In 1982 they reported that ‘by far the most important legal development during the year — and arguably in the lifetime of the Commission — was the judgment of the European Court of Justice in the infringement proceedings brought by the European Commission against the UK Government’. The European Commission charged that the United Kingdom was ‘in breach of its obligations under the Treaty of Rome’ for ‘failing to provide in its national legislation for individuals to pursue claims of equal pay where they were engaged in work of equal value compared with other workers’:
The European Commission has maintained that these deficiencies in the Equal Pay Act constitute and infringement of the United Kingdom’s Treaty obligations to give full effect to the provisions of Article 119 of the Treaty of Rome and, in particular, to the provisions of the Equal Pay Directive.29
The ruling led to the Equal Pay (Amendment) Regulations (1983, came into force in 1984), tightening up the law.30 Looking back in 1985, the Commission underlined that it was ‘conscious from the very outset of the European dimension of its work’. They knew that joint work between the European Commission and the EOC built confidence and influence:
The existence today of an Advisory Committee on Equal Opportunities at the Commission of the European Community in Brussels is due in no small measure to the European Conference, ‘Equality for Women’, which we organised on behalf of the European Commission in Manchester in 1980.31
In 1985 the Commission ‘strongly supported the European Commission’s proposal for a Directive to ensure that all Member States make a minimum provision for’ parental leave from work, ‘to take time off work following the end of maternity leave to care for a young child under two’. Though it was ‘increasingly available within EEC countries’.32
It is worth bearing in mind that at the time the European Commission was clashing sharply with the British government. Prime Minister Thatcher had pilloried the European Community over the British contribution (which she pointedly called ‘our money’). Shortly afterwards Commission President Jacques Delors went to the British Trade Union Congress, to tell trade unionists that if they were not loved by their government, they could rely on the protection of the European Community. For the Commission the European Community was a corridor around the truculent British government, to a higher power that could impose laws on Westminster.
In the 1990s that conflict reoccurred, after Thatcher had left office, and a rather weaker Prime Minister, John Major, struggled with a ‘Eurosceptic’ minority in his Cabinet (which he was once overheard calling ‘the Bastards’). The European Community was also changing. In 1993 the Maastricht Treaty created the European Union. Major had to manufacture a row with Europe, over the ‘Social Chapter’ of the Treaty, guaranteeing some employment rights, which Britain opted out of to keep up the appearance of British defiance. Among the provisions of the Social Chapter in Article 2 were a commitment to ‘equality between men and women with regard to labour market opportunities and treatment at work’. It was in that context that the Equal Opportunities Commission in the early Nineties, under its new chair Kamlesh Bahl, increased the appeal to European Union legislation to put pressure on the UK government. In 1993 Bahl celebrated ‘the successful decision by the European Court of Justice, in the Marshall case’, that ‘confirmed the EOC’s long-held view that the UK’s upper limit to compensation for victims of sex discrimination was inadequate’. The Commission attached ‘great importance to its membership of the European Commission’s Advisory Committee on Equal Opportunities for Women and Men on which all Member States are represented’. They saw the EOC’s work as part and parcel of the European Community’s project:
The EC’s Third Action Programme on Equal Opportunities for Women and Men has three main objectives: developing and clarifying the legal base; the integration of women into the labour market and improving the status of women in society.33
Equal Opportunities Commission chair, Kamlesh Bahl
The European Commission in Brussels was also interested in flattering the Equal Opportunities Commission in London, as part of its attempts to gain support in the clash with the British government. So it was that ‘the EOC’s comments on the European Social Policy so impressed the European Commission it included many of them in its White Paper’ in 1994. In truth the Equal Opportunity Commission’s contribution to the European Commission’s Social Policy were so much boiler-plate rhetoric:
• The need for a continuing, strong legal framework at European level.
• The need to move to the next phase focusing on equal treatment as well as equal opportunities.
• The urgent need to evaluate the economics of equal opportunity, especially the costs and disadvantages of inequality.
• All policies and proposals should be evaluated for their impact on women and men.
• The importance of women in all decision making spheres.
• The need for greater partnership and networking.
Still it helped both the European Commission and the Equal Opportunities Commission to have a British contribution to the Social Chapter, even if the British government was boycotting it.
Kamlesh Bahl wrote to Secretary of State for Employment, Michael Portillo:
I was delighted when you amended the employment protection laws to remove the discriminatory treatment of part-time workers. This followed the House of Lords decision in the Judicial Review the EOC brought on the matter and will help to stop part-timers being treated as second class citizens.
That was her way of telling him that the Equal Opportunities Commission had powerful allies in Europe.34 The Commission wrote up the change in the Annual Report as an historic victory for the rights of part-time workers in Britain, 86% of whom were women:
Ruling on an EOC judicial review the House of Lords said that the existing qualifying thresholds applying to part-timers, for access to unfair dismissal and redundancy pay were incompatible with European Community Law.35
In 1997 Britain had a new government that signed up to the Social Chapter. That year the treaty of Amsterdam gave powers to the European Council to:
adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
Under the following Labour and Conservative governments, European Directives on social policy and on equal opportunities in particular were followed.
To understand the trajectory of the European dimension of equal opportunities policies it is useful to look at what the European Commission’s motives for challenging the British government were. The Commission, and all the institutions of the European Union (or EEC as was) were in a complicated position. Over time they were building up capacity for a Pan-European law, and social policy. But that project naturally clashed with the defence of national sovereignty in the member states. The European Union could not directly challenge member states’ sovereignty since it was in the end a creation of those states. Still it had to innovate in ways that would lay the basis for a European administration. The Commission was unable to intervene directly in labour or welfare policies between 1973 and 1993 because these were very much at the core of national political debate. As an alternative the European Union agencies were drawn to new political movements and issues that were not well represented in national parliaments. So it was that the European Community was, for example, an early innovator in environmental regulation — an issue that was less controversial to member states.36
The question of equal pay and sex discrimination at work was one where the Commission was ahead of its member states. The directives on equal pay were influenced by the British laws of the 1970s, but later the governments of the 1980s were in defiance of these rulings. Ann Wickham explained in a far-sighted article, published in 1980, that the European Community ‘has a need for subjects through which it can constitute its legitimacy, and therefore establish itsel
f more firmly as an independent supranational body’. Class politics, Wickham explained, are ‘unlikely to be successful because these… have already been constituted at a national level, particularly where there are social democratic parties appealing to the interest of the “working class”’. Women as political subjects, though, are attractive to European Community institutions: ‘Women are available as political subjects precisely because they have not been widely constituted as political subjects at national level.’37
Equal opportunities for women at work were as important to the European Union, in seeking to enlarge its competence against national governments, as Europe was important to the Equal Opportunities Commission in finding another avenue of support that side-stepped Downing Street’s intransigence.
A recent appraisal of the fortunes of women at work in the European Union was prepared by Professor Maria Corsi, of Universita ‘La Sapienza’ in Rome, for the ‘FEMM Committee’ of the European Parliament. Corsi is downbeat, saying that ‘a sort of marginalisation toward the working woman still reigns’, and that ‘concentration of women in low value-added and thus low remuneration’ industries is the norm. Her assessment of the relative positions of men and women, though, is more nuanced. She says that ‘the current crisis presents aspects that no crisis has shown before’. By that she means that ‘gender gaps are closing not because women have improved their situation, but because men saw theirs getting comparatively worse’.38
— TEN —
Mainstreaming Equal Opportunities
Equal opportunities policies have come of age. No longer a nagging reform, they are at the heart of workplace relations in the twenty-first century. The project though holds itself to be unfinished. Dracula never dies, no matter how many times you kill him. So it is with discrimination. The policy needs a problem to address. Before we look at the problems that the equal opportunities policies throw up, we ought first to understand just how mainstream they are.
‘Mainstreaming’
Mainstream is not just an adjective in the language of equal opportunities policies, it is a verb. Under the heading ‘mainstreaming’, the Equal Opportunities Commission pledged that it ‘is working to build equality considerations into all levels of government and all services’. As they said, ‘our objective is for the equality implications of all policy to be considered from the start of the policy-making process’.1
One example of how ‘mainstreaming’ works is the Athena SWAN charter. The charter works as a commitment on the part of universities and colleges ‘to advancing women’s careers in science, technology, engineering, mathematics and medicine (STEMM) employment in higher education’. Athena SWAN works as a kitemark or badge awarded at different levels to universities and colleges by the Equality Challenge Unit: Bronze, Silver, and Gold. Sponsored by the Royal Society, the Department for Education, and the universities, the Equality Challenge Unit encourages universities to change ‘cultures and attitudes across the organisation’, on the grounds that ‘to address gender inequalities requires commitment and action from everyone, at all levels of the organisation’.
These are laudable aims, but just as arresting are the means. The Equality Challenge Unit is a voluntary system of self-regulation on the part of the universities. It relies on the benchmark set by the charter, and on the competitive drive of institutions to match the standards achieved by rival universities. In practice it means that the charter is always the first point on the agenda of every meeting and decision — a formula that college administrations have adopted to earn their status as holders of the Athena SWAN Award, and to improve their rating, from Bronze to Silver, and on to Gold.
Universities have created the Athena SWAN charter, because it is a system of self-regulation that works — works both in the sense that it leads to consistent incremental advance towards a better representation of women in STEMM posts; but also in the sense that it works to give the organisations an overarching sense of purpose and reform. Lecturer Sara Ahmed, who worked on Goldsmiths College’s equality charter, worried that ‘the orientation towards writing good documents can block action, insofar as the document then gets taken up as evidence that we have “done it”’. Ahmed told the story of how her committee’s work on the charter was lauded by a new Vice Chancellor, who showed off the Equality Challenge Unit’s award to the College, ‘informing the university that it had been given the “top rank” for its race equality policy’, and thus ‘“We are good at race equality”’. ‘But those of us who wrote the document did not feel so good’, Ahmed explained: ‘A document that documents the inequality of the university became usable as a measure of good performance.’2
Television broadcasters have often been criticised for the way they side-line or caricature black people. Tony Freeth, Stuart Hall, and the Black Workers’ Association produced the show It Ain’t Half Racist, Mum for BBC2 in 1979 which highlighted the problem. In the 1982 book of the same name Tony Freeth wrote that ‘if there is to be significant change in the TV image of our black communities, there must be change in the production process’, adding that ‘there must be more black film-makers’.3 Channel 4 and BBC both enhanced their minority-ethnic programme making, and a Commission for Racial Equality study of minority representation on TV found that while Asians were under-represented in proportion to their share of the UK population, ‘black participants were more likely to be seen on TV than in the real world’.4 In 2001 the BBC Director General said that the organisation was ‘hideously white’ and its management 98% white. The industry’s Creative Diversity Network was founded by the major terrestrial and digital broadcasters to redress the imbalance. Amongst its many programmes are year-long placements for minorities amongst all the major commissioners. Channel 4 has committed itself to a 20% black and minority-ethnic workforce, and has also brought in Diversity Commissioning Guidelines — contract compliance for its independent television companies to employ minority production staff and talent. In June 2016 the BBC was criticised by MPs for advertising scriptwriting posts (for its drama Holby City) for black and minority-ethnic applicants only. The Corporation defended itself saying that the posts were training posts, and so covered by race equality law.5
‘Mainstreaming’ equal opportunities has been taken up by the institutions of the European Union, too. In 1998 the Council of Europe agreed that ‘Gender mainstreaming is the (re) organisation, improvement, development and evaluation of policy processes so that a gender equality perspective is incorporated in all policies at all levels’. The Council set up the European Institute for Gender Equality, which as Director Virginia Landbakk explains ‘has started working with selected tools which were considered good practice in the field of gender mainstreaming and at promoting gender equality’. What this adds up to is a commitment to ‘gender training’ — ‘building gender capacity, competence and accountability’, because:
Gender mainstreaming requires decision-makers and public servants to support the goal of increasing gender equality, be aware of the mechanisms reproducing inequalities in general, and possess the skills and power to modify the public intervention for which they are responsible.6
Behind all of the prolixity, the point of this programme is mostly a training programme, whose unspoken purpose is to socialise European policy-makers into a certain way of thinking. The EIGE listed a number of different bodies who had already undergone the training, including the Andalusia Regional Government, the Swedish Association of Local Authorities and Regions, the European Commission DG for Research and Innovation, the Provincial Government of Styria in Austria, and Women in Councils in Northern Ireland.
Widening the equal opportunities model
One sign of the way that equal opportunities have become ‘mainstream’ is the way that other claims have been folded into the model of equal opportunities that were developed in the first instance to address discrimination against black and Asian people, and against women at work. Davina Cooper, a Haringey councillor in the 1980s, explains that equal opportu
nities ‘provided a means of entry into the political agenda for lesbian and gay issues in the mid-1980s’, and that it ‘created an equivalence between identities — Black, female, disabled and homosexual’ — which, she argues ‘was frequently inappropriate’.7
Lesbian and gay rights
The question of the rights of gay men was raised in the 1950s and ’60s as a question of civil liberties, by the Homosexual Law Reform Society and the Campaign for Homosexual Equality, leading to Lord Woolfenden’s 1957 report favouring reform, and the 1967 Act that partially decriminalised homosexuality (‘between consenting adults in private’ and with a higher age of consent, 21 years). The Gay Liberation Front formed in 1970 was very much an outcome of the ‘Sixties’ generation of radicals that had also founded the Women’s Liberation Front. The GLF’s goal was to change society, and liberate not just gay men but all people from narrowly heterosexist norms, and to fight the still markedly repressive policing of gay men.
The Gay Liberation Front took up the cause of homosexuals persecuted at work as but one dimension of the general campaign for freedom. Gay rights (which were by this time coming to be coupled in the formula ‘lesbian and gay rights’) were only taken up as a specifically ‘equal opportunities’ campaign once the idea of equal opportunities for women and for black people had been set out. Principally, it was among the municipal left that inclusion of lesbian and gay rights at work came to be included in the equal opportunities policy. In the Spring of 1983 the Greater London Council announced its new Grievance Procedure in respect of discrimination: ‘You can now take action against discrimination on grounds of sex, race, colour, nationality, ethnic or national origins, sexual orientation, age, trade union activity, political or religious belief.’8 The inclusion of sexual orientation reflected the discussions that were taking place in the Women’s Committee at County Hall, and the growing lobby for lesbian and gay rights among the municipal activists. In 1985 Phil Greasley published the book Gay Men at Work, ‘A Report on discrimination against gay men in employment in London’, with a foreword by the ‘out’ Labour MP for Islington South, Chris Smith.
The Equal Opportunities Revolution Page 24