Marschall v Land Nordrhein Westfalen (1997) C-409/95
Citation: Marschall v Land Nordrhein Westfalen (1997) C-409/95
Rule of thumb: If you are denied a job you objectively deserve so that an objectively less qualified & less able minority person can get it, is this a breach of the law? Yes, this is positive discrimination for the minority candidate which is also a breach of the law – this is why diversity cannot be achieved overnight and is a long term process.
Judgment:
Positive discrimination - if someone who fits a social prototype of not being discriminated against, and they are denied a job because an organisation wants to improve their ‘diversity’ rather than awarding opportunities based on the quality of work, then this ‘archetypal’ person is entitled to damages, ‘32 However, since Article 2(4) constitutes a derogation from an individual right laid down by the Directive, such a national measure specifically favouring female candidates cannot guarantee absolute and unconditional priority for women in the event of a promotion without going beyond the limits of the exception laid down in that provision (Kalanke, paragraphs 21 and 22). 33 Unlike the rules at issue in Kalanke, a national rule which, as in the case in point in the main proceedings, contains a saving clause does not exceed those limits if, in each individual case, it provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate. In this respect, however, it should be remembered that those criteria must not be such as to discriminate against female candidates. 34 It is for the national court to determine whether those conditions are fulfilled on the basis of an examination of the scope of the provision in question as it has been applied by the Land. 35 The answer to be given to the national court must therefore be that a national rule which, in a case where there are fewer women than men at the level of the relevant post in a sector of the public service, and both female and male candidates for the post are equally qualified in terms of their suitability, competence and professional performance, requires that priority be given to the promotion of female candidates unless reasons specific to an individual male candidate tilt the balance in his favour is not precluded by Article 2(1) and (4) of the Directive, provided that: in each individual case the rule provides for male candidates who are equally as qualified as the female candidates a guarantee that the candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate, and such criteria are not such as to discriminate against the female candidates..’
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.