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Resistance to Anti-Discrimination Law in Central and Eastern Europe–a Post-Communist Legacy?

Published online by Cambridge University Press:  06 March 2019

Abstract

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Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and antidiscrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that EAL has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and antidiscrimination guarantees.

The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socio-economic, but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable antidiscrimination right. Finally, the emphasis on the “natural” differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women's constitutional equality guarantees.

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References

1 See, e.g., Csilla Kollonay Lehoczky, The Significance of Existing EU Sex Equality Law for Women in the New Member States: The Case of Hungary, 12 Maastricht J. Eur. & Comp. L. 467 (2005); Malgorzata Zysk, Age Discrimination Law in a Country with a Communist History: The Example of Poland, 12 Eur. L.J. 371 (2006); Alexandra Gerber, The Letter Versus the Spirit: Barriers to Meaningful Implementation of Gender Equality Policy in Poland, 33 Women's stud. InTl F. 30 (2010); Kriszta Kovács, Equality: The Missing Link, in Constitution for a Disunited Nation. On Hungary's 2011 Fundamental Law 171 (Gábor Attila Tóth ed., 2012).Google Scholar

2 For example, the Anti-Discrimination Act (ADA), which should have been in place at the time of accession by the Czech Republic to the EU in 2004, was only adopted and entered into force in 2009. See Barbara Havelková, Challenges to the Effective Implementation of EC Gender Equality Law in the Czech Republic – An Early Analysis, in Wandel der Geschlechterverhältnisse durch Recht? 95 passim (Kathrin Arioli, et al. eds., 2008).Google Scholar

3 Each subsequent draft of the ADA that was proposed decreased the generosity of protection that it offered. For example, while the original 2004 draft, prepared by the Government Council of Human Rights, contained a mediation competence for the equality body and an independent right for NGOs to bring cases where an indeterminate number of individuals were victims of an act of discrimination, the final ADA contained no such provisions. Id. Google Scholar

4 Litigation has been scarce, and claimants’ chances of winning have been minuscule. Barbara Havelková, Gender in Law Under and After State Socialism: The Example of the Czech Republic, 151–60 (2013) (unpublished D.Phil. thesis, University of Oxford). Sometimes, this has been due to badly drafted norms and the courts’ unwillingness to correct them through teleological interpretation and indirect effect under EU law. In particular, the threshold for compensation of immaterial harm is too high and based on the wrong criteria, namely the diminution of standing in society. But even when the norms themselves are unproblematic, courts tend to misapply basic concepts. With regards to direct discrimination, for example, courts typically look for “motivation” or “motive” to establish that discrimination happened on the basis of sex, which, without fully shifting the burden of proof, makes cases extremely hard to win. Furthermore, the ordinary courts do not understand that the prohibition of indirect discrimination targets systemic prejudice and harms. I have discussed some examples of this previously. See generally Havelková supra note 2; see Barbara Havelková, The Legal Notion of Gender Equality in the Czech Republic, 33 Women's Stud. Int'l F. 21 (2010).Google Scholar

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8 The Article addresses sex and gender as it applies to women. A look at LGBTQ issues is beyond its scope.Google Scholar

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38 If I were to map the concepts of formal and substantive equality on the characterization of Western European trajectories that I offer below, phases (1) and (2) could be considered as having adopted a formal understanding, while phase (3) adopted a substantive one.Google Scholar

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44 One case of indirect discrimination on the basis of sex concerned the common taxation of spouses. The tax regime offered a beneficial tax rate to employed couples, but not to self-employed couples. The courts did not accept the plaintiffs’ claim that the tax code was indirectly discriminatory against women, as most part-time working carers were women. Rozsudek Nejvyššího správního soudu České republiky ze dne 21.05.2009 [Judgment of the Supreme Administrative Court of May 21, 2009] čj. 7 Afs 103/2008-71. In an case of indirect discrimination of Roma in education, the trial courts, as well as the Constitutional Court, emphasised the situation of the individual over the stark statistical disparities pointing to a structural problem, and found no discrimination. Nález Ústavní soud České republiky ze dne 12.08.2015 [Decision of the Czech Constitutional Court of Aug. 12, 2015] sp.zn III.ÚS 1136/13.Google Scholar

45 The provision was contained in the new Antidiscrimination Act which implemented EU law. Because the provision on positive action in EU law was permissive rather than obligatory, the Court was able to strike the implementing Slovak provision down. Nález Ústavného súdu Slovenskej republiky zo dňa 18.10.2005 [Decision of the Constitutional Court of the Slovak Republic] sp. zn. Pl. ÚS 8/04-202, 18 Oct. 2005, publ. in No. 539/2005 Coll.Google Scholar

46 I mostly draw on Bob Hepple's work. Writing about labor law in Western Europe, he describes three phases of equality: (1) Formal, in 1957–1975; (2) substantive, in 1976–1999; and (3) comprehensive or transformative, in 2000–2004. Bob Hepple, Equality at Work, in The Transformations of Labour Law in Europe 129–64 (Bob Hepple & Bruno Veneziani eds., 2009). Sandra Fredman similarly identifies a “new generation” of equality rights, starting in the 2000s, which includes the positive duty to promote equality. See Fredman, Sandra, Equality: A New Generation?, 30 Indus. L.J. 163 (2001).Google Scholar

47 Mary Wollstonecraft was a prominent proponent. Mary Wollstonecraft, A Vindication of the Rights of Woman (1792).Google Scholar

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69 For a discussion of their role in antidiscrimination law, see Khaitan, Tarunabh, A Theory of Discrimination Law 30–38 (2015).Google Scholar

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75 Constitutional Act No. 150/1948 Coll. (1948), art. 3, § 2 (Czechoslovakia) (emphasis added).Google Scholar

76 Id. § 1(2).Google Scholar

77 Constitutional Act No. 100/1960 Coll. (1960), art. 20, § 3 (Czechoslovakia).Google Scholar

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95 They have also been the subject of considerable attention, and some disagreement, from feminist legal scholars. For example, Alison Jaggar advocates for greater recognition of difference, and Martha Minow supports gender - neutrality. Alison M. Jaggar, Sexual Difference and Sexual Equality, in Theoretical Perspectives on Sexual Difference (Deborah Rhode ed., 1990); Martha Minow, Adjudicating Differences: Conflicts Among Feminist Lawyers in Conflicts in Feminism (Marianne Hirsch & Evelyn Fox Keller eds., 1990).Google Scholar

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109 This is the Aristotelean formulation of the equality principle. For a discussion and a feminist critique of this standard, see Catharine A. Mackinnon, Toward A Feminist Theory Of The State 225 (1989).Google Scholar

110 Constitutional Act No. 65/1965 Coll. (1965), § 161 (Czechoslovakia).Google Scholar

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112 Maternity leave of eighteen weeks, which was introduced in 1950, was lengthened several times in the 1960s, up to twenty-six weeks in 1968. Constitutional Act No. 65/1965 Coll. (1965), § 155 (Czechoslovakia). Also introduced in 1968 was “further maternity leave” of one year, which was lengthened to two years in 1969. See Constitutional Act No. 153/1969 Coll. (1969) (Czechoslovakia).Google Scholar

113 These were especially generous from the 1960s onwards. “Financial help in motherhood” (peněžitá pomoc v mateřství) was paid during maternity leave. See Constitutional Act No. 88/1968 Coll. (1968), § 2(b) (Czechoslovakia). Furthermore, a “motherhood supplement” was paid during “further maternity leave” (mateřský příspěvek). See Constitutional Act No. 154/1969 Coll. (1969) (Czechoslovakia).Google Scholar

114 E.g., Constitutional Act No. 70/1958 Coll. (1958), § 8(1); Government Ordinance No. 92/1958 Coll., § 20.Google Scholar

115 For a transnational comparison, see, e.g., Sharon L. Wolchik, Ideology and Equality, 13 Comparative Political Studies 445 (1981). The transformative zeal of the socialist state fizzled out considerably as time progressed. See Havelková, supra note 51, at 44–48. Many émigrés saw Western Europe as decidedly backward when they arrived after leaving Czechoslovakia after 1968. Alena Wagnerová observed that it was “as in the developing world; as if someone brought us back twenty years, to the times of our mothers and grandmothers.” Alena Wagnerová, Laudatio Linda Šmausová – žena – clovek – vědkyně – přítelkyně: curiculum velice osobní, in Tvrdošíjnost myšLenky. Od Feministické Kriminologiek Teorii Genderu 15 (Libora Oates-Indruchová ed., 2011). The reverse was true when they returned to Czechoslovakia after 1989: “As if we somersaulted again back to the GDR, when we went there in late 1960s. Our [Eastern comparative] advance, that we were so proud of, ceased to exist.” Id. at 18–19.Google Scholar

116 In the West, this distinction has, of course, been problematized and challenged, notably by Judith Butler. See generally Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (1990). There is a difference between troubling a distinction–which has been intellectually, and arguably even politically, well-established and internalized in the West–and not having arrived at the distinction at all, as in the East. It is hard to deconstruct something that has not been constructed in the first place. Arguably, in many Western European countries, especially on the continent, it took a while for this intellectual shift to be judicially acknowledged as well. Susanne Baer notes that in Germany, “the interpretation of Article 3 [of the Basic Law] only moved away from simple biologism in the 1980s … .” Susanne Baer, The Basic Law at 60 - Equality and Difference: A Proposal for the Guest List to the Birthday Party, 11 German L.J. 67, 82 (2010).Google Scholar

117 While I would advocate gender-neutralization of parenting in the form of parental leave and parental benefits for both men and women, there is a case to be made for special protection of women during pregnancy, and breastfeeding shortly after birth. EU legislation has approached the issue in such a fashion. See Council Directive 1992/85, 1992 O.J. (L 348) (EC); see also Council Directive 1996/34, 1996 O.J. (L 145) (EC).Google Scholar

118 The Labor Code introduced a prohibition of night work, see Code, Labor, No. 65/1965, § 152, as well as a prohibition of certain types of work for all women. See also Code, Labor, No. 65/1965 § 150(2).Google Scholar

119 Havelková, supra note 51, at 43.Google Scholar

120 Part-time work was almost non-existent during the period.Google Scholar

121 The generous provision of childcare, for instance, was clearly positive in helping mothers to work outside of home, and yet it did nothing to change the male-based employment model.Google Scholar

122 Labour Code Act No. 262/2006 Coll., § 238(1).Google Scholar

123 Act No. 365/2011 Coll. amending 262/2006.Google Scholar

124 In 1990, parental allowance was made available to caretaker fathers (Act No. 382/1990 Coll.), but the Labour Code only recognized parental leave in 2000 (Act No. 155/2000 Coll.). Thus, for a decade, a father could receive the benefit, but had no guarantee of workplace protection from dismissal during the period of care.Google Scholar

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128 The U.S. used the term “separate but equal” to justify discrimination of African Americans through segregation before the Brown v. Board of Education ruling. See Brown, 347 U.S. at 488.Google Scholar

129 Alfred G. Meyer, Feminism, Socialism, and Nationalism in Eastern Europe, in Women, State, and Party in Eastern Europe 4, 23 (Sharon L. Wolchik & Alfred G. Meyer eds., 1985).Google Scholar

130 In 1962, women on average earned sixty-four percent of men's wages, and in 1988, the proportion rose only to seventy-one percent. See Hana Hašková & Marta Vohlídalová, The Labour Market and Work-Life Balance in the Czech Republic in Historical Perspective, in Women and social citizenship in Czech society: continuity and change 46 (Hana Hašková & Zuzana Uhde eds., 2009). Although the man was not the sole breadwinner as he was in the West, he was still the main breadwinner in the family. See Jiřina šiklová, Are Women in Central and Eastern Europe Conservative?, in Gender Politics and Post-Communism: Reflections from Eastern Europe and the Former Soviet Union 75 (Nanette Funk & Magda Mueller eds., 1993).Google Scholar

131 Hilda Scott, writing in 1974, noted that “in agriculture, where 52 per cent of all workers are women, only 20 of the country's 5,800 farm cooperatives are headed by women,” and “only two of the more than three hundred district national health centers are directed by women, in spite of the “feminization” of medicine.” See Scott, Hilda, Does Socialism Liberate Women? Experiences from Eastern Europe 14 (1974).Google Scholar

132 Fodor observes, “[n]ot surprisingly, the functions women were supposed to fill were not only different but also inferior to those carried out by men.” Eva Fodor, Smiling Women and Fighting Men: The Gender of the Communist Subject in State Socialist Hungary, 16 Gender & Society 240, 258 (2002).Google Scholar

133 The average proportion of women in the National Assembly was twenty-three percent—double the amount than before the Communists came to power. At the communal level, representative bodies consisted of an average of thirty percent women. See Jaroslava Bauerová & Eva Bártová, ProměNy ženy v RodinĚ, Práci a ve VeŘEjném Ž Ivotě (Transformations of Women in the Family, work and public life) 234–35 (1987). On the limited role of the legislature in actual decision-making, see Hana Havelková, Women In and After a “Classless” Society, in Women and Social Class - International Feminist Perspectives 69, 75 (Christine Zmroczek & Pat Mahony eds., 1999).Google Scholar

134 During the entire period of forty-one years, only three women were either state or federal ministers. See Hana Havelková, Jako v loterii: politická reprezentace žen v ČR po roce 1989, in Mnohohlasem 25, 30 (H. Hašková, et al. eds., 2006). See also Scott, supra note 131, at 14.Google Scholar

135 The former should trigger suspicion of direct discrimination and the latter of indirect discrimination.Google Scholar

136 Rozsudek Obvodního soudu pro Prahu 1 ze dne 14.03.2005 [Judgment of the District Court for Prague 1 of Mar. 3, 2005], sp.zn 23 C 11/2003-70 (emphasis added).Google Scholar

137 Similarly to the previously mentioned decision, see also Rozsudek Okresního soudu v Blansku ze dne 30.06.2015 [Judgment of the District Court in Blansko of June 30, 2015], sp.zn 78EC 1342/2011 –279.Google Scholar