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Published online by Cambridge University Press: 27 October 2017
Is it legitimate to use discriminatory policies to achieve equality? As official support for reverse discrimination or affirmative action policies becomes more common among member states of the European Union, so does the potential for legal challenge. Yet no clear answer has yet been given by the European Court of Justice. The controversial European Court of Justice decision in Kalanke, striking down an affirmative action policy, was followed only two years later by that in Marschall, which signalled a significant change in approach to affirmative action policies. This change of attitude is likely to be tested in a variety of different ways in the near future. The next affirmative action case, Badeck, is now awaiting the opinion of the Advocate General, and a Swedish case is waiting in the wings. Both these cases are likely to take the Court into far stormier waters than those already traversed in Kalanke and Marschall.
1 Austria, Spain, Finland, Norway and Sweden all intervened in the Marschall case in support of the policy at issue. Note in particular the argument by the Finnish government that occupational training and sharing of family responsibilities was not enough to end job segregation.
2 Case C-450/93 Kalanke v. Freie Hansestadt Bremen [1995] ECR 1-3051.
3 Case C-409/95 Marschall v. Land Nordrhein Westfalen [1998] IRLR 39.
4 Case C-407/98 now named Anderson and Abrahamsson v. Fogelqvist. For the questions referred to the ECJ, see OJ 1999 C 1.
5 Treaty of Amsterdam, Article 141 (Article 119(4)).
6 Article 13 of the EC Treaty (inserted by Article 6a of the Amsterdam Treaty).
7 These arguments are developed more fully in Fredman, S. “Reversing Discrimination” 113 (1977) Law Quarterly Review 575 Google Scholar.
8 See ibid.
9 Dworkin, R. A Matter of Principle (Clarendon Press, 1985) 299 Google Scholar.
10 Directive 76/207/EEC OJ 1976 L39/40.
11 Above n 2.
12 Johnson, L. P. Address at Howard University (4 June 1965) cited in Thernstrom, A. “Voting Rights, Another Affirmative Action Mess” 43 (1996) UCLA Law Review 2031 Google Scholar, n 22.
13 Williams, B. “The Idea of Equality” in Laslett, P. and Runcimann, W.G. Philosophy, Politics and Society (2nd ser, 1965) 110, 125–126 Google Scholar.
14 Above n 2 at para. 35.
15 Ibid.at para. 26; and see Case 312/86 EC Commission v. France [1988] ECR 6315, at para. 15 and Kalanke [1996] All ER (EC) 66, para. 18.
16 Above n 2 at para 29.
17 Ibid. at para. 31.
18 Schiek, D. “More Positive Action in Community Law” [1998] ILJ 155 Google Scholar; Schiek, D. “Positive Action in Community Law” [1996] ILJ 239 Google Scholar.
19 Sex Discrimination Act 1975, s.l(l)(b)(i).
20 For examples and further discussion see Fredman, S. Women and the Law (Clarendon Press, 1997) 287–300 Google Scholar.
21 Medium term Community Action programme on equal opportunities for women and men: see EC Equal Opportunities Magazine No. 2 July 1997; and recommendation 96/694/EC OJ 1996 L319.
22 All the examples of German measures are taken from Colneric, N. “Making Equality Law more Effective: Lessons from the German Experience” 3 (1996) Cardozo Women’s Law Journal 229 Google Scholar, 239 ff.
23 See Eagle, M. and Lovenduski, J. High Time or High Time for Labour Women (Fabian Pamphlet 585, 1998)Google Scholar.
24 Hessischer Staatsgerichtshof, Judgment of 22 December 1993, P.St. 1141, cited in Colneric, above n 22 at 240.
25 Jepson v. The Labour Party [1996] IRLR 16.
26 Case C-158/97.
27 I am grateful to my students Hendrik Lackner and Carin Westerlund for their help in translating the German and Swedish materials.
28 For a more detailed discussion, see Fredman, above n 7 at 590-596.
29 Franks v. Bowman Transportation Co. 424 US 747, 96 S Ct. 1251 (1975).
30 107 S Ct. 1442 (1987).
31 This is partially due to the fact that the case law is based on the Equal Protection Clause of the 14th Amendment, which requires equal protection of the law without specifying grounds for discrimination, such as race or sex.
32 Personnel Administrator of Massachussetts v. Feeney 422 US 256 (1979).
33 University of California v. Bakke 438 US 265 (1978) per Powell J.
34 115 S Ct. 2097 (1995).
35 See AG Jacobs’s Opinion in Marschall, above n 3.
36 The most recent cases appear to have come down in favour of requiring identified discrimination: Bush v. Vera 116 S.Ct 1941 (1996).
37 University of California v. Bakke 438 US 265 (1978).
38 Wygant v. Jackson Board of Education 106 S. Ct 1842 (1986).
39 Bush v. Vera 116 S.Ct 1941 (1996).
40 Voting Rights Act, s.2(a).
41 See eg Thernstrom, A. “Voting Rights: Another Affirmative Action Mess” 43 (1996) UCLA Law Review 2031 Google Scholar.
42 Shaw v. Reno 509 US 630 (1993); Miller v. Johnson 115 S Ct 2431 (1995); US v. Hays 115 S Ct 2431 (1995); Bush v. Vera 116 S.Ct 1941 (1996).
43 116 S Ct 1894 (1996).
44 Bush v. Vera above n 39 at 1969-1970.
45 Ibid, at 1971 per Kennedy J; 19972-19973 per Thomas and Scalia JJ.
46 Stevens, Ginsburg and Breyer JJ.
47 See Bush v. Vera, above n 39.