Implementation of central concepts

• Author: Renga, Simonetta
• Pages: 11-23

11

3Implementation of central concepts

3.1General (legal) context

3.1.1Surveys on the definition, implementation and limits of central concepts of gender

equality law

Although scholars have debated the meanings of concepts of equality and non-

discrimination in the past, there are no surveys or reports available on these issues.

Scholars regard the principle of non-discrimination as the reverse side ofequality: as

equality means abstraction from differential characteristics of individuals, the principle of

non-discrimination regards giving relevance to these differential characteristics as illegal.2

The extension of the concept of discrimination to harassment and sexual harassment,

which are infringements of the absolute right to individual dignity, helped the evolution of

the notion of discrimination from a relative concept, needing a comparator in order to be

assessed, to becoming an absolute concept, which can be defined in terms of social

disadvantage or of infringement of fundamental social rights, different from equality.3

As regards direct discrimination,scholars stress the bi-directional character of the notion,

which addresses both women and men, as well as the irrelevance of the discriminatory

intention, given that the notion is based on the differential impact of the treatment.4

According to legal theories, the concept of indirect discriminationis based upon the three

structural characteristics provided by both the EU legislation and the CJEU case law, which

have greatly influenced the development of these concepts in Italy. The three

characteristics are: apparent neutrality of the criterion under examination; particular

disadvantage of one sex as compared with persons of the other sex, which according to

some scholars does not mean existence of an effective prejudice;5 absence of objective

justification. Indirect discrimination is seen among academics as allowing the overtaking

of the individual dimension of equality, thus giving value to the link between the individual

and the group to whom she/he belongs: indeed, the comparison test to detect

discrimination is made between groups. However, some academics affirm that, in the light

of the EU legislation, indirect discrimination can also be assessed by focusing on the

individual situation of disadvantage, rather than on that of the group.6It is widespread

opinion that indirect discrimination is deemed to imply the evaluation of material obstacles

to equality, thus leaving aside formal equality in favour of substantive equality.

2Ballestrero M.V. (1994), ‘Le azioni positive fra eguaglianza e diritto diseguale’ (Positive action, equality and

unequal legislation) in: Ballestrero M.V. & Treu T. (ed.) Legge 10 aprile 1991, n. 125, Azioni positive per la

realizzazione della parità uomo-donna nel lavoro, Commentario sistematico, Nuove leggi civili commentate,

p. 14.

3See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The

new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto

antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII.

4See on this issue: Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The

new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto

antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII; Guaglianone L. (2007), ‘Le discriminazioni basate sul

genere’ (Gender discriminations) in: Barbera M. (ed.), Il nuovo diritto antidiscriminatorio, Milano, Giuffrè

pp. 261-265; Izzi D. (2003), ‘Discriminazioni senza comparazione? Appunti sulle direttive comunitarie di

seconda generazione’ (Discriminations without comparator? Notes on the EU directives of second

generation) Diritto delle relazioni industriali, p. 423.

5See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The

new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto

antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII.

6See on this issue Barbera M. (2007), ‘Il nuovo diritto antidiscriminatorio: innovazione e continuità’ (The

new anti-discriminatory legislation: innovation and continuity) in: Barbera M. (ed.), Il nuovo diritto

antidiscriminatorio, Milano, Giuffrè, pp. XXXI-XXXVII. The author supports her findings by quoting Barnard

C. & Hepple B. (2000), ‘Substantive equality’ Comparative Law Journal, p. 568.