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2005 >> Sex Equality and "Positive Discrimination" : Comparative Legal Analysis >> SUMMARIES >> Professor Gwénaële CALVÈS
" Sex Equality and "Positive Discrimination" : Comparative Legal Analysis "
(Co-organized by the Gender Law and Policy Center and the Society of Comparative Legislation)
SUMMARIES
The constitutionality of the compensatory advantages accorded to women on a preventive basis: a comparison between France and the United States
Professor Gwénaële CALVÈS
(University of Cergy-Pontoise)
In France, in the United States neither, the legislator has not to be preoccupied by the various effects the law he adopts will produce on the respective situation of men and women. And when a measure which applies the same way both to men and women produces de facto, or makes heavier a situation of inequality between sexes, it will not automatically for this reason be sanctioned by the constitutional court. In other words, indirect discrimination is not prohibited by French Constitution, nor by the United States Constitution.
But if the legislator is not obliged to proceed to some gender mainstreaming, he can nevertheless freely choose to anticipate the negative effects an apparently neutral measure will produce on women. When a negative impact appears to be inevitable, but the legislator nevertheless wants to adopt the concerned measure, he can plan to entitle women with a special advantage designated to compensate the disequilibrium produced by such measure. Positive discrimination is here decided on a preventive ground, in order to counteract the indirect discrimination linked to the adopted law. Understood as prolonging the mainstreaming approach, the notion of affirmative action is perhaps less "strange and absurd" (Olivier JOUANJAN, "L’égalité des femmes et des hommes en droit français", Gender Law and Policy Annual Review, vol. 1, 2003) than it could first appears. For the judge who has to pronounce on the constitutionality of such measures, affirmative action nevertheless remains problematic.
We propose here to examine those problems raised before the constitutional judge, by examining the law adopted on August 21, 2003, concerning leaves reform. It appears that this law tries to neutralize the negative impact it could have on women in the private sector. Analyzing the jurisprudence of the Supreme Court in similar affairs, we will discuss the decision of the French Constitutional Court which admits the conformity to the Constitution of such a correcting mechanism.
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