Actual race/sex/etc. discrimination in leadership positions by pr ominent expressive associations

[Mark Tushnet]

People on the list might find the European Court of Justice's treatment of affirmative action interesting.  In *Kalanke,* 1996 All ER (EC) 66, the Court "invalidated" a rule that, where a man and a woman were equally qualified in fields where there were fewer women than men, gave automatic priority to the woman applicant.  This, the Court said, was inconsistent with the EC Treaty's requirement that "there shall be no discrimination whatsoever on grounds of sex."  In *Marschall,* 1997 All ER (EC) 865, the Court allowed an affirmative action program that gave priority to women over men "in the event of equal suitability, competence, and professional performance," unless reasons specific to an individual [male] candidate tilt the balance in his favor."  After *Kalanke,* the relevant "legislative" body had added a provision to the nondiscrimination requirement:  that it is "without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women's opportunities."  [Shameless plug: *Marschall* is reprinted in Francisco Forrest Martin and Mark Tushnet, The Rights International Companion to Constitutional Law (Kluwer, 1999), and, less shameless, in Henkin et al., Human Rights (West 2000).]

Mark Tushnet
Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC  20001
     202-662-9106
     202-662-9497 (fax)
tushnet at law.georgetown.edu