When is Pregnancy Discrimination Indirect Sex Discrimination?

The 1990 Dekker judgment of the European Court of Justice is often interpreted as establishing that no comparison between a woman and a man is required to demonstrate the existence of direct sex discrimination, and that pregnancy discrimination is always direct sex discrimination. The author argues that all claims of direct or indirect discrimination require a comparison, that the appropriate comparator for a pregnant woman claiming discrimination is a non-pregnant (usually male) person, and that such a comparison can be viewed as one based on sex. However, the appropriate comparator should generally be defined more precisely as a non-pregnant (usually male) person with a comparable need for leave with pay (e.g. because of illness). Using such a comparator will indicate, in many cases, that there is neutral treatment of pregnant women and ill men which has a disproportionate impact on women. The varying results in the ECJ's pregnancy discrimination cases can be explained as depending on whether or not a justification exists for this prima facie indirect sex discrimination, i.e. on the extent of the obligation to accommodate the needs of pregnant women that EC sex discrimination law imposes on employers. The limits on this obligation to date illustrate the limits of relying on existing sex discrimination law to protect pregnant women, rather than passing new legislation that would grant them ‘specific rights’.