* Staff Writer, Boston College Third World Law Journal (2000–2001).
1 Rachel Alsop, A Reversal of Fortunes? Women, Work and Change in East Germany 95 (2000) (citing Gerda Jasper, Tendenzen der Veränderung in der Arbeitsmarkt- und Lebenslage der Frauen in den neuen Bundesländern 13 (1991)).
2 Rachel Aslop is a Lecturer in Gender Studies at the University of Hull.
3 See Alsop, supra note 1, at 1. Much of what Alsop writes relies on statistics or examples. See generally id. This Book Review is one interpretation of her book, drawing on what this author perceived to be the most relevant points. See generally id.
The official name of East Germany was the German Democratic Republic; the official name of West Germany was the Federal Republic of Germany. Dr. Don B. Bradley III, Small Bus. Advancement Nat’l Ctr., Germany, at http://www.sbaer.uca.edu/docs/ publications/pub00221.txt (last visited Feb. 14, 2000). The Federal Republic of Germany now refers to the unified states. Id.
4 See Alsop, supra note 1, at 94.
5 See id. at 48–52, 91, 111, 116.
6 See id. Alsop offers the textile and garment industries as contrasting examples of the ability of women to gain and retain employment. See id. at 117. Prior to reunification, over two-thirds of workers employed in the textile and garment industries were women. See id. at 118. However, the increased technology of textile plants and the need for highly qualified workers transformed the textile industry from a female to a mixed-sex industry. See id. at 150. In contrast, women continuted to dominate the garment industry. See id. Alsop suggests that because wages in the garment industry were low, it was not a field that men wanted to enter. See id. at 151. As a result, women were able to keep their jobs. See id.
7 See id. at 60–61. The conservative politics of the Christian Democratic Union reflected an attitude that women should either stay at home or perform traditional “women’s work.” See id.; see also infra note 15 (discussing three examples of conservative, family-based legislation).
8 See Alsop, supra note 1, at 169–71.
9 See id. at 35, 155.
10 See id. at 182.
11 See id.
12 See id.
13 See Alsop, supra note 1, at 169–71.
14 See id. at 95–96. Alsop discusses the overall desirability of men in employment, but relates, in particular, the experiences of women in the recruitment process because preferences for men are more readily apparent in that context. See id. at 85–96. Questions frequently asked of women in job interviews focus on familial obligations that might make a female employee less productive than a male employee. See id. at 96.
15 See id. at 63. Following are three examples of family-related legislation. First, while the traditional “housewife model” of law that directed women into housework and childcare was reformed, the “housewife marriage” remained as a result of public opinion and existing conditions, such as lack of childcare facilities. See Anita Grandke, Equal Rights—Compatibility of Family and Career—Legal Comparison: East Germany (GDR) and Federal Republic of Germany Today, 3 Cardozo Women’s L.J. 287, 301–02 (1996). Second, even tax law favors “housewife and gainfully employed husband” households. See Dr. Ninon Colneric, Making Equality Law More Effective: Lessons from the German Experience, 3 Cardozo Women’s L.J. 229, 250 (1996). Finally, legislation provides parents with a three-year baby leave. See Alsop, supra note 1, at 63. Parents are entitled to take a three-year leave of absence to raise a child with the assurance that they will be able to return to their previous jobs at the end of the three years. See id. Despite the availability of the baby leave to both parents, however, many provisions focus on the mother’s responsibility for childcare. See id.
16 See id. at 179; Grandke, supra note 15, at 306–07.
17 Alsop, supra note 1, at 196.
18 See Case C-281/97, Kruger v. Kreiskrankenhaus Ebersberg, 1999 E.C.R. I-5127.
19 The European Court of Justice is the highest court presiding over European Community law and is binding on all member states. See Anthony Arnull, The European Union and Its Court of Justice 21 (1999).
20 See Grundgesetz [GG][Constitution] art. 3 (F.R.G.), reprinted in Anne Peters, Women, Quotas, and Constitutions: A Comparative Study of Affirmative Action for Women under American, German, EC, and International Law 138 (1999).
21 See Peters, supra note 20, at 130–36.
22 See Alsop, supra note 1, at 94; Peters, supra note 20, at 130–36, 138.
23 See Grundgesetz [GG][Constitution] art. 3 (F.R.G.), reprinted in Peters, supra note 20, at 138. The pertinent articles read as follows: Article 3(2): “Men and women shall have equal rights. The State promotes the factual realisation of equal rights of women and men and works towards the abolition of existing disadvantages.” Id. Article 3(3): “No one may be disadvantaged or favoured because of his gender, his parentage, his race, his language, his homeland and origin, his faith, or his religious or political opinions. No one may be disadvantaged because of his disability.” Id.
24 See Peters, supra note 20, at 178–80.
25 See id. at 178.
26 See id. at 129–36.
27 See id.
28 See id. at 132.
29 See Peters, supra note 20, at 134, 211.
30 See id. at 134.
31 See id. at 208.
32 See id. at 129.
33 See id. On a constitutional level, private actors are both protected by laws ensuring entrepreneurial freedom and obliged to promote the objective value order of the constitution. See id. at 129–30, 218.
34 See Peters, supra note 20, at 213.
35 See id. at 129.
36 See id. at 214.
37 See Colneric, supra note 15, at 233.
38 See Peters, supra note 20, at 213.
39 See Alsop, supra note 1, at 1. This effect was almost universal, as over ninety percent of East German women were unemployed by 1989. See id. at 19.
40 See id. at 1, 155.
41 See id. at 1; Peters, supra note 20, at 129.
42 See Peters, supra note 20, at 158.
43 See id. at 158–59.
44 See id. at 159. Sexuality is another biological difference. See id. Sexuality is not discussed, however, as it is beyond the scope of this Book Review.
45 See Klaus Bertelsmann & Ursula Rust, Equality in Law Between Men and Women in the European Community: Germany 17 (1995).
46 See id. at 18, 41.
47 See Alsop, supra note 1, at 31. Alsop cites the mining and energy sectors as examples of such blue-collar jobs. See id.
48 See id. at 31, 87–88.
49 See Colneric, supra note 15, at 229–30.
50 See Consideration of Reports of States Parties: Germany, U.N. Comm. on the Elimination of Discrimination Against Women, 22nd Sess. (2000), at http://www.un.org/womenwatch /daw/cedaw/gerclu.htm [hereinafter U.N. Report].
51 See id. At the same time, however, the U.N. has noted that women in East Germany continue to lag behind women in West Germany. See id. Despite this internal imbalance, however, Germany is considered to be a model for other European countries. See id. The purpose of this section of the Book Review is to expose areas that could be strengthened. See id.
52 See Peters, supra note 20, at 231.
53 See id.
54 See Council Directive 76/207/EEC, 1976 O.J. (L 39) 40; Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997); Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995); Kendall Thomas, The Political Economy of Recognition: Affirmative Action Discourse and Constitutional Equality in Germany and the U.S.A., 5 Colum. J. Eur. L. 329, 350–63 (1999).
55 See Council Directive 76/207/EEC, art. 2(1), supra note 54; Peters, supra note 20, at 234.
56 See Council Directive 76/207/EEC, arts. 2(1), 2(4), supra note 54; Peters, supra note 20, at 234.
57 See Peters, supra note 20, at 235.
58 See Thomas, supra note 54, at 357.
59 See id. at 363.
60 See Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997); Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995); Thomas, supra note 54, at 351.
61 See Kalanke, 1995 E.C.R. at I-3051.
62 See id.
63 See id.
64 See Council Directive 76/207/EEC, art. 2(1), supra note 54; Kalanke, 1995 E.C.R. at I-3051.
65 See Council Directive 76/207/EEC, art. 2(1), 2(4), supra note 54; Kalanke, 1995 E.C.R. at I-3051; Thomas, supra note 54, at 357.
66 See Thomas, supra note 54, at 362–63.
67 See Kalanke, 1995 E.C.R. at I-3051.
68 See Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997).
69 See id.
70 See id.
71 See id. The Court recognized also that employers are reluctant to hire women for fear of familial commitments. See id.
72 See id.
73 See Thomas, supra note 54, at 361.
74 See Council Directive 76/207/EEC, art. 2(4), supra note 54; Marschall, 1997 E.C.R. at I-6363.
75 See Thomas, supra note 54, at 361–62, 363.
76 See id.
77 See id. at 351.
78 See id. at 363.
79 See Peters, supra note 20, at 210–11.
80 See id. In Germany, claimants have no right to discovery from their employer or from any other organization, making proving a case of discrimination very difficult. See Bertelsmann & Rust, supra note 45, at 111–12. As such, unless the actual hiring process is assured to be equitable from the outset, there is no guarantee that a woman could enforce her rights after being denied a job. See id.
81 See Colneric, supra note 15, at 233–34.
82 See Case 170/84, Bilka-Kaufhaus GmbH v. Weber Von Hartz, 1986 E.C.R. 1607, [1986] 2 C.M.L.R. 701 (1986); Colneric, supra note 15, at 233–34.
83 See Case C-281/97, Kruger v. Kreiskrankenhaus Ebersberg, 1999 E.C.R. I-5127.
84 See id.
85 See id.
86 See id.
87 See id.
88 See Treaty Establishing the European Community, Nov. 7, 1997, O.J. (C 340) 173 (1997), available at http://europa.eu.int/eurlex/en/treaties/dat/ec_cons_treaty_en. pdf [hereinafter E.C. Treaty]. Article 119, now Article 141, states the principle of equal pay for male and female workers for equal work. See id.; Kruger, 1999 E.C.R. at I-5127.
89 See Kruger, 1999 E.C.R. at I-5127.
90 See id.
91 See id.
92 See id.
93 See id.
94 See Kruger, 1999 E.C.R. at I-5127.
95 See id.
96 See id.
97 See id.
98 See Grundgesetz [GG][Constitution] art. 3 (F.R.G.), reprinted in Peters, supra note 20; E.C. Treaty, art. 119 (now article 141), supra note 88; Council Directive 76/207/EEC, supra note 54; Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997); Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995); see also discussion supra Part II.A.
99 See Kruger, 1999 E.C.R. at I-5127; Alsop, supra note 1, at 103, 193.
100 See Kruger, 1999 E.C.R. at I-5127.
101 See Peters, supra note 20, at 210.
102 See Thomas, supra note 54, at 363.
103 See Alsop, supra note 1, at 85–154.
104 See id. at 179; Grandke, supra note 15, at 306–07.
105 See Grandke, supra note 15, at 307.
106 See id.
107 See id. at 306–07.
108 See Thomas, supra note 54, at 350.
109 See Case C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997 E.C.R. I-6363, [1998] 1 C.M.L.R. 547 (1997); Case C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995 E.C.R. I-3051, [1996] 1 C.M.L.R. 175 (1995); Thomas, supra note 54, at 350–63.
110 See Marschall, 1997 E.C.R. at I-6363; Kalanke, 1995 E.C.R. at I-3051; Thomas, supra note 54, at 350–63.
111 See Peters, supra note 20, at 213–14.
112 See Alsop, supra note 1, at 169–71.
113 See id. at 61.
114 See Marschall, 1997 E.C.R. at I-6363; Kalanke, 1995 E.C.R. at I-3051; Thomas, supra note 54, at 350–63.
115 See Council Directive 76/207/EEC, supra note 54; Marschall, 1997 E.C.R. at I-6363; Kalanke, 1995 E.C.R. at I-3051; Thomas, supra note 54, at 350–63.
116 See EC Treaty, art. 119 (now article 141), supra note 88; Kruger v. Kreiskrankenhaus Ebersberg, 1999 E.C.R. I-5127.
117 See EC Treaty, art. 119 (now article 141), supra note 88; Kruger, 1999 E.C.R. at I-5127.
118 See EC Treaty, art. 119 (now article 141), supra note 88; Council Directive 76/207/EEC, supra note 54; Kruger, 1999 E.C.R. at I-5127; Marschall, 1997 E.C.R. at I-6363; Kalanke, 1995 E.C.R. at I-3051.
119 See Kruger, 1999 E.C.R. at I-5127; Colneric, supra note 15, at 233–34.
120 See Council Directive 76/207/EEC, supra note 54; Marschall, 1997 E.C.R. at I-6363; Kalanke, 1995 E.C.R. at I-3051; Thomas, supra note 54, at 350–63.
121 See U.N. Report, supra note 50.
122 See id.
123 See Dr. Edith Niehuis, Speech Delivered on the Occasion of the Presentation of the Second, Third and Fourth National Reports to the Committee on the Elimination of Discrimination Against Women, available at http://www.germany-info.org/UN/un_state_02_ 01_00.htm (Feb. 1, 2000).
124 See id.
125 See id.
126 See U.N. Report, supra note 50; Niehuis, supra note 123.
127 See id.
128 See Niehuis, supra note 123.
129 See id.
130 See id.
131 See Council Directive 76/207/EEC, supra note 54; Niehuis, supra note 123.
132 See Grandke, supra note 15, at 306–07.
133 See id. at 307.
134 See id.
135 See id.