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The Concept of “Genuine and Determining Occupational Requirements” in EU Equality Law: A Critical Approach

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The European Union as Protector and Promoter of Equality

Part of the book series: European Union and its Neighbours in a Globalized World ((EUNGW,volume 1))

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Abstract

The concept of ‘genuine and determining occupational requirements’ (GDOR) is an exception that derogates from the non-discrimination principle. It causes, for that reason, significant normative tension that becomes manifest in its enactment in secondary law and its interpretation through case-law. Commenting on the contribution of Prof. Maliszewska-Nienartowicz to this volume, this chapter discusses some of the challenges that the concept of GDOR presents. It first addresses the tension inherent in the very concept of GDOR, which is best understood through an overview of the jurisprudential development of the conditions attached to this exception. Subsequently, the specific function and necessity of such a concept are analyzed through the critical lens of the relationship of the GDOR to the traditional role of a justification-based approach. The chapter then turns to the problem of hierarchy and differentiation among protected grounds related to GDOR. The chapter concludes with an outline of additional challenges lurking in the yet unchartered waters of the practical application of GDOR in EU law, such as the admissibility of objectives linked to consumer preferences, other fundamental rights, or the interrelation of GDOR and the concept of reasonable accommodation.

All the views expressed in this chapter are purely those of the author.

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Notes

  1. 1.

    See, on the equivalent exception in US Law, Sirota (1977), p. 1025 (1029).

  2. 2.

    Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, OJ L 39/40 (1976). Article 2(2) of Directive 76/207 states: ‘This Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor’.

  3. 3.

    See, for example, the concept of ‘genuine occupational qualifications’ in the United Kingdom’s Sex Discrimination Act of 1975 or the concept of ‘bona fide occupational qualification’ in the United States’ Title VII of the Civil Rights Act of 1964.

  4. 4.

    Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206, paras. 34–36. While nature is intrinsic to the job, context is circumstantial and dependent on the specific conditions in which the job must be carried out in a specific case.

  5. 5.

    Case 165/82, Commission v United Kingdom (ECJ 8 November 1983), EU:C:1983:311, para. 16.

  6. 6.

    Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206, para. 35.

  7. 7.

    Case 222/84, Johnston (ECJ 15 May 1986), EU:C:1986:206.

  8. 8.

    Case C-273/97, Sirdar (ECJ 26 October 1999), EU:C:1999:523.

  9. 9.

    Case C-285/98, Kreil (ECJ 11 January 2000), EU:C:2000:2.

  10. 10.

    Article 2(2) became Article 2(6) by virtue of Council Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working condition, OJ L 269/15 (2002). See, on the need to adjust the definition of GDOR, Proposal for a Directive of the European Parliament and of the Council amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, COM(2000) 334 final OJ C 337 E/204 (2000) of 11 July 2000.

  11. 11.

    Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303/16 (2000).

  12. 12.

    Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22 (2000).

  13. 13.

    The conceptual shift was already apparent in the Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999) 566 final of 25 November 1999, pointing at similar definitions in the legislation of Denmark, Ireland, the Netherlands and the United Kingdom.

  14. 14.

    Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 35.

  15. 15.

    Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 36.

  16. 16.

    See e.g. Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3, para. 43.

  17. 17.

    Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371, para. 55.

  18. 18.

    Case C-447/09, Prigge and Others (ECJ 13 September 2011), EU:C:2011:573, paras. 73–75.

  19. 19.

    See e.g. Ellis and Watson (2012), p. 381.

  20. 20.

    See, famously, Case C-177/88, Dekker (ECJ 8 November 1990), EU:C:1990:383, for the CJEU case law in which disparate treatment referring to characteristics intrinsically linked to the protected ground is considered direct discrimination, Cloots (2018), p. 589 (605–608).

  21. 21.

    Pitt (2009), p. 1 (6–7).

  22. 22.

    This also follows from the Recitals of each of the non-discrimination directives. See, for example, Recital 19 of Directive 54/2006 on Directive 2000/78, Recital 19 of Directive 2000/43 or recital 23 of Directive 2000/78.

  23. 23.

    See, regarding Directive 2000/78, ECJ, C-188/15, Opinion of Advocate General J. Sharpston, 13 July 2016, EU:C:2016:553, para. 101.

  24. 24.

    Indeed, those elements may explain the different results in Case C-229/08, Wolf (ECJ 12 January 2010), EU:C:2010:3; Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371 and Case C-258/15, Salaberria Sorondo (ECJ 15 November 2016), EU:C:2016:837.

  25. 25.

    Case C-416/13, Vital Pérez (ECJ 13 November 2014), EU:C:2014:2371 para. 55. See also, in the field of indirect discrimination, Case C-409/16, Kalliri (ECJ 18 October 2017), EU:C:2017:767, para. 42.

  26. 26.

    Case C-409/16, Kalliri (ECJ 18 October 2017), EU:C:2017:767, paras. 36 and 38.

  27. 27.

    Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 40.

  28. 28.

    Case C-157/15, G4S Secure Solutions (ECJ 14 March 2017), EU:C:2017:203, para. 38.

  29. 29.

    ECJ, C-157/15, Opinion of Advocate General J. Kokott of 31 May 2016, EU:C:2016:382 paras. 65 ff. In this Opinion, the Advocate General undertook an analysis of the GDOR that would have been valid both in the framework of direct and indirect discrimination. She concluded that a headscarf ban imposed by a company policy represented a GDOR in the circumstances of the case.

  30. 30.

    Case C-356/12, Glatzel (ECJ 22 May 2014), EU:C:2014:350 and Case C-190/16, Fries (ECJ 5 July 2017), EU:C:2017:513.

  31. 31.

    See on this overlap ECJ, C-190/16, Opinion of Advocate General Bobek of 21 March 2017, EU:C:2017:225, paras. 29–32.

  32. 32.

    Directive 2006/126/EC on driving licences, OJ L 403/18 (2006) and corrigendum OJ L 19/67 (2009), as amended by Commission Directive 2009/113/EC amending Directive 2006/126/EC of the European Parliament and of the Council on driving licences OJ L 223/31–35 (2009).

  33. 33.

    Case C-356/12, Glatzel (ECJ 22 May 2014), EU:C:2014:350, paras. 39 and 40.

  34. 34.

    Point FCL.065(b) in Annex I to Commission Regulation (EU) No 1178/2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 (OJ L 311/1 (2011)).

  35. 35.

    ECJ, C-190/16, Opinion of Advocate General Bobek of 21 March 2017, EU:C:2017:225, para. 29.

  36. 36.

    Ibid.

  37. 37.

    Ibid.

  38. 38.

    It could be noted that most traditional and developed field of EU antidiscrimination law—prohibition of discrimination on grounds of nationality—does not resort to this notion. However, the idea is present in the explicit limitations allowed on access to public service. Here, the nationality requirement could be considered tantamount to a genuine occupational requirement for the loyalty needed for public service is considered a characteristic related to nationality. That assumption, which is of course not immune to criticism, essentially follows the same methodological logic of the GDOR.

  39. 39.

    See on these developments, Waddington and Bell (2001), p. 587 (598).

  40. 40.

    As noted by Pitt (2009), p. 1 (10).

  41. 41.

    See Case C-13/94, P and S (ECJ 30 April 1996), EU:C:1996:170, para. 21, where the Court declared that a difference in treatment based on gender reassignment is based ‘essentially if not exclusively, on the sex of the person concerned. For a more recent case, see Case C-451/16, MB (ECJ 26 June 2018), EU:C:2018:492, para. 38.

  42. 42.

    Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM(1999)566 final of 25 November 1999, where the Commission stated that ‘in the case of differences of treatment based on racial and ethnic origin, such cases will be highly exceptional. Examples of such differences might, for example, be found where a person of a particular racial or ethnic origin is required for reasons of authenticity in a dramatic performance or where the holder of a particular job provides persons of a particular ethnic group with personal services promoting their welfare and those services can most effectively be provided by a person of that ethnic group.’ From the point of view of comparative law it is indeed noteworthy that the ‘bona fide occupational qualification’ exception in US law is not applicable to discrimination on the basis of race. On this issue and the potential limitations arising from the First Amendment see Robinson (2007), pp. 1–73.

  43. 43.

    Case 248/83, Commission v Germany (ECJ 21 May 1985), EU:C:1985:214, paras. 37 and 38. See also Case 318/86, Commission v France (ECJ 30 June 1988), EU:C:1988:352, paras. 26 and 27.

  44. 44.

    Recital 23.

  45. 45.

    According to Advocate General Kokott ‘contrary to what the wording of Article 4(1) of the Directive may suggest at first glance (‘… Member States may provide …’), the occupational requirements justifying a difference of treatment need not necessarily be officially laid down by Member States in the form of laws or decrees. It is, on the contrary, sufficient that an undertaking applies a rule imposing such a requirement within its organisation.’ See ECJ, C-157/15, Opinion of Advocate General J. Kokott of 31 May 2016, EU:C:2016:382, para. 67.

  46. 46.

    Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 36.

  47. 47.

    For some interesting examples, see: Hillisch (2015), pp. 115–120 or Lewis (1991), pp. 67–71.

  48. 48.

    Case C-188/15, Bougnaoui and ADDH (ECJ 14 March 2017), EU:C:2017:204, para. 40. Emphasis added. See on this debate and the comparison between both cases, Howard (2017), p. 348 (364) and Hennette-Vauchez (2017), p. 744 (755–756).

  49. 49.

    Case C-414/16, Egenberger (ECJ 17 April 2018), EU:C:2018:257, para. 63. Emphasis added.

  50. 50.

    Case 165/82, Commission v United Kingdom (ECJ 8 November 1983), EU:C:1983:311, para. 20.

  51. 51.

    See, for US case-law, Post (2000), pp. 1–40.

  52. 52.

    See Pitt (2009), p. 7.

References

  • Cloots, Elke. 2018. Safe Harbour or Open Sea for Corporate Headscarf Bans? Achbita and Bougnaoui. Common Market Law Review 55: 589–624.

    Article  Google Scholar 

  • Ellis, Evelyn, and Philippa Watson. 2012. EU Anti-Discrimination Law. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Hennette-Vauchez, Stephanie. 2017. Equality and the Market: The Unhappy Fate of Religious Discrimination in Europe. European Constitutional Law Review 13: 744–758.

    Article  Google Scholar 

  • Hillisch, Sarah. 2015. Preferential Treatment of Female Gynaecologists Justified by Legitimate Demand. Austrian Constitutional Court, Judgment of 9 December 2014, V 54/2014. Vienna Journal on International Constitutional Law 9: 115–120.

    Google Scholar 

  • Howard, Erica. 2017. Islamic Headscarves and the CJEU. Maastricht Journal of European and Comparative Law 24: 348–366.

    Article  Google Scholar 

  • Lewis, Jeremy. 1991. Genuine Occupational Qualifications and Reverse Discrimination. Tottenham Green Under Fives’ Centre v. Marshal [1989] IRLR 147 (EAT); London Borough of Lambeth v. CRE [1990] IRLR 231 (CA). Industrial Law Journal 20: 67–71.

    Article  Google Scholar 

  • Pitt, Gwyneth. 2009. Genuine Occupational Requirements. Academy of European Law Trier. <www.era-comm.eu/oldoku/Adiskri/05_Occupational_requirements/2009_Pitt_EN.pdf>.

  • Post, Robert. 2008. Prejudicial Appearances: The Logic of American Antidiscrimination Law. California Law Review 88: 1–40.

    Google Scholar 

  • Robinson, Russell. 2007. Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms. California Law Review Robinson 95: 1–73.

    Google Scholar 

  • Sirota, Michael L. 1977. Sex Discrimination: Title VII and the Bona Fide Occupational Qualification. Texas Law Review 55: 1025–1072.

    Google Scholar 

  • Waddington, Lisa, and Mark Bell. 2001. More Equal Than Others: Distinguishing European Union Equality Directives. Common Market Law Review 38: 587–611.

    Article  Google Scholar 

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  1. European Court of Justice, Luxembourg, Luxembourg

    Sara Iglesias Sánchez

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  1. Europa-Institut, Faculty of Law, Saarland University, Saarbrücken, Germany

    Thomas Giegerich

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Sánchez, S.I. (2020). The Concept of “Genuine and Determining Occupational Requirements” in EU Equality Law: A Critical Approach. In: Giegerich, T. (eds) The European Union as Protector and Promoter of Equality. European Union and its Neighbours in a Globalized World, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-030-43764-0_11

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