Frauenförderung oder Diskriminierungsschutz? Perspektiven der "Frauenquote" nach "Kalanke"

This article discusses how legislation referred to as "positive action" could be revised after the European Court of Justice handed down its "Kalanke" ruling. That ruling stated that a preference rule demanding that employers chose an equally qualified woman over a man for posts where women are underrepresented must be tempered by a clause allowing to prefer the man if he can rely on specific circumstances. The author recalls the reasons why men, before these preference rules were created for posts in public employment in Germany, were usually preferred for higher salaried posts. These were the principles that those who served longest and had more children and a non-salaried spouse were treated preferentially if equally qualified. Due to past sex discrimination and ongoing gender stereotypes, men were usually longer in employment and more often married to a non-salaried spouse than women, while these factors did not have any relation to qualification, or even suitability to fill the relevant posts. The author argues that creating the women's quota instead of openly stating that promotions had in the past been based on indirectly discriminatory criteria was in a way a more diplomatic option, avoiding telling senior male public servants that they were in post because they profited from gender discrimination. The author concludes that the preference rules could be replaced by eliminating indirect discrimination, but that this road would be much more devisive.