maart/april 2001 de moederschapsideologie van het ... - Nemesis

I THE
atypical work because of the way family life is presently
organised. Women are generally primarily responsible
for childcare, other care work and unpaid household
work: this organisation of family life means that
women are employed in atypical forms of work. HUI
and Stapleton therefore was a case concerned with
whether or not it was lawful to pay less to those women
who, because of the organisation of family life, jobshared.
The unavoidable context to this case is the present
gendered division of paid and household labour.
This context must not be ignored. Indeed, the European
Court acknowledges this context, hence its comments:
my argument is simply that although the Court
states that there needs to be a reconciliation of paid
work and family life, it approaches this as a concern for
women only, consequently impacting little on the gendered
division of labour in the home.
And, finally, on this subject of the family and its relationship
with equality law, I would also challenge
Monster's comment that the concept of 'family' is a
'separate subject' from the issues under discussion.
The concept of family which imbues the jurisprudence
of the Court is a central facet to my argument that a
dominant ideology of motherhood underpins the
Court's jurisprudence. The dominant ideology of
motherhood is premised on a traditional understanding
of women and men's roles within families and norms
of family life. Therefore, when I argue that the Court
assumes a particular role for women in families, that of
primary childcarer and secondary breadwinner, this
has a match in the assumed role for men - primary
breadwinner and distant father. This is the traditional
model and one which is implicit in the assumptions
about women's roles. This is not therefore a separate
subject but one which is centrally bound up in the
Court's approach to these issues. 3
Reproducing the dominant ideology of
motherhood: Abdoulaye*
An analysis of the jurisprudence of the European
Court, especially in the sex equality field, is an evolving
challenge; it is not a field of law which is set in
stone and in respect of which change is slow. Indeed,
the Court's approach to many complex issues in equality
law appears to be ever changing and evolving in
line with contemporary developments. Thus, as I argued
in my original article, where there was once an
emphasis on the need for full-time childcare from
mothers, the dominant ideology of motherhood has
evolved into an ideology which retains the primacy of
mothercare, but recognises the necessity of (some)
paid employment. Thus, jurisprudence and ideologies
are not concrete, but evolve. Monster appears to suggest
that recent case law developments suggest that the
Court has indeed moved on from its earlier path. However,
I would argue that this is not so obvious, as Abdoulaye
case exemplifies.
3.1 develop this argument further in in 'A Family Law for the European
Union?', in Jo Shaw (ed), Social Law and Policy in an Evolving
European Union, Hart, Oxford: 2000, where I suggest that the
Court has developed the concept of a 'model European family'.
4. Case C-218/98, Abdoulaye and others v Renault [1999] ECR
1-5723.
IDEOLOGY OF MOTHERHOOD REVISITED CLARE MCGLÏNN
Abdoulaye concerned the payment of a lump sum exclusively
to women employees 'when taking maternity
leave', in addition to the payment of their full salary
while on maternity leave. A similar lump sum payment
was made to either adoptive mothers or fathers. A
number of men challenged the payment on the grounds
that it was discriminatory against men and therefore a
breach of the principle of equal pay enshrined in article
141 EC and the Equal Pay Directive. The male workers
argued that although pregnancy leave may be granted
exclusively to women, and is justified on the basis
of biological characteristics, different considerations
apply regarding a payment such as this. They argued
that 'although the birth of a child concerns women
alone from a strictly physiological point of view', it is
also a 'social event which concerns the whole family,
including the father' and to 'deny the father the same
allowance amounts to unlawful discrimination'. 5
The Court rejected the claim holding that male and female
workers were not in comparable situations and
that there could not, therefore, be any discrimination. 6
However, in my view, it is possible to compare these
situations and the relevant comparison is between
women and men becoming parents. 7 The payment to
women 'when taking maternity leave' should have
been compared with either the treatment of men taking
parental/paternity leave, or with men becoming parents.
This is because the payment was not made in respect
of lost salary, that is maternity pay, to which
women are legitimately entitled: it was made in addition
to women's full salary. Nor was it treatment based
on pregnancy, such as a dismissal because a woman is
pregnant: the only connection was that the money was
paid to a woman while on maternity leave. In the end,
therefore, the payment in Abdoulaye related to a situation
which affects both women and men: it was a payment,
in the form of a bonus or gift, to women employees
on becoming a parent. The male workers had a
legitimate right to claim an entitlement to a similar
sum. The fact that the Renault company made a payment
to either mothers or fathers on the adoption of a
child simply adds substance to this argument.
I have argued elsewhere that the ideological foundation
of Abdoulaye is, therefore, very close to the heavily
criticised Hofmann case. 8 It was in Hofmann that
the Court held that an optional period of maternity
leave, which was supplementary to the period of compulsory
leave, was lawfully granted only to women.
Mr Hofmann's claim that this constituted discrimination
against men, who are equally entitled to time to
care for their children, was rejected. Thus, in Hofmann
women's existing entitlements to maternity leave were
defended against any a demand to share such rights
with fathers. Parental rights can be legitimately granted
to women only, ergo the lump sum payment to
women only in Abdoulaye was equally lawful. Thus,
the dominant ideology of motherhood, which I argue
5. Ibidpaia. 7.
6. Ibid para. 20.
7. This would have followed the Court's approach in Case 312/86
Commission v France [1986] E.C.R. 6315.
8. 'Pregnancy, Parenthood and the Court of Justice in Abdoulaye',
European Law Review 2000 nr. 25, p. 654.
56 NEMESIS 2001 nr. 2