Justification in Direct Sex Discrimination Law : An analysis of the justification defence within the EU Anti-discrimination Law

Sex equality law within the European Union is well developed and has since the Rome Treaty, given rise to several directives and other judicial acts on this matter of community law. The concepts of direct and indirect discrimination emerge from the general principles of Equal pay and Equal treatment and have been codified and amended several times until present. The lasts years, authors within the field of Equality Law has been pointing out that there is a common desire for simplification of discrimination law in Europe. The question has arisen whether this simplification could be implemented trough the introduction of a general justification defence for direct sex discrimination. The concept of direct sex discrimination - when a person of one gender is treated less favourably, on the grounds of gender, than a person of the other gender would be treated in similar circumstances - leaves no possibilities for such justification today. Indirect sex discrimination – which arises from the equal application of neutral rules that shows an adverse impact on one group – can be justified if the rule answers to true requirements of the job. Does the proposition that direct discrimination should be justified find support in the inconsistency of the present legislation? This paper will examine this and other questions concerning the wish for a general justification defence through studies of case law from the European Court of Justice as well as differing opinions from authors within the field of equality law