GENDER EQUALITY
The Legal Framework
Dr. Charlotte Camilleri
Malta Employers’ Association
EUROPEAN UNION
 Equality between women and men is one of
the fundamental principles of Community
law. The European Union's objectives is to
ensure equal opportunities and equal
treatment for men and women and to
combat any form of discrimination on the
grounds of sex. This implies improving the
gender balance by promoting parental
leave, maternity and working time.
The Maltese Constitution
At national level, the principle of ‘Non-Discrimination’ is
enshrined in the Maltese Constitution
“
affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by race, place of
origin, political opinions, colour, creed or sex whereby persons of one
such description are subjected to disabilities or restrictions to which
persons of another such description are not made subject or are
accorded privileges or advantages which are not accorded to persons
of another such description”
Protection from discrimination
The Maltese Constitution is supreme
Section 45 (1) “…no law shall make any
provision that is discriminatory either of
itself or in its effect”
Section 45 (2) “…no person shall be
treated in a discriminatory manner by
any person …”
Article 14 of Maltese Constitution
Equality between men and women
“The State shall promote the equal right of
men and women to enjoy all economic, social and
cultural, civil and political rights and for this
purpose shall take appropriate measures to
eliminate all forms of discrimination between
the sexes by any person, organization or
enterprise; the State shall in particular
aim at ensuring that women workers enjoy
equal rights and the same wages for the
same work as men”
Discrimination in Employment
Articles 26 –32 of The EIRA
(Chapter 452 of the Laws of Malta)
Equality for Men and Women Act
(Chapter 456 of the Laws of Malta)
Definitions
Discriminatory treatment – EIRA
“
any distinction, exclusion or restriction which
is not justifiable in a democratic society
including discrimination made on the basis of
marital status, pregnancy or potential
pregnancy, sex, colour, disability, religious
conviction, political opinion or membership in
a trade union or in an employers’ association”
Definitions
Equality For Men and Women Act
“ based on sex or because of family
responsibilities
and
includes
the
treatment of a person in a less
favourable manner than other person
has been or would be treated on the
grounds of sex or because of family
responsibilities.”
Article 4 (2) of Gender Equality Act
Employers shall be deemed to have
discriminated if such employers:
 Manage the work, give promotions, distribute
tasks, offer training opportunities or arrange
the working conditions on the basis of sex or
family responsibilities.
 Alter the working conditions to the detriment
of such employees,
 Neglect their obligation to suppress sexual
harassment.
GENDER EQUALITY ACT
 FAMILY RESPONSIBILITIES
 SEX
Two forms of discrimination
Might be difficult to determine the demarcation line
between :
Direct Discrimination
Indirect Discrimination
Direct Discrimination
Ask this…
Had the person in front of me been a
man/woman would I have treated him
differently?
Would I have not offered him/her particular
training?
Indirect Discrimination
Indirect discrimination occurs “where an
apparently neutral provision, criterion or practice
disadvantages a substantially higher proportion of
the members of one sex unless that provision,
criterion or practice is appropriate and necessary
and can be justified by objective factors
unrelated to sex.”
Educational and Vocational Training
Prohibition of discrimination on grounds of sex with
regard to access to all types of vocational guidance,
vocational training, and re-training.
Applicable to :
All educational establishments or any other entity
providing vocational training or guidance and covers:
- the access to any course, vocational training or
guidance;
- the award of educational support for students or
trainees;
- the selection and implementation of the curricula; and
- the assessment of the skills or knowledge of the
students or trainees
Moreover…
Educational establishments and entities
providing vocational training are to
ensure, within the limits of their
competence,
that
curricula
and
textbooks
do
not
propagate
discrimination as well as are to fulfil
their obligation to suppress sexual
harassment.
NOTA BENE
Discriminatory adverts
Conditions of employment
Work of equal value
Sexual harassment
Victimisation
Not discriminatory:-
 Where
by reason of the particular
occupational activities concerned, or of
the context in which they are carried
out, such a characteristic constitutes a
genuine occupational requirement….
 Burden of proof lies with person who
alleges that there is a genuine
occupational treatment
Advertising
The Advert CANNOT:
 Discriminate between job seekers
 Request info re private/family life
UNLESS
 Employer can prove that work can only be performed
by a person of a specific sex
N.B Advertising includes disseminating info about the
vacancy by word of mouth from person to person
Article 26 of EIRA on Advertising
It shall not be lawful for any person
 When advertising or offering employment
or selecting applicants to subject them to
discriminatory treatment
 To
subject
employees
already
in
employment to discriminatory treatment
with regards to conditions of employment
Employers discriminate if….
Employee is given less favourable status than
other on the basis of sex & family responsibilities in view
of:







Managing the work
Giving promotions
Distributing tasks
Offering training opportunities
Working conditions
Alter conditions after employee invoked right under the law.
Neglect the obligation to suppress sexual harassment
Practical examples
Cannot use the term handy man but handy
person.
Cannot use the term sales girl but sales
person
When advertising a vacancy for a particular
post, cannot use a picture of a man or woman,
but either both or nothing at all.
Harassment
It shall not be lawful for an employer or an employee to harass
another employee or the employer by subjecting such
person to

any unwelcome act,

request or conduct,

including spoken words,

gestures or the production,

display or circulation of written words,
pictures or
other material,
which in respect of that person is based on sexual
discrimination and which could reasonably be regarded as
offensive, humiliating or intimidating to such person.
Sexual Harassment
 To subject other persons to an act of physical intimacy
 To request sexual favours from other persons
 To subject other persons to any act or conduct with
sexual connotations, including spoken words, gestures
or the production, display or circulation of any written
words, pictures or other material, where the act, words
or conduct is unwelcome to the persons to whom they
are directed and could reasonably be regarded as
offensive, humiliating or intimidating to the persons to
whom they are directed
Cont…Sexual Harassment
The persons so subjected or requested are treated less
favourably by reason of such persons’ rejection of or
submission to such
subjection or request, it could
reasonably be
anticipated that such persons would
be so treated.
Offence

without prejudice to any greater liability under
any other law

be liable on conviction to a fine (multa) of not
more than Lm1000 or to imprisonment of not
more than 6 months or to both
Victimization -
Pay Back Time or Not…



It shall not be lawful to victimize any person
for having made a complaint to the lawful
authorities or
for
having
initiated
or
participated
in
proceedings
for redress on grounds of
alleged breach of the law or
for having disclosed info, confidential or
otherwise, to a designated public regulating
body, regarding alleged illegal or corrupt
activities being committed by his employer or by
persons acting in the employer’s name
and
interests.
Termination of Employment
With regards to termination of employment,
the
law
further
safeguards
against
discriminatory treatment on the basis of
marital status or pregnancy. Any condition
enabling
the
employer
to
terminate
employment during pregnancy or on her
contracting marriage is illegal
Redress
Complaint to the Industrial Tribunal
within 4 months from alleged breach.
If Tribunal is satisfied – may take
measures it deems fit
National Commission for the Promotion
for Equality
National Commission for the Promotion of Equality for Men and
Women (NCPE)
Members of NCPE are appointed by the
Prime Minister.
NCPE is composed of:
 Commissioner &
 Six other members (at least 3 of whom
shall be women)
 Hold office for a period of 2 years
Functions of the NCPE
 Identify, establish and update all policies directly or indirectly
related to issues of equality for men and women
 Identify needs of disadvantaged persons by reason of their sex
 Monitor implementation of national policies
 Liaise and ensure coordination
 Direct and continuous contact in the field of equality issues
 Elimination of discrimination
 General investigations and investigate complaints
 Referral by Minister
 Provide assistance to discrimination victims
 Proposals for amendments to the Act etc
 Perform any function assigned by Minister
Thank you
Dr. Charlotte Camilleri
camillch@maltanet.net