Resumo

FIGUEROA BELLO, Aída. No…, yes…, rather, it depends. Chiaroscuros of positive actions in the European community jurisprudence in labor context. Bol. Mex. Der. Comp. [online]. 2022, vol.55, n.164, pp.81-107.  Epub 14-Jun-2024. ISSN 2448-4873.  https://doi.org/10.22201/iij.24484873e.2022.164.18090.

In the European context, positive actions have established clearly controversial strategies and notable difficulties and its jurisprudence is no exception. The European Court of Justice has established its verdicts, in most cases, on a determined rejection (Kalanke), but has then established a certain flexibility (Marschall and subsequent judgments). The ECJ has ruled with a marked sharpness and legal rigor regarding its constituting elements so that measures of substantial equality can be legitimized and applied. It is precisely these two cases which have marked a turning point and determine a before and after regarding positive actions and gender equality in the European Union. The jurisprudential rulings of the ECJ, contemplate as the only foundation, the recognition of formal equality, with liberal features of justice, and characterize an interpretive diversity full of interpretive fluctuations, following a European pattern. It is important to notice that all the cases are part of a labor environment, which is not surprising, as this is the origin of the equality between men and women, and it was the ECJ, the driving force behind its most important resolutions.

Palavras-chave : European Court of Justice; positive action; substantial equality; jurisprudence on equality between women and men; European Union.