July 31, 2018
Dr. Alexandra Timmer was one of the co-founders of this blog in 2010. She is assistant professor human rights law at Utrecht University, and acting specialist coordinator gender equality of the European network of legal experts in gender equality and non-discrimination.
Hülya Ebru Demirel v. Turkey is a case concerning sex discrimination in employment. A state-run regional electricity company refused to appoint the applicant because she was a woman, and the ECtHR duly found a violation of Article 14 ECHR. The judgment is largely a redux of Emel Boyraz v. Turkey (December 2014), which was based on similar facts. Demirel and Boyraz are interesting to discuss, as there are very few ECtHR cases concerning sex discrimination in employment. Unfortunately, as this blogpost will argue, the Court failed to address the structural hurdles that the applicants, because they are women, faced in the labor market. The State relied on obvious gender stereotypes, but the Court’s reasoning does not enter into that.
A state-run regional electricity company denied Hülya Ebru Demirel a job as security officer. She had passed the necessary civil service exam, but the company refused to appoint her because she was not a man who had completed military service. She took the issue to the local administrative court, which ruled in her favour. She then started working for the company. On appeal by the company, however, the Supreme Administrative Court overturned the judgment by the first court. Demirel lost further appeals. At the ECtHR Demirel complained of sex discrimination (Article 14 in connection with Article 8 ECHR). She also alleged that her right to a fair trial (Article 6) had been breached, as the Supreme Administrative Court had been inconsistent; it had refused to follow an earlier ruling in a similar case. This blogpost will focus on the discrimination complaint and will not further discuss the Article 6 part of the judgment.
The Court’s reasoning is very short in Demirel, as the Court referred to its reasoning in the Boyraz case from 2014. In what follows, therefore, I focus the analysis on Boyraz. The first remarkable thing about that judgment is that the Court dealt with the question whether dismissal falls under Article 8 (the right to private life) as a matter of admissibility, rather than the merits of the complaint. In my view, whether dismissal can amount to an interference with the right to private life is a question of scope rather than admissibility. The Court came to the conclusion that Article 8 was applicable, inter alia because ‘a measure as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person’s identity, self-perception and self-respect and, as a result, his or her private life’ (Boyraz, par. 44). Once the Court held that Article 8 was applicable, it had no difficulties in affirming that Article 14 was also applicable and that this case concerned a clear difference in treatment on the ground of sex, between persons in an analogous situation (Boyraz, par. 52). Following established case law, the Court held that such differences can only be justified with ‘very weighty reasons’ and that the State’s margin of appreciation is thus narrow (Boyraz, par. 51).
In both Boyraz and Demirel, the Government attempted to justify the unequal treatment by referring to ‘the nature of the duties of the post, which involved using firearms and working at night’ (Demirel, par. 32). In other words, the Government considered that women were unable to face the risks and assume the responsibilities of security officers (Boyraz, par. 53). The Court criticizes the Government for not substantiating this claim, and comes to the conclusion that the difference in treatment between men and women did not pursue a legitimate aim (Boyraz, par. 53-56). This is somewhat unusual, as the legitimate aim test does not often receive much consideration in the Court’s legal reasoning – it is more common for the Court to focus on the proportionality of the State’s actions.
Comment: the missing gender dimension
As so often when it comes to gender equality, I am struck by the lack of cases – despite the overload of cases the Court suffers from in general. The ECtHR has delivered very few judgments on the topic of sex discrimination in employment. The Court’s factsheet on gender equality mentions besides Demirel only Boyraz. In a case from 1997, Halford v. the United Kingdom, the Court was confronted by a woman who was not promoted – but the Court did not examine the case under Article 14. The 2001 case of Fogarty v. UK concerned a woman who was dismissed after she complained of sexual harassment by her employer at an Embassy. The Court did not examine the merits of the complaint, as it upheld State immunity. This lack of case law stands in stark contrast to reality, as many women face difficulties in getting or keeping jobs especially when they are pregnant or have a disability. The cases that make it to Strasbourg are just the tip of the iceberg; most instances of sex discrimination in employment remain invisible.
Making the most of the few cases that it gets, the Court should address the structural hurdles women face in trying to access employment, and precisely on this point the Court’s reasoning falls short. Gender stereotypes, for example about women’s lack of capacity or lack of availability due to family obligations, form such a structural obstacle. In my view, the Court should have pointed out that the State relied on gender stereotypes. For inspiration the Court could draw on its own case law, notably Konstantin Markin v. Russia. Several related stereotypes play a role here; the false stereotype that women are weak (too weak to use firearms and physical force), and the gender role type that women are delicate beings who are not fit for hard work.
In Boyraz and Demirel the Court only takes issue with the Government’s claim that the nature of the post of security officer made it unsuitable for women, on the ground that it was insufficiently substantiated. The Court also refers to the fact that in the case of another woman the domestic court had ruled in her favor and that the applicant herself had carried out these duties for three years (Boyraz, par. 54-55). As if lack of reasoning and inconsistency are the real problems here… The Court misses the point: both applicants were refused a job because the Government enforced outdated gender stereotypes. If advancing gender equality is really a major goal in the Council of Europe (Boyraz par. 51), then the gender stereotypes which keep in place the whole system of gender inequality, in both the public and private spheres, have to be challenged.