Court strikes blow for career women

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The Independent Online
A court in Luxembourg struck a blow for women's right to jump the job-queue, shattering glass ceilings in offices across the continent. The all-male judges of the European Court ruled yesterday that positive discrimination was a Good Thing; that unequal treatment of job applicants was an acceptable means for achieving "equal opportunity".

"A victory for women," proclaimed Karin Junker, a German Social Democrat MEP. Padraig Flynn, the EU's social affairs and employment commissioner, purred with delight: "The Court has recognised that certain deep-rooted prejudices and stereotypes as to the role and capacities of women in working life still persist. It has concluded from this that priority given to equally-qualified women ... is not contrary to Community law."

It is all the fault of one man unable to come to terms with rejection. Three years ago, Hellmuth Marschall, then 39-year old teacher at a German comprehensive school, applied for promotion and lost out - to a woman. Mr Marschall took the regional authorities, the Land of North Rhine-Westphalia, to court. The local judiciary were unable to unravel the complexities of the case, and passed the buck upwards.

Everyone thought Mr Marschall could not lose. Two years ago, a civil servant from Bremen, Eckhard Kalanke, had won a similar case in Luxembourg against his employers. The judges then argued that the Mr Kalanke had been at the receiving end of "automatic job selection", which shut them out of promotions without a cursory glance at their CV.

The now notorious Kalanke verdict caused chaos through Europe. From Ireland to Greece, employers promoting positive discrimination found themselves breaking the law. The European Commission declared it a setback for women's rights and vowed to push for clearer legislation across the Community.

How clear it is now will no doubt be a matter of protracted - and lucrative - legal argument. Unlike the Bremen case, the judges ruled, Mr Marschall's employment were not operating an "automatic" selection system. The court decided the law was not unfair to men because, while it gave women candidates priority, it did not give them automatic, unconditional preference.

The affirmative action law only applied to the public sector, and only in cases where men outnumber women in senior jobs. The judges confirmed that EU law allowed governments to take action to redress inequality between men and women in the work-place, "provided that an objective assessment of each individual candidate, irrespective of their sex, is assured".

"This is an historic day for women in Europe," said Ilse Ridder-Melchers, equal opportunities minister of North Rhine-Westphalia. "The decision of the European Court of Justice finally draws a line under years of legal wrangling which has been to the detriment of women."

That should come as a relief to her legal department, currently fighting 109 sexual discrimination cases brought by men in local courts. There are eight other regions in Germany whose governments operate similar policies, and fighting similar court battles.

Mr Marschall is vowing to fight on, but so are his adversaries. The all-male court which made yesterday's landmark decision is one of the first targets. "Male rule in Luxembourg must be brought to an end," declared Ms Junker, the MEP.

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