Women, work and care: Women's dual role and double burden in EC sex equality law

This article reviews EC sex equality law, especially recent case law of the European Court of Justice, using a frame of analysis based on the double burden of women's dual role in 'work' and 'care', and the difficulty of encapsulating that double burden into conventional 'formal' equality analyses. An argument for a model of 'substantive' equality is developed, drawing on American and Canadian feminist scholarship, and this is set against the Court of Justice case law under review. In general terms, a mixed message can be seen, especially in relation to recent cases. Even in areas such as pregnancy and maternity, the substantive equality approach of the earlier case law has gradually lost ground once more to a more formalist approach especially in relation to the interaction of pregnancy, maternity and equal pay. A detailed analysis is given of financial consequences of women's work in the field of caring, as these have been dealt with by the Court of Justice. It is apparent that women are frequently losing out (financially) in the search for a concept of equality which often seems to benefit men more than women. Finally, the limited scope for positive action to alleviate past disadvantage under EC law is considered. The conclusion to be drawn is that so long as the Court of Justice remains unwilling to make use of the interpretative space which it has carved out for itself, EC sex equality law will remain strictly limited in its utility.