Equal opportunities through gender discrimination? "3 Postdoctoral Positions (for female researchers/Full-time) ... to promote equal opportunities and diversity at the Göttingen Research Campus"

Promote equal opportunities through gender discrimination - what are your views?

This is from a job ad (also as PDF below) at the University of Goettingen

ORIGINAL TEXT:

The Georg-August-University of Göttingen is currently inviting applications for 3 Postdoctoral Positions (for female researchers/Full-time) in research areas specifically associated to Junior Research Groups recently established within the framework of the German Initiative of Excellence.
 
The positions are advertised as part of the Dorothea Schlözer Programme, set up by the
University in April 2009 to promote equal opportunities and diversity at the Göttingen
Research  Campus  (for  further  information  please  refer  to:  www.uni-
goettingen.de/schloezer). The University of Göttingen seeks to increase the participation of
women in areas in which they are currently underrepresented. Qualified women are
therefore strongly encouraged to apply.
 
The successful candidates will be affiliated to one of the recently established Junior
Research Groups in the Courant Research Centres or to a Free Floater Research Group
depending on their specific research interests. For more information on the Junior Research
Groups and their research profile, please refer to http://www.uni-goettingen.de/postdoc and
contact the respective group leaders. The University of Göttingen was awarded the
achievement of excellence in 2007 and ranks among the top research institutions in
Germany, offering great career opportunities for young researchers and a vibrant academic
environment in research.
 
Applicants must have an earned PhD in a discipline related to the research topic of the
selected Junior Research Group. The successful candidate should have demonstrated
potential for interdisciplinary collaboration, an emerging track record of international
publications and a good knowledge of English. Candidates will have fie opportunity to
pursue their research agenda within the overall research programme of the respective
group. International applicants are welcome. Disabled persons with equivalent aptitude for
the position will be favoured. The positions are available from September 2010 onward and
will initially be funded for two years with the option to extend the contract for a further year.
Additionally the positions will be equipped with a basic budget to cover consumables and
travel costs. Salary is subject to the German TV-L scale (TV-L 13).
 
Candidates are requested to contact the respective Junior Research Group Leader, who
should write a letter of intent for the candidate and the proposed project. The application
material should be uploaded via the online application portal located at www.uni-
goettingen.de/positions-exini by June 17th, 2010. Applications should include a cover
letter, a current CV, a publication list, the above-mentioned letter of intent, and two letters of
reference. For informal enquiries about the posts please contact the Institutional Strategy
Office,  Angelika Kehlenbach (angelika.kehlenbach@uni-goettingen.de)  and visit
http://www.uni-goettingen.de/postdoc for further information.

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I had inquired about this at the German governmental Anti-Discrimination Agency (Antidiskriminierungsstelle des Bundes). Their answer (in German, sorry, but I summarize) is clear: While positive discrimination is allowed in order to protect or promote disadvantaged 'groups', disadvantaged group (here presumably 'women') cannot be given an absolute advantage when it comes to recruit for a job, unless this job can technically only be executed by members of a specific gender. The European Court of Justice has gone here beyond former German law. Now University of Goettingen needs to be asked whether these postdoc jobs can technically only be carried out by women. I am burning to see their answer. Otherwise they shall re-advertise the jobs and keep the headline gender-free. I don't want to be tedious here, but thought there was a striking contradiction in the advertisement, claiming to work in favor of equality but using the most basic methods of discrimination (based on corporeal features).

ANSWER (in German)


Das Allgemeine Gleichbehandlungsgesetz (AGG) hat grundsätzlich zum Ziel, Benachteiligungen u. a. wegen des Geschlechts im Berufs- und Arbeitsleben zu verhindern und zu beseitigen. Da sich nicht nur Beschäftigte, sondern auch Bewerberinnen und Bewerber auf den Schutz des AGG berufen können, haben Arbeitgeber bereits bei Maßnahmen der Personalbeschaffung darauf zu achten, dass diese benachteiligungsfrei sind.

In diesem Zusammenhang bestimmt § 11 AGG, dass ein Arbeitsplatz benachteiligungsfrei ausgeschrieben werden muss.

Nach dem AGG ist allerdings eine unterschiedliche Behandlung bestimmter Personen und Personengruppen u. a. dann zulässig, wenn durch diese Maßnahme bestehende Nachteile tatsächlicher oder struktureller Art für die besonders geschützten Personen ausgeglichen oder verhindert werden sollen (vgl. § 5 AGG). So sind z. B. gezielte Maßnahmen des Arbeitgebers zur Förderung benachteiligter Gruppen zulässig.

Diese positiven Maßnahmen dürfen direkt an ein ansonsten gegen Ungleichbehandlung geschütztes Merkmal des § 1 AGG (also z.B. an das Geschlecht) anknüpfen. Dabei müssen die Maßnahmen sich gegen aktuell bestehende oder zukünftig drohende Diskriminierung wegen eines dieser Merkmale richten (z.B. Unterrepräsentanz von Frauen/Männern).

Allerdings müssen die positiven Maßnahmen nach objektivem Maßstab geeignet und angemessen sein und bedürfen im konkreten Fall der Abwägung mit Rechtspositionen der anderen, nicht zu fördernden Personen. Das schließt nach der Rechtsprechung des Europäischen Gerichtshofs einen absoluten Vorrang der zu fördernden Gruppe aus (EuGH Rs. C - 450/93 vom 17.10.1995 - Kalanke). Soweit also Maßnahmen der Personalgewinnung und -beschaffung den Betroffenen keinen absoluten Vorrang einräumen, sind sie zulässig. Stellenausschreibungen dürfen sich daher nicht ausschließlich an die Betroffenen wenden. Sie dürfen jedoch diejenigen ausdrücklich zur Bewerbung auffordern, die der zu fördernden Gruppe angehören (vgl. hierzu auch LAG Düsseldorf, Urteil v. 12.11.2008, Az. 12 Sa 1102/08).

Eine (absolute) Beschränkung auf ein Geschlecht bei der Besetzung von Arbeitsplätzen ist dagegen nach § 8 Abs. 1 AGG nur dann zulässig, wenn das Geschlecht wegen der Art der auszuübenden Tätigkeit oder der Bedingung ihrer Ausübung eine wesentliche und entscheidende Voraussetzung für die Tätigkeit ist. Ob dies auf den von Ihnen beschriebenen Arbeitsplatz zutrifft, kann von hier aus nicht abschließend beurteilt werden.

Wir können Ihnen aber anbieten, zur eventuell näheren Klärung die Universität Göttingen um eine Stellungnahme zu bitten. Wenn Sie dies wünschen, möchten wir Sie um eine kurze Einverständniserklärung bitten sowie um Mitteilung, ob wir dabei Ihren Namen nennen dürfen oder Sie anonym bleiben möchten.

Zuletzt möchten wir noch darauf hinweisen, dass ein Verstoß gegen § 11 AGG an sich noch keine Rechtsfolge entwickelt. Eine nicht geschlechtsneutrale Stellenanzeige kann in einem Streitfall aber als Indiz für eine Diskriminierung im Rahmen der Darlegungs- und Beweislast des § 22 AGG dienen.

Grundsätzlich können sich alle Personen, d. h. auch Männer, die das fachliche Anforderungsprofil erfüllen, auf solche Stellenausschreibungen bewerben.

Im Falle einer Ablehnung (wegen des Geschlechts) könnten Betroffene dann Ansprüche nach dem AGG - z. B. auf Schadensersatz/Entschädigung - haben. Solche Ansprüche müssten innerhalb einer Frist von zwei Monaten schriftlich beim Arbeitgeber geltend gemacht werden. Die Frist beginnt mit der Ablehnung der Bewerbung. Drei Monate nach der schriftlichen Geltendmachung beim Arbeitgeber müssten diese Ansprüche dann vor dem Arbeitsgericht geltend gemacht werden (§ 15 Abs. 4 AGG und § 61b Abs. 1 Arbeitsgerichtsgesetz).
Good to see that the answer of the German anti-discrimination agency is so clear: the Göttingen call for applications violates their standards indeed, and for good reasons. Please let them get in touch with the university of Göttingen, and plese keep us up to date.
David, thanks for sharing this. I have noticed quite a few discriminatory ads in a number of different fields and several EU countries, both on the basis of gender and age. I came across this today on the American Anthropological Association website (of all places):

The Faculty of Social Sciences at the University of Vienna announces the position of a Professor of Social and Cultural Anthropology

(full time position under private law, limited to a period of 3 years) expected to be filled by October 1st, 2010. The University of Vienna intends to increase the number of women on its faculty, particularly in high-level positions, and therefore specifically invites applications by women. Among equally qualified applicants women will receive preferential consideration.

The capacity and readiness to further develop the discipline in research and teaching in cooperation with the professors of the department is assumed. Moreover, the willingness of the burden of an enhanced supervision of MA-theses until November 2012 (the end of the old Master-Programme) is assumed.


Here's the original.

The AAA is as much to blame as the University of Vienna for letting this get posted. I don't know about Austrian regulations, but I'm sure that it must be against EU law ... or am I mistaken?

Edit: I just noticed these ironic additions at the end of the ad:

"The following information is provided by the employer in accordance with AAA policy. AAA is not responsible for verifying the accuracy of these statements. They are not part of the actual position description submitted for publication by the employer.

This employer does prohibit discrimination based on sexual orientation/preference.
This employer does prohibit discrimination based on gender identity/expression."

...
hi

thanks for publicising these adverts - more worrying than the adverts themselves is the way in which so many people in see nothing wrong with them, especially in sociology. i'm usually assumed to be oppressive or mad if i voice dissent at such things. its good to see discussion about this...

Francine Barone said:
David, thanks for sharing this. I have noticed quite a few discriminatory ads in a number of different fields and several EU countries, both on the basis of gender and age. I came across this today on the American Anthropological Association website (of all places):

The Faculty of Social Sciences at the University of Vienna announces the position of a Professor of Social and Cultural Anthropology

(full time position under private law, limited to a period of 3 years) expected to be filled by October 1st, 2010. The University of Vienna intends to increase the number of women on its faculty, particularly in high-level positions, and therefore specifically invites applications by women. Among equally qualified applicants women will receive preferential consideration.

The capacity and readiness to further develop the discipline in research and teaching in cooperation with the professors of the department is assumed. Moreover, the willingness of the burden of an enhanced supervision of MA-theses until November 2012 (the end of the old Master-Programme) is assumed.


Here's the original.

The AAA is as much to blame as the University of Vienna for letting this get posted. I don't know about Austrian regulations, but I'm sure that it must be against EU law ... or am I mistaken?

Edit: I just noticed these ironic additions at the end of the ad:

"The following information is provided by the employer in accordance with AAA policy. AAA is not responsible for verifying the accuracy of these statements. They are not part of the actual position description submitted for publication by the employer.

This employer does prohibit discrimination based on sexual orientation/preference.
This employer does prohibit discrimination based on gender identity/expression."

...
Intriguing!

This reminds me of some readings and discussions that took place in my gender class some years ago, along with some external readings.

According to what I have learned, there are some people that feel that in the current situation, especially in the United States, men have more impressive resume and education due to past discrimination against women, unstable/intermittent work history of some women and less (?) educated women, which means if women and men applied and were judged equally, with the ssiblity of higher percentage of applicants being males... it would mean there is high chance that the male would be hired instead of female, whom is well suited but fall short due to past and current difficulties due to her gender, and continue the discriminatory cycle.

It's basically "Fight fire with fire" to raise female's reputation and provide younger women with more role models, to balance the ratio between male and females.
hi carolina

thanks for the reply.

i'm aware that is the theory - but it doesn't seem to work in practice! i'm also interested in the idea that women should need 'role models' anyway - i think the whole role model thing is a very questionable concept itself. i've got to go out urgently in a minute, but i'd really love to continue this discussion with anyone who wants to contribute - i've had SO many confrontations with my mates about this issue and it would be good to think about it at length. i'll try and post another comment later.
regards,

sally



Carolina Maria said:
Intriguing!

This reminds me of some readings and discussions that took place in my gender class some years ago, along with some external readings.

According to what I have learned, there are some people that feel that in the current situation, especially in the United States, men have more impressive resume and education due to past discrimination against women, unstable/intermittent work history of some women and less (?) educated women, which means if women and men applied and were judged equally, with the ssiblity of higher percentage of applicants being males... it would mean there is high chance that the male would be hired instead of female, whom is well suited but fall short due to past and current difficulties due to her gender, and continue the discriminatory cycle.

It's basically "Fight fire with fire" to raise female's reputation and provide younger women with more role models, to balance the ratio between male and females.
As a human being, my equality as a productive member of society should not be in question. That we need to codify discrimination in order to respect that which should never have been taken away is appalling. For me, this is not a gendered or feminist issue, both of which I tend not to take a strong stand on. Replace gender with age, ethnicity, disability, height, etc, and I find it immensely insulting to start from the presumption of lesser humanity. It adds to discrimination, rather than fixing the issue at hand, which would be giving the most qualified and suitable person the job. That we have to force people to hire women is an even more pathetic appraisal of our species. The argument that men fare better than women is well-established, and salary disparities (incl. in academia) are a sad reminder of this. That said, men are not free of discrimination in the workplace, either. How does/will discriminatory logic like this in hiring practices contribute to misandry? Why should young girls only have female role models?

This reminds me of a scene from The West Wing debating a proposed Equal Rights Amendment to the US constitution ["Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex"] that culminates in this comment:

AINSLEY (female lawyer against the amendment):
Because it’s humiliating! A new amendment we vote on, declaring that I am equal under
the law to a man. I am mortified to discover there’s reason to believe I wasn’t before.
I am a citizen of this country. I am not a special subset in need of your protection.
I do not have to have to have my rights handed down to me by a bunch of old, white men.
The same Article 14 that protects you, protects me. And I went to law school just to
make sure.




sally baker said:
hi carolina
thanks for the reply. i'm aware that is the theory - but it doesn't seem to work in practice! i'm also interested in the idea that women should need 'role models' anyway - i think the whole role model thing is a very questionable concept itself. i've got to go out urgently in a minute, but i'd really love to continue this discussion with anyone who wants to contribute - i've had SO many confrontations with my mates about this issue and it would be good to think about it at length. i'll try and post another comment later. regards,

sally
hi francine

really well articulated, thanks. the thing that is not usually mentioned in the positive discrimination/gender debates is that being a woman is something you're born with, you haven't developed it, its not a result of hard work, tenacity or indeed anything that could be attributed to your own efforts, it is simply a given. to suggest that i should therefore be more entitled to a job than a man, simply because i am a woman - unless the job really CAN'T be done by a man eg because it involves giving birth - seems rather similar to maintaining that a white aristocratic man should have more claim to be prime minister than i ever could, simply because he was born white, male and into the aristocracy. its a weird sort of essentialist argument, basically maintaining that someone is more entitled to a job because of some aspect of their being that they just happened to be born with. of course there are exceptions - if the playing field is very unlevel indeed, as it was for the first women to enter the uk parliament, i can understand reasons for positive discrimination. or if there are other over-riding considerations where it would be inappropriate to have a man in the job eg perhaps working with women who have been so traumatised by certain men that they wouldn't access any service provided by a man. but an awful lot of the gender discriminating adverts that i have seen do not come into these categories. interestingly, many such adverts are often in domains that are actually already very positive to women - such as HE institutions. i know of fields that are still often overtly hostile to women - i think neurosurgery is still a bit like this - where i have never heard a whisper of positive discrimination. so it seems to usually be promoted in the least appropriate domains anyway...
sally

Francine Barone said:
As a human being, my equality as a productive member of society should not be in question. That we need to codify discrimination in order to respect that which should never have been taken away is appalling. For me, this is not a gendered or feminist issue, both of which I tend not to take a strong stand on. Replace gender with age, ethnicity, disability, height, etc, and I find it immensely insulting to start from the presumption of lesser humanity. It adds to discrimination, rather than fixing the issue at hand, which would be giving the most qualified and suitable person the job. That we have to force people to hire women is an even more pathetic appraisal of our species. The argument that men fare better than women is well-established, and salary disparities (incl. in academia) are a sad reminder of this. That said, men are not free of discrimination in the workplace, either. How does/will discriminatory logic like this in hiring practices contribute to misandry? Why should young girls only have female role models?

This reminds me of a scene from The West Wing debating a proposed Equal Rights Amendment to the US constitution ["Equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex"] that culminates in this comment:

AINSLEY (female lawyer against the amendment):
Because it’s humiliating! A new amendment we vote on, declaring that I am equal under
the law to a man. I am mortified to discover there’s reason to believe I wasn’t before.
I am a citizen of this country. I am not a special subset in need of your protection.
I do not have to have to have my rights handed down to me by a bunch of old, white men.
The same Article 14 that protects you, protects me. And I went to law school just to
make sure.




sally baker said:
hi carolina
thanks for the reply. i'm aware that is the theory - but it doesn't seem to work in practice! i'm also interested in the idea that women should need 'role models' anyway - i think the whole role model thing is a very questionable concept itself. i've got to go out urgently in a minute, but i'd really love to continue this discussion with anyone who wants to contribute - i've had SO many confrontations with my mates about this issue and it would be good to think about it at length. i'll try and post another comment later. regards,

sally
Some-one mentioned age discrimination in the EU. In Germany, it is so accepted, that I found it hard to even get people to understand the concept. I remember one interview session in which a man in his mid or late fifties (married with children) and highly qualified and experienced was pitted against a well qualified (unmarried) young woman with adequate experience. For my boss, there were really only two salient issues: 1) of course, we'll take the younger applicant: she's under 35 (or 30) and has a long career ahead, 2) It's too bad that the other applicant's family won't get supported by the money this job would have brought in. I tried to argue that the older (better qualified in my boss's view) applicant, with school-age children and a shorter remaining career, was less likely to jump ship -- to no avail. Sure enough, after a few good years' work, the successful candidate was off to a higher profile position.

As to sex discrimination, it was common in Germany in the '80s and '90s and a bit less so in the first five years of this century to see all sorts of programs, lectures etc. to which men were excluded. The most liberal of young Germans saw this as perfectly proper. (I haven't lived in Germany for 5 years, so I can't speak to current conditions.)

by the way, I lived in Goettingen.
Thanks for sharing that, Kim. Ageism, like gender ("positive") discrimination, is counterproductive.

This reminds me of a recent example from the BBC where hiring practices were tailored to avoid accusations of ageism and gender discrimination: BBC seeks older female newsreader

From the article: Charity Age Concern said it was right "the BBC should aspire to have presenters that better reflect all sections of our society". But The Age and Employment Network, which supports older people in the job market, said the move looked "suspiciously like tokenism" and that it would "suspend judgement".

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