Gender-Based Positive Action in Employment in Europe: A Comparative Analysis of Legal and Policy Approaches in the EU and EEA

Abstract

This report considers the use of ‘positive action’ as a key mechanism to advance women’s equality in employment, and to ensure gender-balanced company boards. ‘Positive action’ involves the use of measures that are taken by Governments or other actors to: enable or encourage members of ‘protected groups’ (such as women) to overcome or at least reduce current or past disadvantages (including discrimination); to meet the needs of the protected group that differ from other groups; or to enable or encourage those in the protected groups to participate in a particular activity where they might otherwise be under-represented. The report identifies the current legal and regulatory frameworks and scope of positive action in European Union law and policy, and in the 28 European Union Member States (including the United Kingdom), and the three members of the European Economic Area (comprising Iceland, Liechtenstein and Norway). The report aims to lay bare tensions and gaps that may arise in the applicable legal framework between different levels of legal authority, but in particular between EU law and national approaches to positive action. Addressing this issue involves a reflection on whether there are possible inconsistencies or shortcomings in the current EU legal treatment of positive action (including the jurisprudence of the Court of Justice of the European Union). In light of this analysis, the report makes recommendations for possible European Union action, including suggestions for actions that may be included in any forthcoming EU gender strategy.