Place Aux Dames: The Ideological Divide between U.S. and European Gender Discrimination Laws

The United States and the European Union are both firmly committed to eliminating gender discrimination. However, as I show in this Article, they have adopted fundamentally different strategies in pursuing this objective: Whereas the United States offers plaintiffs much more generous procedural rules and far more powerful remedies, the European Union relies on more comprehensive substantive prohibitions against discrimination. What lies behind these different approaches? Contrary to existing scholarship, which emphasizes path dependence arguments, I argue that differences between gender discrimination laws in the United States and Europe can best be understood as the result of a fundamental ideological divide.

U.S. law is designed to grant protection against discrimination across social boundaries. By contrast, much of Europe espouses a "social-democratic" conception of gender discrimination law that views the protection of working-class employees as its primary concern. Several European countries have recently adopted or are considering the adoption of mandatory gender quotas for corporate boards. However, as I demonstrate in this article, such quotas merely address the symptoms of a much more foundational issue.

European gender discrimination law is designed to protect working-class women, not women with managerial aspirations. Quotas cannot redress this imbalance; they can merely hide its symptoms. Accordingly, European reformers who aspire to a more class-neutral gender discrimination law will have to consider much more profound structural changes.