AuthorRenga, Simonetta
1 Introduction
1.1 Basic structure of the national legal system
Article 37 of the Italian Constitut ion of 1948 states both equality at work b etween 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 necess ity of protecting
women as weak subjects of the labour market. The logic of protection prevailed over that
of equality for the n ext 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 p regnancy, 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 E EC 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 f ield of gender equality an d non-discrimination.
However, Act No. 903/1977 mainly addressed d irect 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 addr essed by
Act No. 125/1991, thus implementing once again a conc ept of substantive equality. Later
on, Act No. 53/2000 provided for bi-directional (that is to say: in favou r of both women
and men) positive action geared to wards the reconciliation of professional, privat e 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 dign ity under the law, without distinctions on
grounds of sex, race, l anguage, religion, political opinions and personal or social
The prevailing interpretation of this provision is that no differential treatment is allowed if
it is grounded on the elements forbidden by Ar ticle 3. The second paragraph of Article 3
provides the basis of the definition of substantive equality:
It shall be the responsibility of the Repu blic 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
1 In 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.

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