend the rights of migrants resident within the European Union, albeit within a general policy of restricting entry, but the agendas pursued by intergovernmental bodies have been based on the least liberal interpretation of international obligations. Much of the conflict has centered on refugees and undocumented migrants. Individual states have adopted an increasingly strident populist response to asylum seekers, often pursuing even more restrictive policies than those agreed by intergovernmental bodies. These differences also reflect the different emphasis given to the social dimension of the European Union by the various parties. Member States have promoted a model of European integration that has been dominated by strategies aimed at extending the market and removing barriers to the mobility of trade, investment, and labor. The Commission, on the other

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

hand, has been more enthusiastic in promoting the social dimension, partly as a means of mitigating the impact of these developments. It has attempted to prevent competitive downgrading of conditions (so-called social dumping) and maintain minimal standards. European social policy has been concerned almost exclusively with workers who are citizens of the Member States. It has drawn much of its impetus and direction from the principle of equal pay between men and women embodied in Article 119 of the founding Treaty. No equivalent statement was included on racial equality. Indeed, the relative success of gender equality policies may have made Member States cautious about developing similar policies on race (Lutz 1994). The measures flowing from Article 119 have been largely confined to promoting formal equality between men and women within the workplace. These are of little relevance to those outside the formal labor market, such as the unemployed or those working without a contract of employment. It thus excludes those in casualized and semilegal work situations— groups composed disproportionately of migrants and women. Although there has been some harmonization of the social rights of EU nationals, policy toward third country nationals has been left mainly to individual states. The Commission’s attempts to establish Community competence in relation to third country migrants have been resisted by Member States (Hoskyns 1996). The Commission was slow to adopt policies specifically targeted toward black and immigrant women. During the 1970s, discussions about migrants’ rights assumed implicitly that their main target was men. It was only in the mid-1980s, when research had demonstrated the specific discrimination encountered by migrant women, that attention initially focused upon these issues. Migrant women had by then become more active and organized vis-à-vis increasingly restrictive immigration policies, changing nationality codes, and growing racism. Intense lobbying from women’s organizations brought recognition of the need to ensure their representation in policymaking bodies, and resulted in a series of reports and policy statements addressing their specific needs.4 These proposals have, however, been opposed by Member States and none has been implemented at either the national or EU level. Policy conflicts became particularly acute with the development of the European Single Market. The abolition of borders within the EU has brought a strengthened external border. Increased rights for EU citizens to travel and work within Member States have been accompanied by restrictions on entry of people from outside, the so-called “ Fortress Eu-

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

rope.” Member States have preferred to operate through intergovernmental institutions outside the scrutiny of the Parliament or Commission. The Schengen Convention was signed in 1985 to establish an area without internal border controls in anticipation of the single market. Its decisions are subject to ratification by member governments, but its agendasetting and decision-making procedures are highly secretive. It now includes nine EU states, and others are negotiating entry. The UK government is unwilling to cede responsibility for border controls to European institutions and remains outside. Some of Schengen’s policies (for example, on common transport carriers’ liability) have, however, been pursued through EU legislation under the Maastricht Treaty and through ad hoc intergovernment agreements including all Member States. The TREVI Group, set up in 1976 to coordinate policy on Terrorism, Radicalism, Extremism, and International Violence, included all EU Justice Ministers. TREVI and its Ad Hoc Group on Immigration were replaced under Maastricht with a new EU Council of Justice and Home Affairs Ministers— the K4 Committee. The main concern of these groupings has been to secure the southern gateway to Europe by bringing immigration control in Southern states into line with the North. These restrictions have been aimed primarily at immigrants from Third World countries, but the collapse of the regimes in central and eastern Europe have fueled fears in western European states of a new source of immigrants, and that these countries would provide a route for other refugees to obtain entry. Agreements have been signed on repatriation with Poland, Hungary, Romania, and the Czech Republic, effectively making them agents of western European immigration control (Fekete and Webber 1994). During negotiations of the Maastricht Treaty, EU ministers agreed to harmonize asylum procedures by 1993— a goal that has not been fully achieved. The Dublin agreement of 1990 restricted asylum seekers entering Western Europe to one application (the ‘one chance rule’). A “ white” list has been published of countries deemed “ safe,” from which applications are presumed unfounded. Designated “ safe” countries include India, Pakistan, Bulgaria, Cyprus, Ghana, Poland, and Romania— all of which include groups facing discrimination and persecution. Of particular concern is the persecution of women in countries such as Pakistan. The harmonization of immigration and asylum policies across the EU has been dominated by a narrow and restrictive agenda, with the current agenda based on a leveling down of provisions among Member States. These developments conflict with the spirit, and sometimes the letter, of

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

international human rights conventions in numerous ways. The “ white” list, for example, contradicts international law, as it provides a “ mechanism of blanket exclusion of certain nationalities from entering any determination procedure” (Fernhout 1993, 501). This does not mean, however, that harmonization should be rejected. Without coordination, differences in policy would channel asylum seekers to more liberal states, producing irresistible pressures for them to restrict entry.5 As policies are developed at a European level, individual governments have implemented their own restrictions. The abolition of borders within Europe has produced more rigorous internal policing of immigrants. Access to welfare services is becoming increasingly conditional upon proof of immigration status. Under the UK Asylum and Immigration Appeals Act of 1993, for example, housing authorities were required to investigate applicants who they have “ reason to believe” are asylum seekers. The UK Refugee Council pointed out that this would lead to “ checks being carried out on the basis of skin color, accent or name” and would increase surveillance of the black population (Refugee Council 1995). There have been some limited moves to harmonize migrants’ rights. The EU presidency put forward a proposal, which was vetoed by the British government, to provide minimal conditions for asylum seekers in Member States. A resolution has, however, been adopted on the right to family reunion for asylum seekers, under certain conditions, although it has no binding power on Member States (JCWI 1993). The Amsterdam Treaty transferred immigration policy (for example, on the entry and rights of third country nationals, family reunion, and asylum) from the Third to the First Pillar of the EU’s decision-making structure. Because issues of terrorism and drug trafficking are dealt with under the Third Pillar, this move ended the unhappy association of immigration with criminality. The move also opened up migration policy to move open democratic influence, as decision making under the First Pillar is shared between the European organizations and the Member States, whereas under the Third Pillar it occurs only at an intergovernmental level. The Commission will now have the right to initiate policy; the Court of Justice to ensure that decisions made by the Council are interpreted uniformly; and the European Parliament to be consulted on policy— not merely informed, as at present. The European Council of Ministers, however, has continued to act as though migration policy had remained in the Third Pillar. In December 1997, ministers passed a Resolution on “ Combating Marriages of Convenience,” which simply serves to reinforce suspicion against mixed marriages. There is, therefore, little sign that they will begin to treat EU citizens and non-EU long-term residents as equals.

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Most of the policies discussed above are not overtly gendered, but, as has been argued elsewhere, they have gendered effects because they are based on the assumption of women’s dependence on a male (Kofman and Sales 1992). The tightening of conditions of entry and residence have tended to disadvantage women disproportionately, reinforcing this dependence and making it more difficult to gain independent legal and social status. Limitations on the right to work and access to welfare have forced many into informal and exploitative employment. Member States have retained their powers to legislate on citizenship and family rights, which are at the heart of national identity. Women, as producers of the next generation and guardians of community values, play a special material and symbolic role in constructing national identity (Anthias and Yuval Davis 1992). The independence of individual states has been most zealously guarded in the areas of policy governing the family. For migrant women, this has meant that differences in the conditions governing family formation and reunion, as well as the rights of women asylum seekers in different Member States, have been particularly significant. Family Reunion The EU has thus far produced no harmonized guidelines and binding legislation on the right to family life for migrant workers. No EU state provides the automatic right for migrants with right of residence to bring their families to join them.6 While all recognize marriages contracted abroad, conditions for the entry of spouses and other dependents vary considerably, as does the definition of the family for immigration purposes. Most states include children up to the age of eighteen, but for Germany the limit is sixteen. Spain, Great Britain, Italy, Luxembourg, the Netherlands, and Portugal allow dependent parents and grandparents entry. They are not included in France, and only in exceptional cases in Germany. Britain allows fiancé(e)s to enter, but they must marry within six months. All states with the exception of Belgium require that families can be maintained by the applicant out of his or her own resources from employment or business, and all require the applicant to demonstrate that they have adequate housing. Dependence on benefit, or, in the British phrase, “ recourse to public funds” is an obstacle to family reunion. This condition presupposes that the spouse will be dependent, and, by implication, that the applicant will be the male breadwinner. Women applicants wanting to bring in husbands have often had to rely on their extended family to provide

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

accommodation and income to meet the legal requirements. Most states grant the right to work to family members entering as dependents. Ireland, however, refuses to grant preferential right to work for family members. Germany allows it after one year’s residence, and then it is limited according to the state of the labor market. Where employment is conditional, the dependence of the spouse is intensified. There is no general right to family reunion even for EU nationals resident in their own country. In some states, including the Netherlands and Britain, spouses of nationals must meet the same criteria as those of foreign nationals. These criteria do not apply in Germany, Italy, or France. Freedom of movement legislation has produced the anomaly that EU nationals resident in another Member State are entitled to bring their family with them, although they may not have this right in their own country. Some British-born women have claimed Irish nationality to keep their husbands in Britain. There are, however, signs that the EU is starting to subject these marriages to greater scrutiny. Legal marriage “ has become, more than ever, the backbone of legal entrance to the EU” (Lutz 1994, 9). Only the United Kingdom and the Netherlands allow nonmarried heterosexual partners to enter, and this only if the institution of marriage is not common in the country of origin. The Netherlands is alone in allowing homosexual partners entry. Proof of marriage is not enough to secure entry for a spouse. In Germany, for example, a migrant man (including noncitizens born in Germany) can obtain an entry permit for a wife only if he has lived in Germany for at least eight years before marriage, and if the marriage has already existed for at least one year. This illustrates the double standard in the treatment of migrant families, since the condition forces the couple to live apart for a year, a period of separation which, in German divorce legislation, is taken as an indicator of marital breakdown. In Britain, spouses formerly had to demonstrate that the primary purpose of marriage was not immigration, even where the genuineness of the marriage was not in doubt. This rule, which was used disproportionately to bar spouses from the Indian subcontinent (JCWI 1997), has been abolished by the new Labour government. In many states, it has become more difficult for fiancés to gain entry, as marriages are viewed with increasing suspicion as a means of gaining immigration status. Each state imposes a period during which the spouse is dependent for residence status on the partner. This varies from one to three years, and, during this time, the dependent spouse is liable to deportation, if the marriage breaks down. It can mean that women are tied to failing, and

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

sometimes violent, marriages to maintain their right of residence and those of their children. The consequences of leaving a violent husband can be deportation to their country of origin “ where they face shame, humiliation and discrimination as rejected, divorced, damaged goods’’ (Newham Asian Women’s Project 1994, 27). Conditions for acquiring nationality vary, but only Portugal allows it as part of the marriage service. Others require periods of residence, and some states place additional conditions. The United Kingdom requires the spouse to be of “ good character” with sufficient knowledge of English. There is currently discussion on the implementation of common guidelines for family reunion, initially agreed in June 1993. European Coordination, the main campaigning body in this area, fears that these are likely to be conceded at the lowest common denominator. This would leave in place the narrow definition of the (nuclear) family and would retain the criteria requiring adequate housing and sufficient income before bringing in a family member. A minimum period of residence might also be imposed before a member could be brought in, representing for some countries such as Belgium the introduction of criteria that did not apply previously. Refugees and Asylum Seekers There has been a considerable amount of recent research on the specific problems faced by women refugees and the difficulties they experience in gaining refugee status (Forbes Martin 1992; Osaki 1997; UNHCR 1995; Crawley 1997; Kuttner 1997; Adjin-Tettey 1997). Another theme to emerge, however, is that women sometimes find it easier than men to adapt to changed status (Summerfield 1993; Refugee Council 1997; Sales and Gregory 1998). European states vary in the ease with which women are able to gain refugee status. Women have found it difficult to be accepted as refugees in their own right, as many administrations are reluctant to accept that women can be autonomous political actors. The process of claiming refugee status is ostensibly gender neutral, but the law does not recognize or respond specifically to women’s experiences (Crawley 1997). Women’s political activity, particularly in states where social norms restrict women’s movements, is often in informal social movements not always recognized as political. Assumptions about women’s dependent status may be compounded with racial stereotypes of the passive Third World woman. In a

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

recent study of the experiences of refugee women in London, one woman described receiving threats to her life from warlords in Somalia as a result of her work with displaced women from both sides in the conflict. The Home Office, however, insisted that she faced only the ‘general problems’ of civilians within the civil war situation (Sales and Gregory 1998). A major area of contention has been the recognition of gender crimes as grounds for asylum. Gender persecution remains excluded from the Geneva Conventions definition and from European Union policy. Some non-European asylum-granting states (for example, Canada, the United States, and Australia) have, however, issued official gender guidelines in relation to asylum claims. In Europe, despite harmonization in other areas of asylum law, there are no generally agreed guidelines on these issues, and it is left to the discretion of individual states and individual judges whether to recognize this form of persecution in granting asylum. This has now become a subject of vigorous campaigning in Europe. In Britain, for example, the Refugee Women’s Legal Group has produced a substantial handbook on the issue and is working with other Non-Governmental Organizations to ensure that the issue is prominent in the government’s current review of asylum legislation (Crawley 1997). Some campaigners have argued that women should be classified as a ‘social group’ for asylum purposes. Applicants would have to show they had suffered serious harm as a result of their sex in the same way as applicants basing their claim on membership of other social groups (AdjinTettey 1997). While this demand has not been accepted, the courts have sometimes recognized more narrowly defined ‘social groups.’ A British judge ordered an Immigration Tribunal to hear the case of a woman who feared stoning for adultery on the grounds that she was a member of a social group (women accused of adultery) within the meaning of the Geneva Convention (Refugee Council 1997). When a man and wife arrive together, the husband is classified as the ‘main applicant,’ except in cases where he is severely mentally impaired, which renders the wife dependent on his status. A German study suggests that this dependence reinforces “ existing power relations in the home country and allows these to continue in Germany.” In Britain, organizations representing refugee women claim that many are unwilling to report domestic violence for fear of jeopardizing an asylum application.7 Current policies aimed at deterring asylum seekers are producing increasing numbers of asylum seekers with insecure legal and social status. In Britain, benefits have been withdrawn from in-country asylum applicants and those taking their case to appeal, leading to widespread destitution and homelessness. The 1996 Asylum and Immigration Act made

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207



it an offense to employ a person with “ no immigration entitlement to work.” In France, it is a criminal offense to give assistance to sans papiers— those without papers and, therefore, without a legal right to remain. These measures have forced asylum seekers into informal employment. A study for the Danish Refugee Council of conditions for refugees and asylum seekers in the European Union found that many were working illegally (Liebaut and Hughes 1997). In London, many thousands of women asylum seekers work in the clothing industry, as homeworkers, and in small factories. Without any regulation or protection, conditions in this form of work are intolerable, and wages are minimal. Conclusion The experiences of migrant women within Europe have become more diversified during the past two decades. Although women continue to predominate in informal and exploitative work situations, many are also occupying higher status work. Research with refugee communities has shown that even those women who enter Europe in the most vulnerable positions have been able to confront this situation and develop strategies to secure greater rights and autonomy. European integration has created a momentum toward ever tighter restrictions on the entry of outsiders, a project that has been eagerly undertaken by many state and regional authorities within the European Union. A degree of uncertainty prevails over matters concerning immigration owing to the current transfer of migration from the Third to the First Pillar. In principle this should open up policymaking in this area to more democratic debate. Another progressive sign is that Non-Governmental Organizations are for the first time being incorporated into the policy determination process. A number of organizations campaigning for migrant rights have developed during this period and some have undertaken the issues raised in this paper, such as family reunion, gender guidelines for refugees, campaigns against women’s dependency in relation to residency and employment, and sexual trafficking. There are indications of substantial popular support for a more humane and just treatment for migrants in the European Union. However, national governments continue to respond to the more antagonistic sectors of popular opinion and maintain highly restrictive policies toward the rights of migrants, refugees, and asylum seekers.

Notes

1.

This includes the undocumented and those who have acquired citizenship.

2.

This includes asylum seekers and those granted refugee status.

3.

The Geneva Convention was passed in 1951 in the aftermath of World War II and at the beginning of the Cold War. It originally referred to refugees resulting from ‘events occurring in Europe’ and was expected to have a limited life span. The Bellagio Protocol, passed in 1967, removed these limitations and marked a recognition of the changing pattern of refugee movements, particularly from outside Europe.

4.

For example, the European Committee on Migration (CDMG), Steering Committee for Equality between women and men (CDEG), Joint Specialist Group on Migration, Cultural Diversity and Equality of Women and Men, Strasbourg, October 1994.

5.

C.D. de Jong, Permanent Mission of the Netherlands to the EU, speaking at the conference on “ Refugee Rights and Realities” Nottingham University, November 30, 1996.

6.

Much of the information in this section comes from JCWI (Joint Council for the Welfare of Immigrants), 1993.

7.

Member of Hackney Refugee Women’s Association, speaking at seminar Refugees and Housing organized by Hackney Refugee Training Consortium, 21.11.1996.

Chapter 11

 European Union Policies on Trafficking in Women Marjan Wijers

Anyone who invests in a little bit of research will find a wide variety of international documents that condemn trafficking in women as a form of violence and a serious violation of women’s human rights. Trafficking in women takes a prominent place on the European agenda, and measures to combat trafficking in women are multiplying everywhere. Many of those measures, however, have little, if anything, to do with protecting women from violence and abuse or with the protection of women’s human rights. Rather, they deal with controlling borders and controlling women’s sexual behavior and mobility. The interests they serve are not those of women, but those of the state—the protection of the state from (illegal) migration and the interest of the state in the regulation of public order and morality, in particular the regulation of the sexual behavior of women. Neither the phenomenon of trafficking in women, nor the attention to it is new. At the beginning of this century, trafficking in women—white slavery, as it was initially called—was the subject of various international treaties. After a period of relative silence, trafficking reappeared on the political agenda in the 1980s. Although there are many—sometimes surprising—parallels between the political debate at the beginning of this century and now, both the understanding of trafficking, as well as opinions on how to combat it have changed. This chapter is intended to present an overview of the current developments and debates about trafficking in women in the European context. One of the fundamental problems in dealing with the issue is the lack of consensus on a definition of trafficking in women. Although the term was mentioned as early as the end of the last century, there is a persistent

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Marjan Wijers



confusion as to what is exactly meant by it, in other words, precisely which practices should be combated. This confusion is reflected today in the various, sometimes contradictory, definitions and concepts used by national governments and European bodies, as well as in the ongoing international debate. Theoretically, this lack of an unambiguous and internationally accepted definition is not surprising. Trafficking in women is a complex phenomenon, which touches various, often extremely sensitive issues, such as sex, money and— an increasingly sensitive issue within the European context— migration. Still, the issue of definition is anything but an academic question. Depending on how the problem is defined, different measures will be proposed to prevent and combat trafficking. Following a short overview of the European and international developments, the different definitions of trafficking in women and their historical development are examined. Within this historical context, a number of trends and themes can be identified, which are then reflected in the current European debate and policies on trafficking. The second part discusses some of the background factors that shape contemporary trafficking, forced labor, and slavery-like practices. The chapter concludes with an analysis of the various approaches and strategies employed by both governmental and nongovernmental agencies, as well as their impact on the women concerned. European and International Developments The 1993 Vienna World Conference on Human Rights was a milestone in that it acknowledged— following years of intensive lobbying by women’s organizations— violence against women in all its forms as a serious violation of women’s human rights. Both the Vienna Declaration and Programme of Action (UN 1993) and, two years later, the Beijing Platform for Action (UN 1995) call for the elimination of trafficking in women and forced prostitution as violations of women’s human rights. In December 1993, the UN General Assembly adopted the Declaration on Violence Against Women.1 One of the forms of violence against women included in the declaration is forced prostitution and trafficking in women. This Declaration was followed by a Resolution on Traffic in Women and Girls in 1994.2 The same year, a Special Rapporteur on Violence Against Women was appointed by the Commission on Human Rights. She received a broad mandate, within the framework of international human rights agreements, to investigate the causes and consequences of

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211



violence against women, including trafficking in women and forced prostitution, and to recommend ways to eliminate its causes and consequences (Coomaraswamy 1997). During the 1990s, EU institutions have also begun to develop a variety of policies on trafficking in women. The European Parliament took the initiative with the adoption of four Resolutions on this issue.3 In 1996, the European Commission, in collaboration with the International Organization for Migration (IOM), organized a European Conference on Trafficking in Women in Vienna, which resulted in the Commission’s Communication to the European Council and the European Parliament on trafficking in women for sexual exploitation.4 At the same time, the Justice and Home Affairs Council adopted four Joint Actions to combat trafficking in human beings.5 Most recently, in April 1997, a EU Ministerial Conference was held in The Hague on the initiative of the Dutch Presidency, which led to the adoption of The Hague Ministerial Declaration on European Guidelines for effective measures to prevent and combat trafficking in women for sexual exploitation (Tweede Kamer 1996). The Council of Europe also actively addressed the issue. Following up the conclusions of the 1991 seminar on “Action against traffic in women and forced prostitution as violations of human rights and human dignity,” a group of specialists was established to develop proposals for action (Council of Europe 1994). This led to the adoption of a Recommendation on the traffic in women and forced prostitution.6 Definitions of Trafficking: Trends and Themes A review of documents produced by the European Parliament, the European Commission, the Council of Europe, the United Nations, the International Organization for Migration, and other European and International bodies shows an ongoing struggle in defining trafficking. Some documents, like the 1996 Resolution of the European Parliament, explicitly address the problem of the lack of a clear and unambiguous definition; other documents merely advanced their own definition or avoid the entire issue by simply not defining trafficking. Significantly, the varying definitions reflect different interests— combining the issue of trafficking in women with other political issues. An analysis of the various definitions and their historical development reveals five major definitional shifts. The corresponding confusions and tensions are reflected in the present debate.

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Marjan Wijers



From Recruitment to Exploitation The traditional definition of traffic in women, as expressed in the earliest treaties at the turn of the century, limits trafficking exclusively to the forced recruitment of women into prostitution, aiming to distinguish the “ innocent” woman who found herself in the sex industry as a result of abduction or deceit from the ordinary prostitute (Bindman and Doezema 1997). The 1910 Convention for the Suppression of the White Slave Trade, for example, obliges States to punish: any person who, to gratify the passions of others, has by fraud or by the use of violence, threats, abuse of authority, or any other means of constraint, hired, abducted or enticed a woman of full age for immoral purposes.

The underlying concern is the protection of “ innocent” women from being lured into brothels. Coercive conditions inside brothels are explicitly not addressed, as these are a “ question of internal legislation,” as clarified in the closing statement of the Convention. In succeeding years, trafficking has been linked to the exploitation of prostitution, and coercion as a defining condition is abandoned. This is exemplified by the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others.7 Whereas the first article addresses the enticing and leading away of women and girls— and, in that sense, only summarizes the previous treaties— the two following articles broaden the scope of the treaty to include the exploitation of prostitution, defined particularly by financial management or rental of premises for the purpose of prostitution. State parties are obliged to combat all forms of exploitation of prostitution. Although still addressed in two separate articles, trafficking in women and exploitation of prostitution are mentioned concurrently. The distinction between the two more or less disappears. Thus the majority of EU Member States, for example, has no specific legislation addressing trafficking in women, but maintain that trafficking is addressed through the general provisions regarding the exploitation of prostitution. In general these provisions criminalize third party involvement, including facilitating or promoting prostitution (Kootstra 1996; Wijers and Lap-Chew 1997). From Coercion to “even with her consent” The 1933 International Convention for the Suppression of the Traffic in Women for the first time considered procurement as a punishable offense “even with her consent.” The 1949 Convention, which remains

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213



the key international guideline on trafficking, also addresses all forms of procurement and exploitation for the purpose of prostitution, with or without the consent of the woman involved. Since the 1980s, the question of coercion or consent is again on the political agenda. A number of more recent definitions reintroduce force or deceit as a crucial element in defining the crime of trafficking. The 1996 Resolution of the European Parliament, for instance, calls upon the Commission and the Member States to provide a “ clear definition of trafficking,” considering that “ the offenses of the traffic in women are not always clearly defined in national legislation or international conventions.” Acknowledging force as the crucial factor, the resolution calls for states: to take action at an international level to draft a new Convention to supersede the obsolete and ineffective Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949); any new Convention should focus on coercion and deception.

This shift in perspective from the 1949 Convention is also embodied in the 1993 Vienna Declaration and Programme of Action, and the 1995 Beijing Platform for Action. Essential in both documents is the recognition that trafficking— not prostitution per se— constitutes a violation of the human rights of the women, because of its core elements of coercion and deception. However, to what force or consent exactly refer is a source of permanent confusion. Relatively clear is the view in which force refers to both the conditions of recruitment and the conditions of work. In this view, the central question is under what conditions one may speak of forced recruitment or forced working conditions, as distinguished from forms of recruitment and working conditions based on mutual agreement. Forced prostitution here is the equivalent of forced labor in prostitution. A more traditional— and still common— interpretation of the free/forced dichotomy refers the free/forced distinction only to the recruitment process. Forced prostitution is the equivalent of forced recruitment. Free or forced in this interpretation does not address working conditions, but merely the way a woman came to be a prostitute— as a result of her own decision or forced by others. Force here refers to forcing “ innocent” women into prostitution. From this perspective, once a woman works as a prostitute, the conditions under which she is working are of no importance. Force defined in this way excludes those women who agree to work as prostitutes, but who are subject to force in the course of their work or

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Marjan Wijers



who are promised other working conditions than those in which they find themselves. Still others view the institution of prostitution itself as a violation of human rights, akin to the institution of slavery. Within this view, any distinction that refers to the will or consent of the woman involved is irrelevant, as no person, even an adult, is believed to be able to give genuine consent to engaging in prostitution. Any distinction between forced and free prostitution is considered to be a false one, as prostitution is, by definition, forced. From Trafficking in Women to Illegal Migration In the 1990s, under the influence of increasingly restrictive immigration policies of the industrialized countries, trafficking in women has become more and more an issue of illegal migration. This development is particularly evident in definitions originating in Western Europe, which tend to equate trafficking in women with the smuggling of aliens, also called trafficking in aliens or trafficking in migrants. The focus moves from violence against women to the issue of illegal migration. The crime becomes illegal entry or residence rather than violence against women. In this perspective the state, rather than the women involved, is the ‘victim’— namely, of migrants who want to enter the country illegally and of smugglers who help these migrants. The women concerned are transformed from victims to outlaws or collaborators, and are, thereby, subject to penalization and expulsion, regardless of the risk to their safety and livelihood. Another confusion resulting from the equation of trafficking in women and smuggling of aliens arises in the context of consent. It is true that many women choose to migrate from one country to another. If one equates trafficking with illegal migration, one may say that a woman is trafficked with her consent. However, although she may consent to (legally or illegally) migrate for work or marriage, this does not mean that she consents to violence and abuse. From Prostitution only to the Range of Informal and Unregulated Labor Over the last fifteen years, new manifestations of trafficking have become visible, such as the trade in domestic workers and trafficking in women in the context of the commercial marriage market (so-called mail-order brides). This development is reflected in numerous more recent documents, such

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215



as the 1994 Resolution on traffic in women and girls of the UN General Assembly and the Beijing Platform for Action, which incorporate all contemporary forms of trafficking and slavery-like practices, whether they be in prostitution, domestic labor, in marriage, or in other situations. Also the 1996 European Parliament’s Resolution goes beyond the traditional concept of trafficking for prostitution only, taking the term of trafficking in human beings to mean: The illegal action of someone who, directly or indirectly, encourages a citizen from a third country to enter or stay in another country in order to exploit that person by using deceit or any form of coercion or by abusing that person’s vulnerable or administrative status.

A common element in all manifestations is the aspect of forced labor and deceptive practices— women and girls are recruited by means of deception, violence, or abuse of authority, and then are subjected to slaverylike conditions. A second common element in the contemporary forms of trafficking is that they invariably occur in those areas that are still considered women’s work— domestic labor and sexual services. Women’s work in these sectors is mostly invisible, and, because it takes place on the verge of the private and public domain, it is often not considered an area of state responsibility. Significantly, trafficking and slavery-like practices predominantly occur in these informal and unprotected labor sectors. From a Protectionist to a Human Rights Perspective The last two decades have shown a move from the conceptualization of violence against women as a private issue to the perception of violence against women as a violation of human rights for which states are accountable, not only in the public, but also in the private, sphere. Illustrative of this development are the 1979 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the 1993 UN World Conference on Human Rights.8 Accordingly, traffic in women and forced prostitution are recognized as a violation of human rights. However imperative it is to approach traffic in women and forced prostitution as violations of human rights, how the issue is defined is crucially important. An example may be taken from the report of Fernand-Laurent (1983), UN Special Rapporteur on the suppression of the traffic in persons and the exploitation of prostitution. In his report Fernand-Laurent approaches traffic in women and exploitation of prostitution from a human rights perspective. Yet, for him this implies that prostitution itself is a form of slavery:

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Marjan Wijers

 While it is true that not all [prostitutes] are tortured, all are nevertheless subjected to the most degrading and destructive form of slavery. (Fernand-Laurent 1983, par. 17)

In addition, he argues that it is important that States cooperate with social organizations, including organizations of prostitutes, “ as long as they do not ask for the recognition of prostitution as a profession.” This view exemplifies the confusion between nature and conditions of labor: for Fernand-Laurent, it is not the working conditions but the nature of the activity that makes it a form of slavery. Compared with other forms of slavery, this is a unique situation. The abolition of slavery did not deal with the abolishment of a certain type of work, but with the abolition of a certain type of power relation— namely, ownership of one person by another person. After the abolition of slavery, people still worked in the cottonfields, and domestic work is still being done. It is only when the discussion is about prostitution that the aim becomes the abolishment of the activity as such, rather than abolishing certain power relationships. Indeed, it is not the work or services (in prostitution, marriage, or domestic labor) as such, but the way these are organized that constitutes a violation of the human rights of the women. Abusive brokerage practices and coercive working and living conditions turn recruitment and work or services rendered into trafficking in women, and forced labor, or slavery-like practices.9 It is in the institutionalized unequal power-relation between men and women that the core of the problem must be found and not in the activities themselves in which women are involved. Background Factors The growing gap between the industrialized and developing countries and the breakdown of economic and political systems in the Eastern European countries affect, in particular, the situation of women and children. Women often find themselves in the paradoxical situation of being responsible for the family income, while not having equal access to the same employment opportunities as men. Consequently, the number of female labor migrants is increasing dramatically. Migrant women from poor countries and regions are mostly relegated to the international markets for female domestic workers, for the sex-andentertainment industry, and the mail-order-bride businesses. The restrictive immigration policies introduced by the European Union further decrease the opportunities for legal migration, even when there is a clear demand for female labor in these sectors.10 The illegal or semilegal char-

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217



acter of these types of work, in combination with insufficient or nonexistent legislation and labor standards, creates the conditions for abusive recruitment practices and exploitative working conditions. Owing to the forms of migration open to them, the nature of the work, and the illegal status of prostitution, women are compelled to make use of the services of dubious organizations and middlemen. This places migrating women in extremely vulnerable situations, subject to abuse by procurers, employment agencies, artist agencies, marriage agencies, and all other kinds of middlemen (Wijers 1998). As a matter of fact, if human rights were applied to prostitutes as to any other citizen, abuses against them could be fought using existing laws. The criminal codes of all countries have legislation against illegal confinement, extortion, coercion, debt-binding, deception, and slaverylike practices. In addition, international guidelines, such as the 1926 League of Nations Slavery Convention, its 1956 Supplementary Convention, and the ILO Forced Labour Convention no. 29, prohibit the crimes mentioned and could very well be applied in the case of the abuses attached to what we call trafficking. Because of prostitutes’ outcast status, however, such legislation is hardly ever applied to situations of trafficking and forced labor practices in the sex industry. Strategies on Trafficking in Women An analysis of current strategies reveals numerous approaches, reflecting the diversity and divergence of the various definitions and interests attached to the issue. Six main approaches can be discerned. Trafficking in Women as a Moral Problem The oldest approach to trafficking in women is based on the moral condemnation of prostitution. Prostitution as such is considered a social evil that should be eliminated. This position is supported by arguments holding that prostitution is incompatible with human dignity or— a more contemporary feminist argument— that prostitution itself constitutes a violation of human rights.11 Prostitution is believed to persist only through the efforts of procurers and pimps— the ‘third parties,’ inducing women into prostitution. The abolition of prostitution and the protection of women against this evil can, therefore, best be achieved by penalizing those ‘third parties’— that is, anyone recruiting for, or profiting from, prostitution.12 The prostitute herself, on the other hand, should not be punished, as she is the victim. Trafficking in women, in this view, is regarded to be just part and parcel of the overall evil of prostitution.

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Marjan Wijers



So viewed, prostitution and trafficking become practically identical. Measures to combat trafficking aim at the elimination of prostitution. In the same way as abolitionists in the previous century worked for the abolition of slavery, modern abolitionists fight for the abolition of prostitution as sexual slavery.13 Prostitutes are basically seen as passive victims of the social and economic system that must be ‘rescued’ or— when they are not willing to accept the identity of victim— made aware of their oppression. They are considered neither equal nor legitimate partners in the debate— subjects capable of assuming individual agency and of judging their own situation and formulating their own needs, demands, and perspectives. Illustrative is a leaflet of the French abolitionist inspired Mouvement du Nid, called Slavery and Prostitution, in which prostitutes are described as slaves who, “ with the help of alert and bright non-slaves” need to be made aware of their oppression, their slave-mentality and false consciousness, so that they will “ awaken” and “ be able to protest, not to ask for arrangements or for the official recognition of prostitution” [emphasis added] and to “ discern their own path toward freedom” (Prostitution and Society 1993, 25). Until the last few decades, the debate on prostitution and trafficking was totally dominated by the abolitionist approach, as represented in the Preamble of the 1949 Convention, which held that: Whereas prostitution and the accompanying evil of the traffic in persons for the purpose of prostitution are incompatible with the dignity and worth of the human person and endanger the welfare of the individual, the family and the community . . .

Although this convention is ratified by very few states, prostitution policies of the majority of European countries are based on an abolitionist view. Being a prostitute as such is not an offense in any of the EU Member States, but the exploitation of the prostitution of others is criminalized, irrespective of conditions of coercion or mutual agreement. Prohibitions include recruitment for prostitution, managing a brothel, rental of premises for prostitution, profiting from the income of prostitution or simply living together with a prostitute. In practice this means that, although to be a prostitute as such is not punishable, actually working as a prostitute is de facto made unlawful, as any type of work requires at least some organization, such as the renting of working space, bringing in customers, cooperation with colleagues, and so forth. Even improvement of working conditions (such as good sanitary equipment or supplying condoms) may be considered to be promoting prostitution, as exemplified

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219



by recent court rulings in Germany (Europap 1995, 102– 103). One step further is the criminalization of clients, as recently has been done in Sweden.14 The impact of such legislation on the women concerned is invariably a combination of stigmatization, marginalization, and social exclusion. Moreover, regardless of how appealing criminalization of clients may appear to some from the perspective of exposing the ‘double moral standard,’ in practice, above all, the women suffer its effects. Not only does it increase the stigma, but it also leads to less safe working conditions by reducing the negotiation time between prostitute and client. The stigma and the criminal charges attached to prostitution, which prevent women from publicly asserting themselves, impede organization of prostitutes, and encourage its association with organized crime. Although the abolitionist approach is still dominant, it is no longer unchallenged. Over the years, prostitutes have increasingly organized to advocate the recognition of sexwork as legitimate work, the decriminalization of prostitution businesses, and the regulation of the sex industry under civil and labor law. Many European antitrafficking organizations share the perspective that the criminalization of the sex industry works against prostitutes. As expressed in the closing Statement of the European NGO Conference on Trafficking in Women in 199715: Legal control of prostitution everywhere serves primarily to safeguard state interests regarding public order, public health, taxation, deterrence of migration, etc., while women working in prostitution are more or less outlawed and deprived of the legal protective mechanisms to which all citizens are entitled. . . . While neither deterring women from entering prostitution, nor protecting the political and civil rights of women working in prostitution, these laws lead to the stigmatization, marginalization and isolation of prostitutes, and in fact legitimize and sanction the abuse and oppression of women in prostitution. (European NGO 1997, 9)

In addition, at the governmental level, the abolitionist approach is no longer unquestioned; both the Netherlands and Germany provide examples of the process of decriminalization of sex work. In the Netherlands, a bill to abolish the overall ban on brothels is submitted to Parliament. In the bill, the commercial operation of prostitution activities on a consensual basis is no longer considered illegal, while the sanctions against deceit, violence, or abuse are raised to fight against involuntary forms of prostitution. The lack of consensus among governments might be one of the reasons that European documents on trafficking avoid the word prostitution, as

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Marjan Wijers



being too controversial. Rather, they prefer to speak about trafficking in women for sexual exploitation, as exploitation can be interpreted both in a pejorative sense (as abuse) or in a neutral sense (as operating, managing, or facilitating), thus leaving untouched the question whether any facilitating of migration for sexwork should be considered trafficking or only those instances where deceit, abuse, or violence are involved. Trafficking in Women as a Problem of Public Order Although all EU Member States formally prohibit any exploitation of prostitution, some countries actually have more or less extensively regulated prostitution, thus combining abolitionist legislation with a regulatory practice.16 Rather than a moral evil that should be eliminated, prostitution is seen as an inevitable or even necessary evil. The existence of prostitution is more or less accepted, but is considered a threat to public health and order that must be controlled and regulated. At the same time, the tax authorities in many EU Member States, such as France, Germany, Belgium, the Netherlands, and Austria impose taxes on income from prostitution, even when profiting from prostitution is formally prohibited. Government policies focus on enforcement of public order through the repression or control of “ indecent” or “ disorderly” behavior and persons. In the interest of public order and public health, regulations are enacted to ban such behavior or such persons as much as possible from public life and public visibility. Regulation generally takes place through different forms of mandatory registration and other methods of state control. These include mandatory medical checks; prohibitions on working outside certain areas or places; prohibitions regarding soliciting, loitering, or related activities; and regulations on the nationality and residence status of the women concerned (for example, prostitution of local women is allowed, but migrant women lose their staying permit if found working in prostitution), often with corresponding penalties for women who fail to comply with those regulations. The principal motivation behind such regulations is the protection of society against this necessary evil. As with the moral approach, prostitutes are not considered to be bearers of rights and their working conditions are not considered a state responsibility. Such regulations often carry negative results for the women involved. Forced registration with the police, for example, can be used to prevent women from entering or leaving the country, and can negatively affect their future employment opportunities and the liberty to change professions, if they so choose (Pheterson 1989). In addition, mandatory registration tends to create a difference

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221



between legal and illegal forms of prostitution. Many women do not want to register for fear of the stigmatizing effects. Other women, like most immigrants, cannot register because of their illegal status. In both cases, women end up in an illegal circuit with all the negative consequences this entails (Wijers 1998). Trafficking in Women as a Problem of (Organized) Crime When trafficking in women is considered to be a problem of the criminal law, strategies are aimed at introducing heavier punishments, improving international police cooperation, and other measures that enable a more effective prosecution of the offenders. Combating trafficking in women thus becomes equated with— and often restricted to— combating organized crime. However, the choice for a penal approach is not without limitations, and the price the women involved must pay may be extremely high. A criminal approach necessarily focuses on individual victims and perpetrators, while ignoring structural causes of complex problems. Moreover, intervention by criminal law is by definition in arrears and covers only a fraction of the actual cases. In practice, criminal laws on trafficking appear to have above all a symbolic value. As the experiences of many women who have encountered abuse reveal, often it seems to be of no importance whether or not the criminal law is effective. Many victims of trafficking have negative experiences with the police, such as arrest, harassment, detention, and, for migrant women, expulsion. Corruption and abuse of power are frequent in numerous countries. Women also refrain from pressing charges for fear that they themselves will be blamed for the abuses committed against them. Indeed, in many trafficking cases, as in other cases of sexual violence, it is the victim, rather than the perpetrator, who stands trial and is prevailed upon to demonstrate sexual innocence. Criminal proceedings can lead to stigmatizing exposure at home, such as when the investigation involves collecting information in a woman’s home country. Pressing charges may also expose women to reprisals on the part of the perpetrators and/or harassment and persecution on the part of the authorities in her home country. Though within the European Union much emphasis is laid on a more effective criminal prosecution of trafficking, only the Netherlands, Belgium, and Italy have taken specific measures to address the needs of victims of trafficking. In these countries, trafficked women who press charges are entitled to a temporary residence permit during criminal

222

Marjan Wijers



proceedings, which includes access to a safe shelter, legal aid, medical care, and social assistance. In the Netherlands, victims of trafficking can also apply to the general State Fund for Victims of Crimes of Violence for compensation for material and immaterial damages suffered by them. In all other countries, victims of trafficking are predominantly dealt with as illegal aliens subject to deportation.17 They have no rights to support and protection, not to mention rights to redress and compensation. These policies render prosecutions of the offenders virtually impossible, as the main witnesses are either deported or too frightened to testify. The interests of the state in a criminal approach are clear. It is less clear, however, how the interests of the women concerned are served. The position of crime victims is a general problem in criminal law, but this is exacerbated in trafficking cases. Prosecution of the offenders does not automatically include rights for the victims. On the contrary, generally, the interests of the women involved are made completely subordinate to the interests of the prosecution. As it is now practiced, a criminal approach seems to worsen the problems of the women concerned and even create new problems, instead of providing solutions. This is not to say that victims of trafficking have no interest in the criminal justice system. Successful prosecution of the offenders may mean a recognition of the wrong that has been done. As expressed by a Philippine woman who was trafficked to the Netherlands, and who fought for many years to get her traffickers convicted, both in the Netherlands and in the Philippines, “ I am not only doing this for myself, but also to give courage to other victims of trafficking, proving to them that there is a way to win justice.” (STV 1991). Trafficking in Women as a Problem of Illegal Migration As examined in part one, trafficking in women has become increasingly identified with illegal migration within the EU. Consequently, policies to combat trafficking in women are predominantly directed at immigration control. Within this view, prevention of trafficking is taken to mean “ to prevent the entry of possible victims,” as worded in the recommendations of the Working Group on Migration Policy at the Conference on Trafficking in Women organized by the European Commission in 1996 (EC/IOM 1996, 50). Measures include tightening visa policies, stricter control of foreigners on the national territory, closer supervision of so-called mixed marriages, and criminalization of third parties who facilitate illegal entry or stay (and sometimes of the illegal migrant her or himself). The basic concern expressed in the EU Conference is how to control borders and the legal status of aliens in the European Union.

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223



Some EU countries explicitly exclude (alleged) prostitutes from legal immigration by arguing that, in doing so, they are combating trafficking in women. The UK, for example, presents the identification of migrant women as ‘possible prostitutes’ at the border and the removal of prostitutes under immigration laws as a means to contain the problem of trafficking in women (Council of Europe 1994). In these cases, the human rights of women are violated by the very measures that purport to protect them. It is, however, not only destination countries that seek to counteract trafficking in women by obstructing migration, especially of young women. So-called sending countries also impose restrictive migration legislation. Clearly, the interests of the women involved oppose those of the state. For them, it is precisely the lack of legal migration possibilities that force them into an illegal circuit. The two latter approaches— trafficking as a problem of organized crime and trafficking as a problem of illegal migration— inspire the 1996 Communication of the European Commission and the Joint Actions on trafficking in human beings and the exploitation of children, adopted by the Council of Ministers of the European Union. Significantly, the Joint Actions on trafficking fall within the third pillar of the Maastricht Treaty, which deals with Justice and Home Affairs— that is, with judicial cooperation in criminal matters and illegal immigration.18 The previously mentioned The Hague Ministerial Declaration, which is a mere declaration of intent, is a relative exception. Compared with other EU documents, it has a remarkably victim-oriented character. It recommends several measures to improve the position of the women affected and to encourage them to press charges. These include a temporary residence permit, proper witness protection, access to social, legal, and financial assistance, fair treatment by the criminal justice system, access to civil action, and compensation mechanisms. At the same time, the need for cooperation with NGOs is stressed, as they are in daily contact with the victims. There are no signs, however, that the EU Member States are undertaking any serious efforts to implement these measures. NGOs strongly oppose the transformation of trafficking in women into an issue of illegal immigration. According to the Statement of the 1997 European NGO Conference: Governmental measures aimed primarily at combating illegality and illegal aliens, ‘protect’ the state instead of the women. Instead of preventing and combating violence against and abuse of women, such measures tend— even when they primarily target recruiters and exploiters— to further marginalize and criminalize the women concerned. (European NGO 1997, 8)

224

Marjan Wijers



This development was also criticized in the 1994 IOM seminar on trafficking in migrants. In his discussion paper, Claude-Valentin Marie, French migration expert, raises the following fundamental questions: Given the substantial means (legislation, regulations and institutions) set up in recent years to restrict all entries by nationals of third countries and to limit admissions of asylum seekers, is there not a (serious?) risk that potential migrant flows may be diverted to totally illegal access channels? Does not this trend toward ‘criminalization’ of individual movements of migrants have the paradoxical consequence of promoting the development of organized trafficking in persons? (Marie 1994, 19)

In Marie’s opinion, almost all the measures devised by states to curb population movements place responsibility on the migrant him/herself, who is the one who is finally penalized. The result of this misconception of the real threat is a continuous building up of controls aimed more at identifying (and punishing) the person who is subject of the traffic than at taking action against the causes of the traffic and those profiting from it. Trafficking in Women as a Human Rights Problem Strategies linked to a human rights perspective are predominantly employed by NGOs. As discussed previously, within this approach, two different currents of analysis exist. For some, prostitution itself represents a violation of women’s human rights equivalent to slavery. Through the language of human rights, such judgment brings us back to the moral approach, in which prostitutes are stigmatized as either victims or deviants and are denied a legitimate place in the public debate. It is, however, very difficult to see how respect for prostitutes can be promoted, if their work is seen as inherently degrading. It is equally difficult to see how the interests of prostitutes can be served by excluding prostitutes’ rights organizations from the political debate, as is still promoted by some feminist groups.19 Seen from the perspective of the women involved, on the other hand, it is the conditions of coercion that violate their human rights, as put in A Vindication of the Rights of Whores: Human rights must include the right to migrate (also as legal immigrants or refugees), the right to work (also as prostitutes), the protection of children against sexual exploitation, and the right of all people to be protected against coercion, deceit, and violence (in or out of prostitution). . . . Migrant rights, (migrant) prostitute rights and (migrant) worker rights are crucial to liberation struggles everywhere. Those rights call for a politics in which neither ‘home’ nor ‘purity’ are idealised and imposed. (Pheterson 1989, 202– 203)

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225



Strategies based on this type of human rights perspective include examining structural causes and ‘mainstreaming’ action to eliminate all gender-based violence. The focus then shifts from protection to empowerment; therefore, participation and self-organization of the women concerned are considered essential. Lobbying focuses on replacement of the 1949 Convention with a new instrument based on female self-determination; upon opposition to all policies that marginalize and discriminate against women, including sex workers; and upon expansion of the definition of trafficking to the range of situations in which women may find themselves in slavery-like conditions. Trafficking in Women as a Labor Problem Building on the latter type of human rights approach, prostitutes’ rights organizations and antitrafficking groups have begun to challenge traditional approaches. Rather than further criminalize all activities surrounding prostitution, they advocate the decriminalization of sex work and the sex industry as a preliminary condition to ensure the civil, political, economic, social, and cultural rights of the women involved. An exemplary approach is taken in a recent report of Anti-Slavery International (ASI): To ensure the protection of sex workers’ rights, it may be necessary to challenge, on human rights grounds, the very principle of restricting the sex industry under criminal law. The argument that sex workers should be entitled to the free choice of work, or indeed any of the labor or human rights discussed here, is of course, void if the State does not choose to define prostitution as work, but simply as an unlawful activity. (Bindman and Doezema 1997, 6)

The concept of trafficking in women is expanded to include other forms of exploitation of women’s work in the informal female labor sectors. Trafficking in women, forced labor, and slavery-like practices are seen as the result of the poor legal and social positions of women— as women, as workers, and as migrants. Therefore, serious doubts are raised as to the appropriateness of the existing antitrafficking policies. The concept of trafficking is questioned as outmoded, and the development of new language to describe abuses in labor migration and abusive conditions in the sex industry is advocated (Bindman and Doezema 1997; Pheterson 1998). Such a perspective opens an entirely new array of instruments to combat violence and abuse in the sex industry. Strategies aim at the recognition of women’s work in the informal sectors as legitimate work, including work in the sex industry, at labor law protection, and at improving working conditions for the women involved (European NGO 1997). In

226

Marjan Wijers



the case of prostitution, for example, brothel-keepers and employers clearly are in positions of power, as long as prostitutes lack any legal protection for their rights as workers. Improvement in the social and legal position of prostitutes would impede traffic in women and would give them the same protection as workers in other labor sectors. The power-balance between prostitutes and brothel-keepers/employers would significantly change, if prostitutes could legally conclude civil and labor contracts; if labor regulations were applicable to work in prostitution; if prostitutes could sue abusive employers and clients, could insure themselves against the consequences of unemployment or illness, and were entitled to state benefits and pensions. Obligations, such as those in the 1949 Convention, to take measures to rehabilitate victims of prostitution clearly do not fit into this view. Instead, enforcement of existing gender-neutral instruments is advocated, such as the ILO Conventions on forced labor, the Conventions on slavery and slavery-like practices, the migrant workers Conventions, and provisions prohibiting debt-bondage. The ILO has tentatively begun to address the issue by researching the situation of migrant domestic workers and migrant workers in the sexand-entertainment industry. A recent study on the growth of the sex industry in Southeast Asia, offers useful considerations for the formulation of effective legal policy and program measures to deal with prostitution: For those adult individuals who freely choose sexwork, the policy concerns should focus on improving their working conditions and social protection, and on ensuring that they are entitled to the same labour rights and benefits as other workers. For those who have been subject to force, deception or violence, the priority should be their rescue, rehabilitation and reintegration in society. (Lin Lean 1998, 212)

The ILO could play an important role in setting standards appropriate to the informal sectors, particularly those affecting large numbers of women, such as domestic work and the sex industry. ILO conventions, such as the Conventions on Forced Labour and the Convention concerning the Protection of Wages could be used to abolish slavery-like practices. Especially relevant in the context of trafficking is, for example, article 9 of the latter Convention, which prohibits “ any deduction from wages with a view to ensuring a direct or indirect payment for the purpose of obtaining or retaining employment, made by a worker to an employer or his representative or to any intermediary (such as a labor contractor or recruiter)” (emphasis added). Until recently, however, governments have rarely followed this approach.

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

Conclusion Within the various approaches, two modes of strategies can be discerned— repressive strategies, aimed at suppressing what is considered ‘undesirable behavior,’ and empowering strategies, used primarily by NGOs, aimed at supporting the women and strengthening their positions. Both repressive and empowering strategies can be of value. However, repressive strategies must be approached with caution, as they tend to confuse other state agendas with the issue of trafficking in women as a violation of human rights. Moreover, they easily give rise to unintended, undesirable side effects for the women concerned. At worst, they can have negative effects on the already precarious position of the women likely to be affected. Strategies that involve strengthening women’s rights consider participation of the women concerned, including prostitutes, to be essential in developing effective change strategies. Support and lobby strategies are directed toward enabling women to have more control over their lives, and toward facilitating their ability to claim their own rights. The final goal is to ensure the legal and social rights of those involved, as women, as migrants, as migrant workers, as domestic workers, as sex workers, and as wives. As long as those rights are not recognized and guaranteed, traffic in women, forced labor, and slavery-like practices will continue to exist.

Notes

This article is largely based on the results of an international investigation carried out by the Dutch Foundation Against Trafficking in Women (Stichting Tegen Vrouwenhandel, STV) and the Global Alliance Against Trafficking in Women (GAATW), on the request of the UN Special Rapporteur on Violence Against Women, Ms. Radhika Coomaraswamy. See Wijers and Lap-Chew 1997. Special thanks go to Jo Doezema for her careful comments and for correcting my English. 1.

General Assembly, Resolution 48/104, 20.12.1993 (UN Doc. A/Res/48/104).

2.

General Assembly, Resolution 49/166, 23.12.1994 (UN Doc. A/Res/49/166).

3.

Resolution on the Exploitation of Prostitution and the Traffic in Human Beings, April 1989, OJ No. 120, 16.5.1989; Resolution on Trade in Women, September 1993, OJ No. 268, 4.10.1993; Resolution on Trafficking in Human Beings, January 1996, OJ No. 32, 5.2.1996; Resolution on the Communication from the Commission to the Council and the European Parliament on trafficking in women for the purpose of sexual exploitation (A4-0372/97), December 1997, OJ No. C 14, 19.1.1998.

4.

COM (96) 567.

5.

These include the extension of the mandate of the European Drugs Unit in the field of trafficking in human beings, the establishment of an incentive and exchange programme for combating trade in human beings (STOP Program), the setting up of a repertoire of centers of excellence in combating trafficking in human beings and sexual exploitation of children.

6.

Recommendation 1325 (1997) on traffic in women and forced prostitution in Council of Europe Member States (EREC 1325. WP, 1403– 23/4/97– 14-E).

7.

General Assembly, Resolution 317 (IV), 2.12.1949.

8.

General Assembly, Resolution 34/180, 18.12.1979.

9.

Coercive conditions can assume many forms, varying from withholding passports and wages, to extortion, blackmail, debt-bondage, deprivation of freedom of movement, threats of reprisals against family-members for not-compliance, and physical violence.

10.

See chapter 10.

11.

See, for example, the position of the French Federation Abolitioniste International (FAI) and the American Coalition Against Trafficking in Women (CATW).

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 12.

This is to be distinguished from a prohibitionist system, still common in many states all over the world, in which both any third party and the prostitute are liable for punishment.

13.

Originally the abolitionist movement was a reaction to the regulatory system of many governments. It was initiated by Josephine Butler (1828– 1906), one of the first British activists against trafficking. The movement was a protest against the double standard of morals for men and women and against the state as accomplice in sustaining abuses in prostitution (“ the state as pimp” ).

14.

In May 1998, the Swedish Parliament adopted a law on the Protection of Women, which makes it a crime to seek paid sexual services.

15.

The NGO Conference brought together participants from seventy-seven NGOs from thirty-one different Western, Central, and Eastern European countries. See European NGO 1997.

16.

Countries that qualify predominantly as abolitionist are, for example, Finland, Denmark, Sweden, Italy, Spain, Portugal, France, Belgium, UK, and Ireland. Countries that qualify predominantly as regulationist are Germany, Austria, Greece, and the Netherlands. The dividing lines, however, are fluent. For instance, although France has abolitionist legislation, it levies taxes on the income from prostitution. See Wijers and Lap-Chew 1997.

17.

For an extensive overview of measures taken by the EU Member States, see the report prepared by the Dutch Foundation against Trafficking in Women (STV) for the EU Ministerial Conference on Trafficking in April 1997 (Kootstra 1996).

18.

The Amsterdam Treaty transferred immigration policy to the First Pillar— that is, from the intergovernmental to the EC decision-making structure. See chapter 10.

19.

For example, the American Coalition Against Trafficking in Women and the French Federation Abolitioniste Internationale. The opposite position is taken, for example, by the Global Alliance on Trafficking in Women (GAATW), based in Thailand.

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 Appendix

Main Provisions of the European Union’s Policy on the Equality of Women Treaty of Rome (1957) Article 119 Each member state shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. For the purpose of the Article, “pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. Treaty of Amsterdam (1997) Article 2 The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 3a, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of

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the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States. Article 3 (2) In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women. Article 13 Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 141 (1) Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. (2) For the purpose of this Article, “ pay” means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer. Equal pay without discrimination based on sex means: (a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement; (b) that pay for work at time rates shall be the same for the same job. (3) The Council, acting in accordance with the procedure referred to in Article 189b, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value. (4) With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Appendix

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

Directives Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. OJ L 45, 19.2.1975. Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. OJ L 39/40, 14.2.1976. Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matter of social security. OJ L 6/24, 10.1.1979. Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ L 225/40, 12.8.1986. Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood. OJ L 359/56, 19.12.1986. Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers who have recently given birth or are breastfeeding. OJ L 348, 28.11.1992. Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave concluded by UNICE, CEEP and the ETUC. OJ L 145, 19.6.1996. Council Directive 96/97/EC of 2 December 1996 amending Directive 86/378/EEC on the implementation of the principle of equal treatment for men and women in occupational social security schemes. OJ L 46/ 20, 17.2.1997. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. OJ L 14/6, 20.1.1998. Council Directive 97/81/EC of 15 December 1997 on the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC. OJ L 14/9, 20.1.1998.

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

Soft Laws: Recommendations and Resolutions Council Resolution of 12 July 1982 on the promotion of equal opportunities for women (approval of Action Programme 1). OJ C 186, 21.7.1992. Council Resolution of 7 June 1984 on action to combat unemployment among women. OJ C 161, 21.6.1984. Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women. OJ L 331/34, 19.12.1984. Council Resolution of 3 June 1985 on equal opportunities for girls and boys in education. OJ 7 C 166, 5.7.1985. Council Resolution of 24 July 1986 on the promotion of equal opportunities for women (approval of Action Programme 2). OJ C 203, 12.8.1986. Council Resolution of 16 December 1988 on the reintegration and late integration of women into working life. OJ C 333, 28.12.1988. Council Resolution of 29 May 1990 on the protection of the dignity of women and men at work. OJ C 157, 27.6.1990. Council Resolution 91/C of 21 May 1991 on the third medium-term Community action Programme on equal opportunities for women and men (1991– 1995). OJ C 142/1, 31.5.1991. Council Recommendation 92/241/EEC of 31 March 1992 on childcare. OJ L 123/16, 8.5.1992. Council Resolution of 22 June 1994 on the promotion of equal opportunities for men and women through action by the European Structural Funds. OJ C 231, 20.8.1994. Council Resolution of 27 March 1995, on participation of women in decision making. OJ C 168, 4.7.1995. Council Recommendation 96/694 of 2 December 1996 on the balanced participation of women and men in the decision-making process. OJ L 319/11, 10.12.1996. Provisions of the Commission of European Communities CEC. New Community Action Programme on the Promotion of Equal Opportunities for Women 1982– 1985, December 1981, COM (81) 758 final. CEC. Equal Opportunities for Women: Medium-term Community Programme 1986– 1990, COM (85) 801 final.

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 Notes on Contributors

Myriam Bergamaschi is researcher at the Centre for Research in Labour History and Industrial Relations Giuseppe Di Vittorio (a Foundation linked to trade unions), Milan. Her research has focused on gender relations in trade unions, on equal opportunity and on working conditions for women in the workplace. Publications include Un benessere insopportabile. Identità femminile tra lavoro produttivo e lavoro di cura (Angeli 1995); Questione di ore. Orari e tempo di lavoro dall’ottocento ad oggi (Serantini 1997). Francesca Bettio is Associate Professor at the Department of Economics of the University of Siena and coordinator of the European Commission’s Network of Experts on the Situation of Women in the Labour Market. She is the author of The sexual division of Labour: the case of Italy (Oxford University Press 1988) and (with Mark Smith and Emilia del Bono) Gender and Working Time Policies (European Commission 1998). Jeanne Gregory is Visiting Professor and Head of the Gender Research Centre at Middlesex University. Her book Sex, Race and the Law: Legislating for Equality was published by Sage in 1987; since then she has published articles on equal pay, sex and race discrimination, sexual harassment, rape and sexual assault, women in legal systems, and women refugees. She has undertaken research for the Equal Opportunities Commission in Britain and for the European Commission in the Member States of the European Union. She is joint author of Policing Sexual Assault and joint editor of Women, Work, and Inequality, both published in 1999. Catherine Hoskyns is Jean Monnet Professor of European Studies at Coventry University, UK. She has written extensively on gender politics in the European Union. She is the author of Integrating Gender. Women Law and Politics in the European Union (Verso 1996).

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

Eleonore Kofman is Professor of Human Geography at Nottingham Trent University. She has written widely on the politics of international migration in Europe; French urban theory; and new developments in political geography. Her publications include Globalization: Theory and Practice (edited with Gillian Youngs) (Pinter 1996); “ Gender, rights and migrants in the European Union” in Toby Fenster (ed) Gender, Planning and Human Rights (Routledge 1998); “ Citizenship for some but not for others: spaces of citizenship in contemporary Europe” in Political Geography (1995); and Gender and International Migration: employment, welfare and politics (with Annie Phizacklea, Parvati Raghuram and Rosemary Sales) published by Routledge in 1999. Joni Lovenduski is Professor of Politics at Southampton University. She is the author of Women and European Politics (Wheatsheaf Books 1986), and coauthor, with Pippa Norris, of Political Recruitment: Gender, Race and Class and the British Parliament (Cambridge University Press 1995). She has coedited many books on the political behavior of British and European Women. Ilona Ostner, is Professor of Comparative Social Policy at GeorgAugust-University Goettingen. She has written extensively on gender and welfare, family and social policies, labor market and welfare state. She is joint editor (with Stephan Lessenich) of Welten des Wohlfahrtskapitalismus (Campus 1998). Maria Grazia Rossilli is a sociologist and freelance researcher. She has published widely in journals and books on international and European Community policies on women. She is the coauthor (with Giovanna Procacci) of “ L’action des organisations internationales pour une égalisation des conditions féminines” in Christine Fauré (ed), Encyclopédie politique et historique des femmes (Presses Universitaires de France 1997). She is the editor of a monographic issue of Europa Europe 1997 (3) on “ Le politiche dell’Unione Europea per le donne.” She is a member of the Italian Society of Women Historians. Jill Rubery is a Professor of Comparative Employment Systems at the Manchester School of Management, UMIST and also the director of the European Work and Employment Research Centre. From 1991 to 1996 she was coordinator of the European Commission’s Network of Experts on the Situation of Women in the Labour Market. She is coauthor, with Frank Wilkinson, of Employer Strategy and the Labour Market (Oxford University Press 1994) and with Jane Humphries, of Economics of Equal Opportunities (Equal Opportunities Commission, Manchester 1995).

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261



Rosemary Sales is Principal Lecturer in Social Science at Middlesex University. Her research interests include migration theory and policy; gender and social policy; and gender and religion in Northern Ireland. Publications include Women Divided: Gender, Religion and Politics in Northern Ireland (Routledge 1997); (with Eleonore Kofman) “ The Geography of Gender and Welfare in the New Europe” in Maria Garcia Ramon and Jianice Monk (eds) South and North: Women’s Work and Daily Lives in the European Community (Routledge 1996). She has coedited (with Jeanne Gregory and Arianne Hegewisch) Women, Work and Equality: the Challenge of Equal Pay in a Deregulated Market (Macmillan 1999). Mark Smith is a Research Associate at the European Work and Employment Research Centre at the Manchester School of Management, UMIST. He has research interests in atypical work and labor market transitions. He is the author of Women and European Employment (with Jill Rubery, Colette Fagan, and Damian Grimshaw) (Routledge 1998). Julia Adiba Sohrab is Doctor of Law of European University Institute, Florence, Italy. Currently practicing as a solicitor at Bindman & Partners, London. She has published Sexing the Benefit: Women, Social Security and Financial Independence in EC Sex Equality Law (Dartmouth 1996). Eliane Vogel-Polsky is a professor of Labour Law (Belgian, comparative, European and international) at the Free University of Brussels. She is also a Research Director at the Centre for Sociology of Social Law at the Institute of Sociology of the Free University of Brussels. She is the author of Europe sociale 1992: illusion, alibi ou réalité? (Editions de l’Université de Bruxelles 1991), Women and European citizenship (European Commission 1994), and a number of articles on the legal critique of the theory of equality between the sexes. She is currently working on women and governance for the Forward Studies Unit at the European Commission. Marjan Wijers works for the Foundation Against Trafficking in Women (STV). She is the coauthor (with Lin Lap-Chew) of Trafficking in Women, Forced Labour and Slavery-like Practices in Marriage, Domestic Labour and Prostitutution (GAATW/STV 1997). She is the coauthor, with Cees Flinterman and Roelof Haveman, of Basic Principles for a Code of Conduct Within the Member States of the European Union to Prevent and Combat Trafficking in Women, Report for the Dutch Ministry of Social Affairs and Employment (1996).