Sexual discrimination in employment : a Maltese and EC law perspective

Abstract

This thesis aims at giving a detailed analysis of the new concepts introduced by the new EC anti-discrimination law model under Directive 2002/73, which amends Directive 76/203, and moreover questions the suitability of this non-discrimination model in achieving equal treatment de facto between men and women in the sphere of employment. It also examines the recent Maltese enactments and analyses to what extent the new provisions under the Employment and Industrial Relations Act and under the Equality for Men and Women Act, manage to implement Directive 2002/73. The first chapter establishes the foundation upon which the principles of non discrimination and equal treatment between men and women are built, by describing the evolution of EC and Maltese law in developing these concepts. It introduces the new instruments used under Directive 2002/73 and under recent Maltese enactments, for combating sexual discrimination and promoting equal treatment. The second chapter deals with the more overt type of discrimination, direct discrimination. Here, the relevant Maltese provisions, under both Acts, prohibiting direct discrimination at the various stages of employment, are the main point of focus. The third chapter analyses the procedure presently adopted by the ECJ under the original 1976 Directive in determining whether indirect discrimination exists. It then hypothesises on the new approach the ECJ could take in interpreting the new definition of indirect discrimination under Directive 2002/73. This Chapter also provides a step by step procedure to be adopted by Maltese courts and tribunals in determining cases of indirect discrimination. The next chapter focuses on the various measures introduced by the 2002 Directive in protecting a woman from pregnancy and maternity discrimination. It compares the position under the Directive with the protection provided by the Maltese legislator under the Equality for Men and Women Act and under the Employment and Industrial Relations Act, the latter granting a more extensive protection than the former. Chapter five, examines the concept of sexual harassment and harassment on the basis of sex, under the 2002 Directive and under Maltese law. This chapter also suggests measures which need to be implemented by employers locally to help combat sexual harassment in the workplace. The final chapter analyses the use of positive action measures to combat discrimination in the labour market. It examines which types of positive action are considered legitimate by the European Court of Justice and moreover suggests some types of positive action measures which may be used in the local sphere to combat structural discrimination and achieve de facto equality between men and women.