Implementation of central concepts

AuthorRenga, Simonetta
Pages11-23
11
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implementation and limits of central concepts of gender
equality law
Although scholars hav e debated t he 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 of equality: 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 harassm ent,
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 b e
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 discrimination is 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 c omparison 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 b y focusing on the
individual situat ion of disadvantage, rather than on that of the group.6 It 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.
2 Ballestrero 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.
3 See 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.
4 See 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.
5 See 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.
6 See 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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT