The Hauge, Kluwer Law International, 2002, 389 s. (Studies in employment and social policy 15) ISBN 90-411-1842-X
At the intersection of the private sphere of the household and the public sphere of the labour market and paid work lie four essential human realities: pregnancy, childbirth, breastfeeding and childrearing. Do these factors make women unattractive as workers and cause them to be discriminated against in the labour marketplace? This study sets out to answer this question through an in-depth analysis of theory and actuality in the European Union, providing detailed analysis of EC legal measures and ECJ case law. The author's conclusions are bolstered by a revealing comparison with similar legislation and jurisprudence in the United States. The focus of the study is on the relatively narrow area of sex discrimination - discrimination because of the biological factors of pregnancy, childbirth and breastfeeding. The author demonstrates that an understanding of this specific and measurable kind of discrimination is the first step toward discrediting the wider category of gender discrimination, which penalizes women as full-time caregivers who cannot be relied upon as workers in the marketplace.
I. Introduction. A. Background Thoughts. B. Scope and Objective of this Study. II. Theoretical Framework. A. Sex Equality and Discrimination: The Case of the Labour Market. 1. Legal Theories of Sex Equality/ Difference and Discrimination. 2. Discrimination of Women in the Labour Market. B. Pregnancy Discrimination as Key Aspect of Discrimination Against Women in the Labour Market. 1. Pregnancy, Childbirth and Breastfeeding as Biological Obstacles to a Career. 2. Pregnancy Discrimination as Economically Rational Discrimination: The Economics of Sex Discrimination in the Market Place. 3. Theoretical Scheme. C. The European Community and the United States. 1. The E.C. and the U.S. as Laboratories for Legal Research on Pregnancy Discrimination. 2. The Impact of Societal Values. III. Protection of Pregnant Employees and Employees Who Have Just Given Birth or Are Breastfeeding in the European Community (E.C.). A. A Snapshot of Working Women in the E.C. 1. A European Woman's Work in Family and Wage Economies. 2. Growing Female Labour Force Since World War II. 3. Flexibility and the Understanding of What is Vital to Survival as Key Factors in the Evolution. B. An Analysis of the E.C. Measures Concerning Pregnant and Breastfeeding Employees. 1. The Powers of the European Community in the Social Field. 2. Overview of E.C. Legal Measures Regarding Pregnancy, Childbirth and Breastfeeding. C. An Analysis of the Relevant Case Law of the European Court of Justice. 1. Introduction: The Role of the European Court of Justice (ECJ). 2. The Court of Justice's Interpretation of E.C. Measures Regarding Pregnancy, Childbirth and Breastfeeding. D. Preliminary Conclusion. 1. The Court's and the E.C. Legislator's Proactive Approach Regarding Equal Pay for Work of Equal Value: An Anomaly? 2. The Court's and the E.C. Legislator's Reserved Approach with Respect to Pregnancy, Childbirth and Breastfeeding. 3. Encouraging the Court of Justice. IV. Pregnancy Protection in the United States (U.S.). A. The Working Woman in the U.S. 1. Women's Work in the Young American Nation. 2. Women's Current Participation in the American Labour Market. 3. The Link Between Sex Inequality in the Job Market and the Separate Spheres Ideology. B. An Analysis of American Measures Concerning Pregnant and Breastfeeding Employees. 1. A State or a Federal Competence? 2. An Overview of American Pregnancy, Childbirth and Breastfeeding Measures. C. The Interpretation of American Pregnancy/ Breastfeeding Measures by the U.S. Supreme Court. 1. Introduction: The Role of the U.S. Supreme Court. 2. The Interpretation of Pregnancy, Childbirth and Breastfeeding Measures by the U.S. Supreme Court. D. Preliminary Conclusion. V. Comparative Analysis and Suggestions. A. European and American Perspectives on Equality. 1. Different Societies, Different Notions of Equality. 2. Prohibition of Discrimination Against Pregnant Employees and Employees Who Have Just Given Birth or Are Breastfeeding. 3. Preliminary Conclusion. B. Suggestions for the E.C., and for the U.S. 1. The Right Balance Between Formal and Substantive Equality. 2. Flexibility and Understanding of What is Vital to Survival: A Lesson From the Past? Bibliography. Abbreviations. Index