European Court of Justice - Essay Example

In Defrenne v. Sabena (1976) E.C.R. 455, the European Court of Justice d that Article 119 (as it then was) had both an economic and a social justice objective. Critical analysis of how the European Court of Justice balanced these objectives? Introduction Equality between women and men has always been the concern of egalitarian societies throughout the history. Number of studies and researches have been based to actually define the working and balanced relationship between men and women. Developed world has recently put a lot of effort to achieve the goal of equality between these two pillars of society but imposition of a new doctrine over preceding ideology requires more than just construction of laws. In this regard, efforts of European Union cannot be ignored which has been proactive in this endeavour since the first decision of European Court of Justice titled “Defrenne v. Sabena (1976) E.C.R. 455”. This case marked the foundation of EU’s future policy targets regarding gender equality whose horizon has now expanded to implementation of gender mainstreaming in all public policies whether at supranational or national level (Beveridge, et al., 2000). ECJ on this case ruled stating doubling effect of Article 119 of the EEC treaty such as economic and social. The order stated that both men and women are subject to receive equal social security benefits for the same work. The court further extended its prospects to private employment practices too. Defrenne v. Sabena manifested a new beginning in elimination of all kinds of gender discrimination from society. Given policy directions of ECJ for gender equality, the progress and success in this field is remarkable which has not only provided social justice and human dignity to women rather it has opened gateway for other developmental goals in every walk of life. Initially Article 119 was specifically defined equality among men and women at workplace but significant body of legislation has further been derived from this principle. In this context some of positive benefits derived from justice rulings are worth mentioning such as maternity benefits, pre-retirement benefits, equal treatment, training, fuel subsidies, equal treatment in social security, parental leaves, elimination of part time and full time discrimination and many more authorities have been issued which directly strengthen women equality to men (European Network of Legal Experts in the Field of Gender Equality, 2013). No doubt women have also struggled for their rights and equality but efforts of Gabrielle Defrenne provided legal implementation to their regime. This paper examines gender equality doctrine under ruling of the case “Defrenne v. Sabena (1976) E.C.R. 455” as Article 119 of Treaty of European Community has been stated with reference to doubling effect. Whereas this study will analyse the social and economic benefits of gender equality at workplace that convinced European Court of Justice to rule in favour of Gabrielle Defrenne. Economic Objectives of Gender Equality Europe has been the victim of both World Wars and in the aftermaths of wars, the whole world especially Europe faced the economic crisis, food shortages, lack of resources, poor health and all miseries that on could expect were there. How did the world overcome the shortfall? It was hardworking labour force which brought Europe out of the crisis and in the process one cannot ignore the participation of women who worked alongside men and fed their families. Role of women in every society has been significant and when it comes to a working woman, the responsibility multiplies. Recently in 2007, world faced economic crisis and so many suffered even EU suffered the most. Equality between men and women can help overcoming the current economic crisis. Gender equality when it comes to economic benefits can make a difference as direct labour force. If gender inequality prevail in a workplace then consequently, balance between uses of human resource dismantle and ultimately productivity (Williams & Dellinger, 2010). The most important economic objective of gender equality at workplace is the extent to which offices/ corporations/ countries manage to avail the best of their provided human capital. Statistics provided by European Institute for Gender Equality (EIGE) revealed that among 27 EU states, the highest percentage of women working in government sector in 2012 were 39% while 61% jobs in government sector were occupied by men. On the other hand gender equality at workplace is still not ensured. After government sector highest ration of working women was as researcher in higher schools at 37%. Contrastingly only 19% of women in EU-27 states were involved in Business enterprise sector (European Union , 2013). Data provided above clearly depicts underutilization of women workforce. Apart from direct economic objective, second benefit of gender equality is mediated through positive externality in the form of next generation. A significant body literature supports the argument that if a woman is equally provided with education and economic opportunities as men, the investment on women will lead to better long term impacts than men (Mahlck, 2003). Specifically the micro level impact can be explored in the next generation as they are likely be more literate and productive. So, equal opportunities and capital resource allocation increases growth and productivity, reduces expenses and losses, and ultimately company’s performance increase leading to national growth. Gender equality can be associated with company performance. When a company provides equal opportunities to both gender, it bring diversity in the working team and whenever a critical situation arises; the team produces holistic strategies which improve company’s decision making capabilities hence productivity is achieved. Another important economic aspect of gender equality for employment opportunities is that investment in women helps improving work intimidation, innovation, staff retention and aligns bottom line of the company (Kolb, 2013). According to work intimacy theory, individuals are derived by the rewards which motivates them to perform efficiently. Equal payment to women as men will encourage women workforce participation to work. It enhances and boosts individual’s ability to perform and yield outcomes whereas improved productivity later on enhances economic growth. Almost 70% of the women in this world earn below poverty. Irrespective of the fact that they belong to developed countries or developing but they are the victim of economic distortions. Availability of equal opportunities to women will increase their participation to workforce and in turn will help them earn for their families. Equal employment opportunities at workplace allow families to grow above poverty line whereas poverty in indirect relationship to economic development. So, the economic growth of societies is dependent on families’ income. Now, income discrimination for male and female leaves families with less income to spend and in turn poverty increases. Governments around the globe spend millions on such programs to reduce poverty and boost economy while gender inequality goes unnoticed. This is why, most of the developing countries have consistently failed to overcome the vicious circle of poverty. It is said that in developing countries labour is usually cheap as children and women work on low wages which is beneficial for industrial growth but in fact this gender discrimination is the only reason why they are still developing even after centuries have passed (Zhuang, 2010). Failure to define the balanced employment relation of male and female is the root cause of poverty and economic growth in any economy. Women participation in offices usually stands around 40% of the total labour force and among them hardly 10% can make it up to the management positions. Since top management in any corporation is considered to be the critical machinery of the company but in almost all firms whether public or private, women are faced with so called glass ceiling phenomenon. Absence of women in leadership positions leaves a gigantic gap between optimal performance and the current performance. Managerial gap at top positions between men and women affects the performance and innovation level of the firm. Women at management positions bring diversity to organisation’s structure such as corporate decision making, communication, innovation, work environment, profits, transparency and accountability, team building and financial performance. Statistics presented by Carter in 2007 showed that companies with more women in management positions yielded significantly higher returns on sales, investments and equity (Carter, 2007). So, gender equality in employment at management positions can produce results with greater difference since management skills of women if compared to men have been credited as best performer (McKinsey & Company, 2007). Finally, many studies have focused on the direct impact of gender equality economic growth but there is marginal literature on the reverse relationship that economic growth also entails gender equality. Mainstreaming development of gender role defines the relationship that with more growth, gender equality is encourages (Pollack & Hafner-Burton, 2000). Given the economic constraints and scarce resources, it can be justified that women are not given the equal right and are being discriminated. Considering the reverse relationship if society has development, then most certainly gender equality can easily be promoted. Literature in this regard combines the struggle for economic development with gender equality. This doctrine states that in a closed competition, it is easy to discriminate between genders but when economies open up their market to global competition; the threat of scarcity is eliminated in liberalized economy. Women are no longer ignored hence there is margin for more labour force and receive equal employment facilities whose latent implications boost economic development (Dowd, 2009). So, globalisation promotes gender equality and in turn sharp economic growth takes place. In most of the societies, there lies a discriminatory pattern of financial and moral support among families and society when a woman decides to become an entrepreneur. Women are not presented with equal economic opportunities even when they decide to be their own boss. Most of the time start-up businesses require initial fund to manage preliminary operational costs. Though women are considered to pay their loans back in time if compared with men, even then they are rejected and under presented as women would fail to manage financial decisions (Ahl, 2004). It is evident from study patterns that men follow market trends and start businesses while women chose to be entrepreneur out of desires to exploit market gaps where investment could be innovative. No doubt, innovation comes with a risk but it is also associated with higher profits and growth. So, given equal economic and financial opportunities by leaving gender discrimination aside women in every walk of their life can produce better economic growth than men. Social Objectives of Gender Equality Women in any part of the world are habitually associated to bringing their child in this world and that is where woman’s job starts. Most interestingly this job has no payment and it never ends. Now with the changing societal dimensions and ideologies, women are working in office but still the motherhood job still prevails which forces woman to work in double shifts to feed her family (McGlynn, 2000). Women are usually expected to work part time or temporary which at first constraints their abilities to deliver for company’s growth and on the other hand company pay them marginal to their work. Male spending 8 hours at office receive 100 percent payment while woman working 8 hours receive 70 percent of the male salary payment which by all means is unfair to a woman (Kelan, 2009). Now in this scenario, woman works equally to men for the same time period and the work is identical but in return she gets less pay along with participatory exclusion at office. After work men are expected to be resting at home but female are required to feed the whole family, she have to fulfil all the motherly needs of her family. Well, of course this discriminatory behaviour at workplace would have been enough to decide in favour of Gabrielle Defrenne but the social miseries of gender discrimination did not end here rather this case opened the gateway for women rights. The most important social aspect related to this Article 119 of TEC for equal pay of woman to man at workplace is woman’s health. Men at workplace were entitled to take medical leaves but in contrast women did not had such privileges. If women wanted to bore a child then they were required to leave jobs because after 9 months of pregnancy women were expected to take care of their babies. Given the financial costs, inflation and marginal salary, it used to be a great burden to bore a child with healthy lifestyle. Now, whole family was supposed to rely on one person: the head of family. In such circumstances, what else can be expected other than male dominance at home because whole family was feeding from the money he earned. It was necessary to validate equal pay for male and female so that financial burden on family especially on woman could be reduced. After this case of Defrenne v. Sabena (1976) E.C.R. 455, many cases, committees and legislation for women rights at workplace were passed for equality of women rights such as committee on women’s rights has been established, advisory committee on equal opportunities is in place and annual report on gender equality is published to keep an eye on rights situation. In further legislation Article 119 of TEEC was then replaced with Article 141 of TEC and then after Lisbon Treaty, it is now used known as Article 157. In cases of Melgar (1999)1 and Brandt Nilson (1995)2; court ordered in 2001 that they cannot be dismissed and in the process their re employment for fixed term was called invalid because they were pregnant. In last couple of decade European Union has been very keen to eliminate gender discrimination for which many health system reforms, health education awareness trainings, health policies and health care financing reforms have been brought to life. The purpose of these services and steps is to increase quality of care and to decrease gender discrimination. A study conducted by OECD revealed that on average the life expectancy of women is more than men which imply that after death of their husband women are forced to spend rest of their lives alone by themselves. This future insight requires women to plan for their after retirement lifestyle during their jobs. Now, with discriminated pay and medical financial costs how survival for women could be possible. In this regard, pension plans for retirement, fuel subsidies, pregnancy leaves3, and maternity leaves4 have now become part of European legislation. Women in their life are more exposed to life taking diseases than men such as cervical cancer, pregnancy, osteoporosis, breast cancer and menopause etc. Exposure to such severe diseases produce a self-declared sickness tendency among women while the psychological behaviour of discrimination at workplace, at home or in society makes her more weak which is unhealthy for women and for the whole family. Women are keener to educate their families and particularly their children. If women are provided with equal economic opportunities and financial resources equal to men, they can produce the future leaders and can play a significant role in shaping society (Skelton, et al., 2006). Secondly human behaviour is determined by the experiences that happens to them. If a woman is working in a company where women are not paid highly and are not encouraged to utilize equal economic opportunities as of men then certainly it will shape her personality and will become part of her culture. Such personality with fear of gender discrimination will develop a submissiveness in her and she will teach her children about male dominance and in turn the whole culture of that society will start following this ideology gender discrimination. So, it is necessary to provide equal rights to women at workplace and everywhere because social construction requires healthy culture and teaching for grooming which can only be provided if women experience it so. Providing equal pay to women as compared with men economically empowers females and helps reducing poverty. Around 70% of the women in this world live below poverty line. As discussed earlier that economic growth is dependent on poverty reduction where as one aspect of poverty is under paid labour in the form of females and children. Poverty is a social as well as economic evil of the society, if women are provided with higher pay which they deserve. They will have more to pay back to their families and will help reducing poverty. Higher salary payment to women will encourage illiterate adults/ girls to attain higher levels of education. Education in the longer run will pay off and will become an asset for national growth. Improved legislation and establishment of committees is not sufficient rather efforts should be put into awareness campaigns and educational mainstreaming of the society should be developed. Awareness programs at workplaces will politically empower women to fight for themselves (Iversen & Rosenbluth, 2010). Political empowerment will strengthen women to fight for their rights hence the whole chain of equal gender rights could easily be constructed. Conclusion Gender discrimination and social roles were not developed in day, it took millions of year to establish the dominance of males in the society. Gender discrimination cannot just vanish by the ruling of respected judges and by making legislation rather the mainstreaming of all public institutions, companies, societies and people can serve the purpose. Struggles and legislation measures of European Union have revolutionized the gender roles but still a lot of efforts and gender gap is still needed to be removed. In this paper, couple of economic benefits have been mentioned if countries and corporations understand the true essence of gender equality that will provide it with large number of work force that has been under presented for centuries. Gender discrimination is a major obstruction to growth and due this hurdle world has never explored the optimal level of productivity. In European Union, many incidents of unequal pay go unnoticed as hundreds of families are forced to work at cheaper rate only due to their illegal migration (Shaw, 2000). Let’s agree to it that women have started receiving equal then next hurdle will strike at promotion and consequently women will not be provided with equal opportunity to join top management positions. According to the OECD survey statistics, European Union can extend its productivity up to 13% by eliminating gender discrimination. Similarly social benefits such as poverty reduction, education, political empowerment, cultural development, gender mainstreaming and social upbringing of children can be achieved through eliminating gender discrimination (Organisation for Economic Co-operation and Development, 2008). So, it can be justified that the decision issued by the European Court of Justice had wisdom in referring doubling impacts under Article 119 of TEEC otherwise gender discrimination has both social and economic costs to the national growth. Gender equality in all spheres of life requires development of positive attitudes towards women rather than only legislation and reinforcement. Policy making without women involvement cannot be sufficient to eliminate male dominance hence women should be given representation in every sphere of society either cultural, social, political or economic. References Ahl H., The scientific reproduction of gender inequality: a discourse analysis of research texts on womens entrepreneurship (Copenhagen Business School Press 2004). Beveridge F, Nott S & Stephen K., Making Women Count: Integrating Gender into Law and Policy-Making (Ashgate 2000). Carter N. 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