European Equality Law Review – Gender Equality through the law on pregnancy discrimination, maternity and parental leave

EUROPE: EQUALITY LAW

1st Semester 2018

Report edited by the European Commission and produced by the European network of legal experts in gender equality and non-discrimination (EELN), with a contribution of Jule MULDER, «Promoting substantive gender equality through the law on pregnancy discrimination, maternity and parental leave», European Equality Law Review, 2018/1, p.38.

This seventh European Equality Law Review contains four in-depth articles in equality and non-discrimination law (pp.1-49). The report also provides a summary of recent gender equality and non-discrimination cases pending or decided by the Court of Justice of the European Union and the European Court of Human Rights from 1 July to 31 December 2017 (pp. 52-58) and an overview of the latest developments in national gender equality law, policy and jurisprudence in the 28 Member States of the European Union, Iceland, Norway, Liechtenstein, Serbia, Macedonia, Montenegro and Turkey from 1 July to 31 December 2017 (pp. 60-120). The author of the fourth in-depth article (pp. 39-49) examines how pregnancy and maternity discrimination could be avoided. She first analyzes this issue through the prism of substantive gender equality (pp. 40-42). She namely stresses that in addition to the biological differences between women and men, gender differences are constructed in the occasion of pregnancy; women are expected to give the priority to childcare over their professional work (p.39). Protective measures for pregnant women can reinforce female gender roles that go beyond the medical needs (p.41). The law should therefore not only protect pregnant women but also challenge the circumstances reinforcing the gender prescriptive stereotypes (p.42). The author then examines the EU legal framework, namely the Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, the Framework Agreement on Parental Leave (revised in 2009) and a new proposal of the European Commission on work-life balance. She also analyzes recent case law of the Court of Justice of the European Union. The court namely distinguishes protecting measures related to the women’s biological state and protecting measures related to the parenthood because parenthood can be exercised by both parents. It considers that traditional gender roles may be perpetuated by the exclusion of men from the parenthood leave (see judgement of 30 September 2010, C-104/09, Álvarez, points 31 and 36, cited p.43). However, the author draws the attention to the potential descriptive character of stereotypes and therefore, to the risk to leave women in a worse situation by retiring them rights for the benefit of men (p. 44). The author then analyzes the strengths and weaknesses of the Shared Parental Leave in the United Kingdom (Equality Act 2010) and in Germany (Mutterschutzgesetz and Gesetz zum Elterngeld und zur Elternzeit) in the light of substantive Gender Equality and of the European legal framework (pp. 45-48). Finally, she does some recommendation for the future EU law.
Direct to the report (ec.europa.eu)