Law and Rights
- Slipping Through Our Fingers: The Cjeu Rules On The Value Of Parenthood In Eu Law
Steve Peers The vast bulk of EU legislation and case law on sex discrimination aims to facilitate women?s access to employment, and their equal treatment within the workplace. Yesterday?s CJEU ruling in Maistrellis approaches these issues from an unusual...
- Fact-checking Nigel Farage: Will The Eu?s Asylum Policies Admit Half A Million Terrorists?
Steve Peers Yesterday, Nigel Farage, the leader of the UK Independence Party, arguedthat the EU?s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ?Islamic...
- Fact-checking Nigel Farage: Do Most Countries Ban Migrant Children From State Schools?
Steve PeersI was planning to wait until after Easter to comment in detail on the EU law issues in the UK?s general election. But yesterday?s reported comments by Nigel Farage, the leader of the UK Independence Party, demand an immediate short reply....
- Pregnant Workers And Eu Citizens? Free Movement Rights
Steve Peers Jessy Saint Prix, a young French woman, came to live in Britain in 2006, in order to embark on a career as a school teacher. In the event, she has learned rather more than she probably anticipated about EU law and the English legal system....
- Violence Against Women: Can Eu Law Play A Bigger Role In Combatting It?
Steve Peers Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue,...
Law and Rights
Does EU law prohibit condoning discrimination against breastfeeding women?
Steve Peers
Yesterday, Nigel Farage, the leader of the UK Independence Party (UKIP) stated that while he had no personal objection to women breastfeeding in public, it should be for businesses to decide on their own rules. Perhaps they could ask breastfeeding women to ?sit in a corner?. In any event, it shouldn?t be hard to breastfeed a baby in a way that wasn?t ?openly ostentatious?.
He was referring to a case in which a restaurant asked a woman to place a napkin over her baby. Another café has recently suggested that women should breastfeed in the disabled toilets.
There?s an interesting legal dimension to this issue. First of all, is it legal to discriminate against breastfeeding women? Secondly, to what extent is it illegal even to encourage such discrimination, or at least to condone it? The latter is a fair description of Farage?s comments.
Discrimination against breastfeeding women
As some press articles have pointed out, the Equality Act 2010makes it illegal in the UK to discriminate against breastfeeding women in employment or public places like restaurants, subject to very limited exceptions. There?s an excellent summary of the law here, on the Maternity Action website. So businesses can?t make up their own rules on this issue, as Farage seemed to assume ? although perhaps his point was that the law ought to change.
What about EU law? There are separate Directives concerning sex discrimination in employment, and sex discrimination as regards goods and services offered to the public, which would apply to restaurants. Neither of them explicitly bans discrimination as regards breastfeeding. But the Court of Justice of the European Union (CJEU) has long ruled that discrimination against pregnant women is discrimination on grounds of sex. Its reasoning is that even though not all women are, have been, or will become pregnant, only women can be pregnant, and so discrimination on grounds of pregnancy is therefore direct sex discrimination. Logically this reasoning applies by analogy to breastfeeding: even though not all women will become mothers, or breastfeed if they do, only women can breastfeed.
If this is correct, there?s a ban on discrimination against breastfeeding mothers right across the EU, and the UK?s law simply reflects its EU obligations. Of course, leaving the EU (UKIP?s key policy) would mean that the UK no longer had such obligations.
Endorsing or condoning discrimination
Of course, Nigel Farage didn?t himself insist that a breastfeeding mother had to cover herself with a napkin in a restaurant, or actually make a new mum sit in the corner. He merely said that he could accept it if businesses chose to do this ? even though (which he didn?t mention) this would be illegal.
There?s an interesting line of case law of the CJEU on the circumstances in which publicly supporting discrimination gives rise to legal liability. First of all, in AGM COS.MET, a Finnish government official disparaged the safety of Italian lifts. Sales of the lifts promptly plummeted (as it were), and the manufacturer sued the Finnish government for damages. The CJEU ruled that the State would be liable for its official?s comments if, on the facts of the case, those comments were attributable to the State. One factor to consider was whether the State distanced itself from those comments. On this point, it?s interesting to note that David Cameron?s office immediately denounced Farage?s remarks yesterday. This is probably not an attempt to reduce the government?s legal liability, but rather a bid to hoover up the female votes that Farage apparently doesn?t really want that much. But the effect is the same.
So can there be liability for discriminatory comments by private individuals? In Feryn, the CJEU said that a business could be liable for stating publicly that it would not hire ethnic minorities, due to objections by its customers. That?s broadly similar to Farage?s point that other restaurant customers might be ?embarrassed? by ?ostentatious? breastfeeding. Perhaps it would distract their attention too much from gazing at Page 3 of The Sun.
Later on, in the Associatie Accept case, the CJEU ruled that a homophobic rant by the part-owner of a football club could give rise to liability for that club, if there was a perception that he had a significant influence on that club's policies. While Nigel Farage certainly seems to influence government policy generally, in this particular case David Cameron?s response to Farage's comments yesterday would rule that out.
So as things stand, Nigel Farage?s comments would not give rise to personal or state liability ? although lawsuits against the restaurants that discriminate against breastfeeding women would be a different matter. And things would also surely change if Farage were the Deputy Prime Minister ? although in that case, the UK?s EU membership and the Equality Act would likely not last very long in any event.
Cartoon: Los Angeles Times
Cartoon: Los Angeles Times
Barnard & Peers: chapter 20
- Slipping Through Our Fingers: The Cjeu Rules On The Value Of Parenthood In Eu Law
Steve Peers The vast bulk of EU legislation and case law on sex discrimination aims to facilitate women?s access to employment, and their equal treatment within the workplace. Yesterday?s CJEU ruling in Maistrellis approaches these issues from an unusual...
- Fact-checking Nigel Farage: Will The Eu?s Asylum Policies Admit Half A Million Terrorists?
Steve Peers Yesterday, Nigel Farage, the leader of the UK Independence Party, arguedthat the EU?s response to the migrant deaths crisis ran the risk of admitting half a million terrorists on to EU soil. He based this claim on the threat of the ?Islamic...
- Fact-checking Nigel Farage: Do Most Countries Ban Migrant Children From State Schools?
Steve PeersI was planning to wait until after Easter to comment in detail on the EU law issues in the UK?s general election. But yesterday?s reported comments by Nigel Farage, the leader of the UK Independence Party, demand an immediate short reply....
- Pregnant Workers And Eu Citizens? Free Movement Rights
Steve Peers Jessy Saint Prix, a young French woman, came to live in Britain in 2006, in order to embark on a career as a school teacher. In the event, she has learned rather more than she probably anticipated about EU law and the English legal system....
- Violence Against Women: Can Eu Law Play A Bigger Role In Combatting It?
Steve Peers Today's report from the EU's Fundamental Rights Agency (FRA) on the scale of violence against women within the European Union is simultaneously an enormously impressive attempt to collect standardised data on this important issue,...