Draft bill discussed on equal opportunities in the private sector

In September 2000, the German government presented the outline of a draft bill on equal opportunities between men and women in the private sector. It is proposed that, within a specified period, enterprises should establish company-specific plans to promote women's employment. If enterprises make no efforts in this direction, legal regulations would come into force.

On 8 September 2000, at a conference in Berlin on "equal opportunities in the economy", the federal minister for families, senior citizens, women and youth, Christine Bergmann, presented the outline of a forthcoming draft bill on equal opportunities between men and women in the private sector. Prior to this presentation, Ms Bergmann had conducted a dialogue with representatives of employers' associations and trade unions, as well as with academic experts and political circles, concerning the basic questions addressed. Therefore the outline presented already takes into consideration various points of criticism.

Proposals

It is proposed that private enterprises would be obliged to take measures to achieve equal opportunities for women and men. The law will consist of two stages:

1. within enterprises, company management and employee representatives, and/or the social partners, would have the opportunity to reach agreements meeting minimum standards set by the law. This should allow enterprises to introduce measures which are tailored to their own requirements;
2. companies which are not able, or ready, to reach their own agreements within a time limit of about three years would be obliged to adopt the rules laid down by the law. These rules would be more restrictive than the minimum standards for independent agreements.

The law would, therefore, guarantee the principle of "subsidiarity" and give companies the opportunity to translate the law into practice. Only if company-level representatives and the social partners, who are the main addressees of the law, are not able to agree on measures, would detailed statutory regulations come into effect.

Independent agreements should cover the following:

• provisions to increase the proportion of women employed in areas where women are under-represented;
• measures to include the principle of gender "mainstreaming", so that gender issues are considered in all areas and form a guiding principle within the company;
• proposals for achieving equal pay within the company; and
• specific internal measures for protecting workers against sexual harassment.

Furthermore, company representatives and/or social partners should initiate additional measures concerning the equalisation of the position of women and men and the reconciliation of family life and work. These are to be laid down in the agreement and could cover:

• provisions to increase the share of women in leading positions;
• promotion of women in technical and new sectors;
• "mentoring";
• training and qualification;
• "family-friendly" provisions, such as opportunities for flexible working hours, part-time work (including for senior positions) and teleworking;
• provision of childcare organised or financed by the company; and
• opportunities for training during breaks in employment.

To monitor the standard of equal opportunities within private enterprises, an "equalisation audit" would be installed. There is also currently a controversial debate over whether the issue of a company's women- and family-friendliness should be used as a criterion for awarding public contracts. The public contracts awarded by the federal government, the federal state governments (""Länder) and local authorities amount to about DEM 400 billion per year. As the Cartel Senate (Kartellsenat) of Federal Supreme Court (Bundesgerichtshof) ruled in January 2000 that linking the award of public contracts to the payment of collectively agreed wages is unconstitutional (DE0001235F), it is rather doubtful if such a regulation might be introduced.

The rules that would apply if no agreement were reached would be more restrictive than the minimum standards for independent agreements, as there would be obligations not only to appoint an internal equal opportunities officer, but also to draw up an internal timetable for the promotion of equal opportunities

This basic framework presented by Ms Bergmann will be used to develop the concrete shape of a draft bill in consultation with trade unions and employers' associations.

Background

The United Nations Committee on the Elimination of Discrimination against Women (CEDAW) oversees progress in equality in countries that have signed the 1979 Convention on the Elimination of All Forms of Discrimination against Women. In CEDAW's 2000 comments on Germany, the position of women is described as follows: "While women were better educated than ever before and represented 42% of all gainfully employed or self-employed persons, they continued to suffer inequalities in the distribution of family work and in the allocation of training places and jobs. Their wages remained below those of men, they held 90% of all part-time jobs, were concentrated in few occupational groups and ranked lower in the business hierarchy." The latter point is illustrated by figures which were presented at the Setpember conference by Ms Bergmann: only 11% of all managerial positions in Germany are held by women, while in USA the share is 46% and in Canada 42%.

To improve the situation of women and to translate the concept of gender mainstreaming into practice, the German government agreed a programme called "Women and work" in June 1999. This programme includes commitments to:

• prepare a draft bill to increase the number of women in the federal administration and in policy advisory bodies;
• elaborate effective equal opportunity regulations for the private sector in order to address the under-representation of women in management positions in business and industry;
• plan measures to reconcile family and careers through greater work flexibility for women and men, flexibility of child-rearing leave and improvement of childcare institutions; and
• promote a "new male image" to help men fit into the role of equal participants in family work and raising children.

The proposed new law on equal opportunities in the private sector would thus meet one of the government's aims within the programme.

Reactions

On 30 March 1999, the women's committee of the German Federation of Trade Unions (Deutscher Gewerkschaftsbund, DGB) agreed a proposed framework for a possible law on equal opportunities in the private sector, which was used by the government in developing the outline for a draft bill, but contains more regulations than the government proposals. This framework was developed by Heide Pfarr, a former minister for women, labour and social affairs in the federal state of Hesse and now director of the Institute for Economic and Social Affairs (Wirtschafts- und Sozialwissenschaftliches Institut, WSI) within the Hans-Böckler-Foundation. In her term as a minister (1991-3) she achieved the adoption of a law on equal opportunities in the public services.

Ms Pfarr's proposals for a comparable law for the private sector are influenced by the experience in Hesse. Referring to the difficulties experienced there, she considers neither statutory plans for the promotion of women's employment nor quotas for female employees to be viable, especially as the means of imposing sanctions are little developed. Therefore her proposal shifts the responsibility for promoting female employment to employee representatives, and especially works councils. Every works council should increase its female membership to a level corresponding to the share of female employees within the company. This increased female representation, together with the co-determination rights of the works council, might offer the opportunity to establish workplace-level provisions on promoting women's employment. However, the fact that many companies do not have works councils should be met by legal regulations. As there are no monitoring mechanisms, it is seen as very important that not only individuals but also trade unions or women's organisations should be allowed to institute proceedings against companies not fulfilling the legal requirements. As this latter point has not been included in the government's current proposals, Ms Pfarr emphasises its importance, considering that as long as this gap is not filled, the whole law would be senseless. She considers the prospects for such rules to be good, as she sees no satisfactory arguments against them.

While DGB considers that the draft bill needs further amendments, employers' associations criticise its overall framework. The Confederation of German Employers' Associations (Bundesvereinigung Deutscher Arbeitgeberverbände, BDA) and representatives of small and medium-sized enterprises have described the plan as seeking to introduce a "state-planned economy". Although the employers' organisations share the aims of the government's "Women and work" programme, they oppose the instruments designed to realise these targets, as they consider special measures for promoting women's position at work as unnecessary. BDA argues that a female quota might work within political parties but not within enterprises, where qualifications and skills count, and not gender. It fears that enterprises will face additional costs if they have to establish a plan for promoting women's employment. On DGB's proposals to increase the number of women in works councils, BDA remarks that laws cannot change women's lack of interest in participating in works councils. Bernd Rückert, the vice-president of the national employers' association for the retail trade (Hauptverband des Deutschen Einzelhandels, HDE), further stated that several of the government's proposed regulations are geared towards large-scale enterprises and are not practical for small and medium-sized firms. Of Germany's 2 million enterprises, about 87% are small enterprises with under 20 employees.

The political opposition has also criticised Ms Bergmann's plans, arguing that the government is implementing its equality policy too slowly and that the proposals for a new law on equal opportunities are only a "paper tiger".

Commentary

Since voluntary action has not yet ended the under-representation of women in management positions in business and industry, several sectors still display strong gender segregation. Furthermore, the reconciliation of work and family life is still a major problem, especially for women. A new law on equal opportunities is overdue. The fact that women nowadays have at least the same qualifications as men, but are still under-represented in many areas, makes it obvious that improving skills and "qualification" might not be the answer to improving the position of women.

Experiences from other countries show that laws can improve the situation of women. In the USA, for example, the opportunity to institute proceedings against businesses which discriminate against women has not only meant that women are better integrated in male-dominated enterprises, but has also arguably increased sensitivity towards discriminatory practices and led to a change of consciousness among the population. This is not yet the case in Germany. If enterprises address the position of women at all, they mostly concentrate on a better reconciliation of work and family life, which is an important issue, but not sufficient. To make the proposed new law efficient, it is important that that not only individuals but also organisations are allowed to institute proceedings against companies not fulfilling the legal requirements, as Ms Pfarr has pointed out. Otherwise, the law would continue merely to appeal to enterprises to act voluntarily – and experience shows that this is not a promising approach. (Alexandra Scheele, Institute for Economic and Social Research, WSI).