Introduction

• Author: Renga, Simonetta
• Pages: 5-8

5

1Introduction

1.1Basic structure of the national legal system

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 formalnotion of equality.1It 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.

This legislation finds its roots in Article 3 of the Constitution. Article 3, Paragraph 1

provides a formal rule of equality as a constitutional right,stating:

‘All citizens are equal and have equal dignity under the law, without distinctions on

grounds of sex, race, language, religion, political opinions and personal or social

conditions.’

The prevailing interpretation of this provision is that no differential treatment is allowed if

it is grounded on the elements forbidden by Article 3. The second paragraph of Article 3

provides the basis of the definition of substantive equality:

‘It shall be the responsibility of the Republic to remove all obstacles of an economic

and social nature which, by limiting the freedom and equality of citizens, hinder the

full development of the human person and the effective participation of all workers

in the country’s political, economic and social organisation.’

Substantive equality is grounded on the attribution of relevance to the differences existing

between categories of persons, which are grounded on their belonging to different genders

or ethnic, racial or social groups, in order to remove all the adverse consequences

1In this report we prefer to use the notion of gender discrimination rather than sex discrimination, as it is

closest to the term used in our legislation.