Positive action can be lawful

Positive action aimed at addressing past discrimination has been declared lawful by the European Court of Justice. In this important ruling the judges have said that employers can give priority to women applicants where male and female candidates are equally qualified, provided that this does not occur automatically and unconditionally.

In a claim which has far-reaching implications for discrimination law, the judges ruled on the legality of measures aimed at improving the ability of women to compete in the labour market. It sought to clarify a number of positive action measures which had been introduced in Germany.

These included:

* giving priority to women where candidates are equally qualified;

* prescribing binding targets for women's employment in the university sector where these reflect the proportion of women graduates;

* offering at least half of any training places to women;

* guaranteeing that where male and female candidates are equally qualified, women will always be called to interview; and

* recommending that measures be introduced to make employee representative bodies adopt an objective of at least 50% female membership.

The judges noted that there was evidence that, even where women and men were equally qualified, there was a tendency to appoint the male candidate due to prejudice and stereotypes concerning the role and capacity of women candidates. In other words the mere fact that a female and male candidate were equally qualified did not mean that they had the same chances.

Employers who attempted to address this by giving priority to women candidates were not contravening EU law, provided that they had carried out an objective assessment of the equally qualified candidates which took account of their specific personal situations. The judges also ruled that the other actions were lawful.

Application by Badeck and others. Case C-158/97. The Times Law Reports 31 March 2000.