Country report, gender equality. How are EU rules transposed into national law?: Italy 2020

Article 37 of the Italian Constitution of 1948 states both equality at work between men and women and women’s right to working conditions that allow them to fulfil their essential family functions and grant adequate protection to the mother and the child. The ambiguity of this rule rests on the principle of equality being flanked by the necessity of protecting women as weak subjects of the labour market. The logic of protection prevailed over that of equality for the next 30 years. During that period, alongside instruments of protection necessary to allow women to fulfil their family functions (such as protection against dismissal on grounds of marriage or pregnancy, compulsory maternity leave, and a ban on heavy and unhealthy work during pregnancy and motherhood), there was an excess of protection that discouraged women from working. The influence of the EEC Directives No. 75/117 and No. 76/207 on equal pay and equal treatment between men and women, led to the employment legislation on women to be re-written according to the principle of equality and the protection of women was coordinated with equality. In particular, following those two directives, Act No. 903/1977 was introduced, which was the first piece of legislation on implementing the principle of non-discrimination between men and women as regards access to employment, vocational training and promotion, and working conditions. The influence of EU directives has always been, therefore, absolutely crucial in the field of gender equality and non-discrimination. However, Act No. 903/1977 mainly addressed direct gender discrimination and, as such, implemented a formal notion of equality.1 It was only with Act No. 125/1991 that a substantive conception of equality was pursued: the act also introduced a wider and clearer notion of indirect discrimination and positive action. The concept of indirect discrimination opened the door to the evaluation of material obstacles to equality, thus leaving aside formal equality. Positive action, provided only in favour of women, aiming to remove all the material obstacles that hinder the fulfilment of equal opportunities, was addressed by Act No. 125/1991, thus implementing once again a concept of substantive equality. Later on, Act No. 53/2000 provided for bi-directional (that is to say: in favour of both women and men) positive action geared towards the reconciliation of professional, private and family life.