Gender equality in the workplace

Updated: Nov 29, 2022

Author: Maria Demetriou

Date of Publication: 04/10/2022

Have you ever noticed -sexual- harassment, discrimination or unequal opportunities on the grounds of gender in the workplace? Or has that ever happened to you? Then, you have come to the right place in order to get informed about your protection and your rights.

The law of the European Union provides protection over the equality of men and women workers. Generally, the principle of equal treatment is enshrined in the Article 157 TFEU. The specific prohibition of gender discrimination is guaranteed in the Article 23 of the EU Charter.

Particularly, the EU implements the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation. The relevant EU legislative act is the Recast Directive 2006/54/EC.

equal treatment of men and women in matters of employment and occupation

The Recast Directive

Aim

It guarantees the equal treatment of men and women in all fields related to employment:

access to employment at all activities and all levels, including hiring criteria and promotion
access to all levels of vocational training, including practical work experience
employment and working conditions, including dismissals
participants in an organization of workers or employers, including its benefits
occupational social security schemes -access to them, calculation of contributions and benefits.

For a list of the exact applicable occupational social security schemes, click here (Article 7, page 6).

Scope

As soon as you are a worker/employee, the protection against gender discrimination covers you. It is irrelevant if you work in the private or public sectors. In addition, it doesn’t matter if you are self-employed, retired or disabled worker. You are, also, protected, even if you stopped working due to illness, maternity, accident or involuntary unemployment. What’s more, you are still in the ambit of protection, if you are seeking employment.

Exceptions

However, you should pay attention to a few cases outside the protected scope. Particularly, you are not protected in the case of:

individual contracts and single-member schemes for self-employed persons
insurance contracts, where the employer is not a party
optional individual provisions of occupational social security schemes
voluntary contributions by workers to the occupational social security schemes

Meaning of equal treatment and equal opportunities

Employers shall treat their male and female employees in the same manner. That includes the prohibition of:

Direct discrimination: if your employer treats you less favorably than another employee of the opposite sex in a comparable situation.
Indirect discrimination: if your employer applies a provision or practice, which puts you in a specific disadvantage compared to employees of the other sex.

However, your employer is eligible to apply this provision if:

It promotes a legal and objective purpose and
The way used to achieve the purpose is suitable and essential.

Harassment: if you experience unwanted behavior related to your sex. The purpose or the consequence should be the:

Violation of your dignity and
Creation of a hostile/intimidating/offensive environment towards you.

Sexual harassment: if you experience unwanted sexual behavior -verbal, nonverbal or physical. The purpose or the consequence should be the:

Violation of your dignity and
Creation of a hostile/intimidating/offensive environment towards you.

Any less favorable treatment related to:

Your rejection or submission to -sexual- harassment
They allowed pregnancy or maternity leave.

Instructions to discriminate against employees on grounds of sex.

It is, also, important to remember that equal treatment involves the right to equal pay. Your salary, either you are a man or a woman employee, shall be the same for the same work or for work of equal value. Moreover, employers shall classify you in a job position, following the same criteria for both men and women.

Examples of gender unequal treatment

The Recast Directive and the case law of the European Court of Justice have dealt with some forms of gender discrimination in the employment field. For example:

Setting down different conditions for the age of entry, nature and ability to participate in an occupational social security scheme
Laying down different rules/ standards for the level and reimbursement of contributions and benefits of such a scheme
Determining different retirement ages
Delaying the granting of maternity leave rights
Fixing a certain job position for one gender without objective justification
Dismissal of pregnant woman employee during maternity leave or refusal of her return or less favorable treatment after her return

Your protection

Did you find yourself being a victim of the above unequal treatment and gender discrimination in the workplace? If you are a citizen of a Member State of the EU, you have nothing to worry about. The EU obliges all Member States to implement the provisions of the Recast Directive in their domestic law.

In particular, you are entitled to have court protection and out-court protection, according to your domestic law. In both procedures, it is enough to establish the facts showing that your employer discriminated against you on the grounds of sex. Furthermore, you can allege discrimination, even when the relationship with that employer has ended.

On the other hand, your employer has to prove that they didn’t violate the principle of equal treatment. If they fail to do so, you have the right to compensation or reparation for your loss and damage. Note that if your damage was only the refusal to consider your job application, you can still get compensation but restricted to a prior limit.

Last but not least, your protection against gender discrimination becomes stronger with the help of equality bodies. These bodies will assist you in submitting your complaint about discrimination. On top of that, your employer is strongly encouraged to provide you, regularly, the necessary information on equal treatment for male and female employees in the workplace.