Equal opportunities
Equal Opportunities
It is important in dealing with the term equal opportunities to distinguish between various meanings of equality of opportunities.
Formal equality of opportunities aims at enabling the same starting conditions for all persons. It involves eliminating legal obstacles to access and ensuring fair (procedural) rules for all. Formal equality of opportunities is realized when, for example, the same access conditions exist for all for access to educational institutions or for appointments to jobs. In the area of universities this means, for example, that equality of opportunities is achieved in a formal sense when the same conditions, such as matriculation requirements, apply for all applicants, male and female, for a study place. Formal equality of opportunities does not mean that the same starting conditions must necessarily be reflected in actual success for all. If it is observed, however, in the long term that one group of persons enjoys disproportionately little success despite all the provisions supporting equality of opportunities, then the selection procedures must be reviewed and improved. Selection procedures must be designed in such a way that they do not disadvantage persons in specific life situations, such as persons with an immigrant background.
Formal equality of opportunities does not, however, address the reasons why certain persons do not even get as far as selection procedures. Early discrimination can, for example, result in children from social levels which place no value on education not getting to a grammar school (Gymnasium) at all and thus not fulfilling the conditions for a place at university.
Substantial equality of opportunities, on the other hand, demands equal distribution of chances for success for all social groups. Substantial equality of opportunity is achieved when, for example, different men and women, e.g. from different ethnic groups or of different ages, enjoy a comparable rate of success. In this substantial reading, equality of opportunities cannot be limited to removing access barriers and creating the same starting conditions for all. It must also open up new opportunities over and above this for disadvantaged people and groups to achieve real equality. Therefore, supporting measures such as quota regulations for specific groups are used here to counter actively the disadvantages suffered by certain groups.
The decisions of the European Court of Justice (ECJ) regarding German quota regulations such as those of the Land of North Rhine-Westphalia show that the court assumes the application of substantial equality of opportunities. According to the Marschall Ruling, a purely formal understanding of equal opportunities is insufficient. The fact that two people may have the same qualifications, thus fulfilling the same conditions for the promotion in question, does not, according to the court, mean that they both have the same chances of promotion. The court decided that quota regulations for women are admissible if, in the course of a review of the individual case, the criteria in favor of the male candidate with the same qualifications are also taken into account. These criteria may not, however, be discriminatory in relation to the female candidates, e.g. length of service or obligations to support dependants. This is intended to prevent indirect discrimination and achieve substantial equality of opportunities.
Preferential treatment of the under-represented gender as provided for in the Federal Equal Treatment Act [German] or the Works Constitution Act [German] or Employee Representation Act [German] is in conformity with EU law, taking into account the conditions established by the ECJ.
The European Commission uses the term equal opportunities as an umbrella term for anti-discrimination and equal treatment or gender equality. The Commission understands this term in the substantial sense, as the ECJ does.
Gender equality is the central term in the political debate in Germany, however. The Federal Constitutional Court has made it clear in its rulings on Article 3 paragraph 2 of the Basic Law that gender equality between women and men should not be understood as a formal requirement for gender equality, but as covering social reality (Federal Constitutional Court Ruling 92, 80). It therefore involves the implementation of actual gender equality. To achieve this goal, preferential regulations are admissible, as they are in a similar way in substantial equality of opportunities, to compensate for de facto disadvantages. In this sense, the German understanding of actual gender equality is in line with the use of the term substantial equality of opportunities.
In the German private sector, the term referred to is mostly equality of opportunities. It means by this in most cases formal equality of opportunities in the sense of guaranteeing equal opportunities for access. More far-reaching provisions such as quotas are rejected as being bad for the competitive edge. The discussions about the Equal Treatment Act for the private sector and about the implementation of the anti-discrimination directives into national law, the General Equal Treatment Act [German], show that the actors in industry in Germany are mostly intent on avoiding statutory regulations on gender equality. Legislation would above all result in more bureaucracy, according to bodies like the German Employers’ Association (BDA) [German]. While gender equality laws apply to administrative organizations at federal and state (Land) level, an Agreement between the Federal Government and the German Private Sector Industry Associations for the Promotion of Equal Opportunities for Women and Men in the Private Sector [German] has been agreed instead of a relevant law applying to the private sector.
Formal equality of opportunities aims at enabling the same starting conditions for all persons. It involves eliminating legal obstacles to access and ensuring fair (procedural) rules for all. Formal equality of opportunities is realized when, for example, the same access conditions exist for all for access to educational institutions or for appointments to jobs. In the area of universities this means, for example, that equality of opportunities is achieved in a formal sense when the same conditions, such as matriculation requirements, apply for all applicants, male and female, for a study place. Formal equality of opportunities does not mean that the same starting conditions must necessarily be reflected in actual success for all. If it is observed, however, in the long term that one group of persons enjoys disproportionately little success despite all the provisions supporting equality of opportunities, then the selection procedures must be reviewed and improved. Selection procedures must be designed in such a way that they do not disadvantage persons in specific life situations, such as persons with an immigrant background.
Formal equality of opportunities does not, however, address the reasons why certain persons do not even get as far as selection procedures. Early discrimination can, for example, result in children from social levels which place no value on education not getting to a grammar school (Gymnasium) at all and thus not fulfilling the conditions for a place at university.
Substantial equality of opportunities, on the other hand, demands equal distribution of chances for success for all social groups. Substantial equality of opportunity is achieved when, for example, different men and women, e.g. from different ethnic groups or of different ages, enjoy a comparable rate of success. In this substantial reading, equality of opportunities cannot be limited to removing access barriers and creating the same starting conditions for all. It must also open up new opportunities over and above this for disadvantaged people and groups to achieve real equality. Therefore, supporting measures such as quota regulations for specific groups are used here to counter actively the disadvantages suffered by certain groups.
The decisions of the European Court of Justice (ECJ) regarding German quota regulations such as those of the Land of North Rhine-Westphalia show that the court assumes the application of substantial equality of opportunities. According to the Marschall Ruling, a purely formal understanding of equal opportunities is insufficient. The fact that two people may have the same qualifications, thus fulfilling the same conditions for the promotion in question, does not, according to the court, mean that they both have the same chances of promotion. The court decided that quota regulations for women are admissible if, in the course of a review of the individual case, the criteria in favor of the male candidate with the same qualifications are also taken into account. These criteria may not, however, be discriminatory in relation to the female candidates, e.g. length of service or obligations to support dependants. This is intended to prevent indirect discrimination and achieve substantial equality of opportunities.
Preferential treatment of the under-represented gender as provided for in the Federal Equal Treatment Act [German] or the Works Constitution Act [German] or Employee Representation Act [German] is in conformity with EU law, taking into account the conditions established by the ECJ.
The European Commission uses the term equal opportunities as an umbrella term for anti-discrimination and equal treatment or gender equality. The Commission understands this term in the substantial sense, as the ECJ does.
Gender equality is the central term in the political debate in Germany, however. The Federal Constitutional Court has made it clear in its rulings on Article 3 paragraph 2 of the Basic Law that gender equality between women and men should not be understood as a formal requirement for gender equality, but as covering social reality (Federal Constitutional Court Ruling 92, 80). It therefore involves the implementation of actual gender equality. To achieve this goal, preferential regulations are admissible, as they are in a similar way in substantial equality of opportunities, to compensate for de facto disadvantages. In this sense, the German understanding of actual gender equality is in line with the use of the term substantial equality of opportunities.
In the German private sector, the term referred to is mostly equality of opportunities. It means by this in most cases formal equality of opportunities in the sense of guaranteeing equal opportunities for access. More far-reaching provisions such as quotas are rejected as being bad for the competitive edge. The discussions about the Equal Treatment Act for the private sector and about the implementation of the anti-discrimination directives into national law, the General Equal Treatment Act [German], show that the actors in industry in Germany are mostly intent on avoiding statutory regulations on gender equality. Legislation would above all result in more bureaucracy, according to bodies like the German Employers’ Association (BDA) [German]. While gender equality laws apply to administrative organizations at federal and state (Land) level, an Agreement between the Federal Government and the German Private Sector Industry Associations for the Promotion of Equal Opportunities for Women and Men in the Private Sector [German] has been agreed instead of a relevant law applying to the private sector.
Further reading:
Beck, Dorothee/Graef, Anne: ChancenGleich. Handbuch für eine gute betriebliche Praxis, Frankfurt a.M. 2003
Bilanz 2003 der Vereinbarung zwischen der Bundesregierung und den Spitzenverbänden der deutschen Wirtschaft zur Förderung der Chancengleichheit von Frauen und Männern in der Privatwirtschaft.
O`Neill, Onora: Wie wir wissen, wann Chancen gleich sind?, in: Rössler, Beate (Hg.): Quotierung und Gerechtigkeit, 1993, S. 144-157.
Sacksofsky, Ute: Das Grundrecht auf Gleichberechtigung, 2. Auflage, 1996.
Bilanz 2003 der Vereinbarung zwischen der Bundesregierung und den Spitzenverbänden der deutschen Wirtschaft zur Förderung der Chancengleichheit von Frauen und Männern in der Privatwirtschaft.
O`Neill, Onora: Wie wir wissen, wann Chancen gleich sind?, in: Rössler, Beate (Hg.): Quotierung und Gerechtigkeit, 1993, S. 144-157.
Sacksofsky, Ute: Das Grundrecht auf Gleichberechtigung, 2. Auflage, 1996.
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