Marschall v Land Nordrhein Westfalen (1997) C-409/95 is an EU labour law and UK labour law case, concerning positive action

Positive action

Positive action is a controversial term, roughly synonymous with affirmative action, used in identity politics currents to connote promotion of people based on belonging to non majority identity groups in the workplace, educational institutions and positions in society, purpotedly without...

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Facts

Mr Marschall was a teacher. He applied for promotion and did not get it and a woman did. The school’s rules allowed for promotion of women ‘unless reasons specific to an individual candidate tilt the balance in his favour’. He sought an order that he was in fact appointed. The Verwaltungsgericht Gelsenkirchen

Gelsenkirchen

Gelsenkirchen is a city in North Rhine-Westphalia, Germany. It is located in the northern part of the Ruhr area. Its population in 2006 was c. 267,000....

 made a reference to the ECJ asking whether the rule was compatible with the Equal Treatment Directive 76/207/EC art 2(1) and 2(4).

Advocate General Jacobs gave his opinion that the rule in question was compatible with EU law.

Judgment

The European Court of Justice held that positive action was lawful if (1) the employer had a ‘saving clause’ so it could take into account objective factors specific to an individual man (2) the criteria in such a procedure did not discriminate against female candidates. The art 2(4) derogation could be triggered where positive action aimed to counteract ‘the prejudicial effects on female candidates’ of stereotyped attidues about women at work.