Is "Assistant Professor Position (Tenure Track) for a female Researcher" illegal in Austria?

Question

Not so long ago an Austrian institution posted a job ad titled "Assistant Professor Position (Tenure Track) for a female Researcher". The description says further

As part of a special measure towards increasing female employment in scientific positions and promoting young researchers, the Faculty of [censored department] at the [censored institution name] invites applications for an Assistant Professor position (tenure track) for women expected to begin on May 2, 2018.

My understanding is that it is unlawful to ask for a particular gender in a job ad unless the gender is strictly necessary to perform the job duties. For academic tasks, the gender of the researcher is irrelevant. Does the institution run into legal issues with this ad? Could someone legally generate profit from such an ad by suing the institution (or the goverment behind it) for discrimination? Have such attempts been already undertaken in academia? (Outside academia, we see successful lawsuits at least in Germany.)

An aside: Let us speak only about the legal and financial part of the particular situation rather than anything else. Let us not discuss whether the job ad and the institution should be condemned or praised or anything of the kind.

Answer 1

In brief, the job ad in question seems perfectly in line with an official document of the institution, the Career Advancement Plan for Women (see below). If there is any issue it would have to be with this plan, not just the particular job ad, which seems more unlikely.

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According to Austrian law it can be legal to put measures into place with the intent of reducing existing inequalities, even when in isolation they would be discrimination. In that sense the understanding of the general principles expressed in the question is correct, except that there is an explicit exception to them if the intent is to reduce existing inequalities.

The most relevant law here is the Bundesgesetz über die Gleichbehandlung [something like 'Federal law for equal treatment'].

It mostly details the understanding recounted in the question, but it also has a paragraph that allows for exceptions of the form mentioned above.

Positive Maßnahmen

§ 8. Die in Gesetzen, in Verordnungen, in Instrumenten der kollektiven Rechtsgestaltung oder in generellen mehrere Arbeitnehmer/innen umfassende Verfügungen des/der Arbeitgebers/Arbeitgeberin getroffenen Maßnahmen zur Förderung der Gleichstellung von Frauen und Männern, insbesondere durch Beseitigung tatsächlich bestehender Ungleichheiten im Sinne des Art. 7 Abs. 2 B-VG, gelten nicht als Diskriminierungen im Sinne dieses Gesetzes. Dies gilt auch für Maßnahmen zur Förderung der Gleichstellung von Frauen und Männern in den in § 4 genannten Bereichen. Der Bund kann für besondere Aufwendungen, die Arbeitgeber/inne/n bei der Durchführung solcher Maßnahmen entstehen, Förderungen gewähren.

Somewhat improved Google Translate's translation:

Positive action

§ 8. The measures taken in laws, regulations, collective legal instruments or in general multi-employee dispositions of the employer to promote equality between women and men, in particular by eliminating existing inequalities within the meaning of Art Art. 7 para. 2 B-VG are not considered to be discrimination within the meaning of this Act. This also applies to measures to promote equality between women and men in the areas mentioned in § 4. The Federal Government may grant subsidies for special expenses that employers incur in carrying out such measures.

The title is "positive measures" and then it roughly says that measures whose intent it is to level existing inequalities are not consider as discrimination and federal government might even fund them.

Now, this does not simply authorize everybody to do whatever they think might be appropriate. But, it admits the general principle, and further laws and regulations can build on it.

Let me now jump from the general to the concrete.

The job ad in question seems to be in line, and likely even motivated, by an official document of the institution in question (or if it is not the institution in question than it is a comparable one). Thus, if something should not be legal it would be this plan. The above mentioned §8 should be applicable to this document.

This document, called Frauenförderungsplan [Career Advancement Plan for Women] contains among other things §6(3) (quoting the English version):

To increase the proportion of women among professors and among young scientists, special measures shall be taken, for example establishing tenure-track positions and professorships for women.

That the institution has such a Career Advancement Plan for Women is motivated by, indeed prescribed by, the Austrian law that governs the organization of universities [Universitätsgesetz 2002 – UG], specifically §20b.

Also of relevance §41:

§ 41. Alle Organe der Universität haben darauf hinzuwirken, dass in allen universitären Arbeitsbereichen ein ausgewogenes Zahlenverhältnis zwischen den an der Universität tätigen Frauen und Männern erreicht wird. Die Erreichung dieses Ziels ist durch geeignete Maßnahmen, insbesondere durch die Erlassung und Umsetzung eines Frauenförderungsplans, anzustreben.

Saying roughly (my translation) "All parts of the university must work towards achieving equal numbers of women and man employed, for all types of employment. This goal shall be achieved by putting appropriate measures into place, in particular by adopting and implementing a career advancement plan for women.

The respective plans for this and other Austrian universities can also be found on a site of the Austrian government.

Maybe noteworthy, I did not find that explicit suggestions in some others which I looked at though; I did not look at all and not very carefully either.

Another relevant law would be the Bundes-Gleichbehandlungsgesetz – B-GlBG, especially §11. Specifically § 11b.(1) not only authorizes but prescribes the practice described in the answer of rexkogitans for areas in which women are underrepresented. (While universities, I think, are not directly in any case not completely covered by this law, since it is about employment by the Austrian state, which is not anymore the way people are employed at Austrian universities, except for some existing old contracts, explicit reference is made to this regulation in the above mention document as some king of inspiration.)

Further legal explications can be found in the Career Advancement Plan for Women quoted above.

To sum up, the job ad in question seems perfectly in line with an official document of the institution, the Career Advancement Plan for Women. If there is any issue it would have to be with this plan, not the particular job ad.

Yet this plan makes detailed reference to various laws and alike (roughly and clumsily recounted above); certainly people with legal expertise were involved in the creation of that document.

Now, in principle, it is still possible that there is some legal problem with this plan or opposing legal opinions of what is or is not legal, but if there is one it should be rather subtle.

Indeed, there are earlier precedence for this practice. In 2010 an Austrian newspaper reported about some assistant professor positions advertised for women only at another Austrian university. A representative of the university is quoted:

Das stelle auch keine unzulässige Diskriminierung dar, sagt Manfred Rathmoser, Sprecher der Uni Linz. So seien laut EU-Recht „spezifische Vergünstigungen für ein Geschlecht zulässig“, wenn diese zum Ausgleich von Benachteiligungen dienen. Und Frauen seien in der Wissenschaft unterrepräsentiert.

My rough translation:

This is no inadmissible discrimination, says Manfred Rathmoser, speaker of the University of Linz. For, according to EU law "specific advantages for one gender are admissible" if those serve to even out existing disadvantages. And women in research are underrepresented.

However it continues:

So einfach sei die Sache nicht, betont jedoch Bernd-Christian Funk, Experte für öffentliches Recht an der Uni Wien. Funk studierte für die „Presse“ die Stellenausschreibung genau. Sein Schluss: „Ich halte sie gelinde gesagt für rechtlich problematisch“, so Funk.

My translation:

The situation is not so simple, emphasizes Bernd-Christian Funk, expert for public law the the University of Vienna. Funk studied the job advertisement for "Presse" [the name of the newspaper]. His conclusion: "I consider them, put mildly, as legally problematic," said Funk.

It then continues to say that while things like preferential treatment in cases of equal qualification are alright this goes to far and is against European and Austrian legal norms. The advice to men that feel discriminated was to apply and to then go to court.

If you or somebody else wants to pursue this matter seriously it may be an option to contact him (Funk) and inquirer what he thinks about this now, and the relevant paragraph of the "Frauenförderungsplan" of the TU Wien. It seems he is still active, though at a different institution, and his contact details are easy to find. You could also contact the relevant institution.

Conclusion: The job ad seems to be covered by official documents and policies of the university, which in some detail argue how they tie in with Austrian law. This notwithstanding there appear to be opposing legal opinions, too.

Answer 2

The University of Melbourne recently advertised for three senior positions in mathematics intended for women. Their argument is that, by underrepresenting women on the faculty, they are not providing adequate support and representation for female students in mathematics (and by extension other STEM fields).

While this may not be an ideal way to achieve that goal, there is something to be said for the argument that women are definitely underrepresented in the ranks of faculty. The University of Melbourne's argument is that it's partly a systemic issue, and thus exceptional measures are needed to change this.

As an additional issue, in many EU countries, such hires are permitted under the auspices of increasing diversity in the academic ranks. For instance, the Excellence Initiative of the DFG has supported such hires at German universities. The Austrian university you're citing may have a similar view.

As far as legality is concerned, I doubt that there's a way to get significant profits on a discrimination claim. To be successful, you'd need to prove that you were more qualified than the job than the person actually hired. Given the long-term existence of the program (the initiative is over a decade old) and the lack of such rulings, there may not be grounds to sue or to profit from it. (And it's not a very worthwhile investment of time and resources.)

Answer 3

As a too-long remark to fit as "comment", and also as a repost (in an archaic sense) to the question and pursuant comments.

In my 40-year experience in academic mathematics in the U.S., it is clear to me that while, "of course", no official, explicit, institutionalized bias against women in math exists, operationally there is a huge bias.

As I've noted elsewhere, for me the original stunning case was my senior (and good-mathematician, otherwise) colleague's remark that a youngish woman "didn't look like a mathematician". At the time, I was too naive (and junior) to object, or do much about it. But it stunned me.

Since then, some of my colleagues, and some of the male grad students, have reacted to my dept's aggressive recruitment of women as "corruptive", and somehow caving-in to "low standards". WTF? True, it was "simpler" in the old days when there were no "distracting" influences in grad school (women?), and there was no two-body problem in jobs (because "wives" would "obviously" follow husbands around... to the ends of the earth).

This deconstruction can go on for a long time... In some sense, for what it's worth, I myself do apologize to the women who've been subjected to the denial-of-issue... idiocy.

(People can email me easily enough if further discussion is interesting...)

Answer 4

A while back we had a similar question Is it lawful for a fellowship linked to a permanent faculty position at a British university in the STEM field to only be available to females? (to the extent Austria/UK and fellowship/assistant professor are similiar) that led me to ask this question on Law.SE.

In the UK, and I think the EU, positive action (or in US English Affirmative Action) can only be given to a member of a vulnerable group if the candidates are equally qualified. This had always seemed weird to me since we know that no two faculty candidates are ever equally qualified, but then I started working for the US government.

For the US government, at least civil service in the DoD, HR ranks candidates qualifications on a small discrete range (i.e., good, better, best). When we do a search, as far as HR is concerned, all the candidates with a best ranking are equally qualified. If there is a candidate within that group that qualifies for special consideration (e.g., veterans), they get the job, but if there are best qualified candidates, then a better qualified veteran candidate they do not get the job since best is better than better. From this perspective, a women only search might be legal since it will only progress if at least one candidate is best qualfified, which would allow positive discrimination to be applied.

Finally, I really see 3 possibilities. First, the university legal department looked at the ad and said it was okay. Second, the university marketing department look at the ad and said it was okay regardless of if it was legal. Third, no one looked at the ad.

My understanding of EU law is that if it is illegal by EU law, it is illegal in all EU member countries (i.e., a member country cannot make something legal that the EU says is illegal), but that member countries can make things illegal beyond what the EU says. Therefore, if these types of targeted searches are legal by EU law, there would need to be an Austria specific law over ruling the EU law.

Answer 5

None of us here are experts in employment law, in Austrian law, or Austrian employment law. And this is not an example where one can easily work things out without being an expert in Austrian law, because this is legal in some countries (like Australia) and illegal in other countries (like the US). However, all major universities have lawyers who work for them who are experts in employment law. So obviously at least one person who is much more of an expert on this than any of us thinks that it's legal or at least not clearly illegal. If you want advice about your chances suing someone you're going to need to hire a lawyer.

Answer 6

Disclaiming that I'm not a lawyer and this isn't legal/financial advice.

Perhaps defensible as an experiment

I suspect that this may be defensible in small-scale application.

I'd see two arguments for it:

1. From a civil angle, male job-seekers have had their pool of potential positions negligibly reduced, such that it'd be difficult to demonstrate material harm.

2. From a statutory angle, if it's an experiment to see what'd happen if an institution's staffed with more females, then they have a material need to consider only female applicants.

They also seem to argue that discrimination against females is on-going, such that they'd attempt to mitigate the argument that they're discriminating with the counter-position that they're actually correcting for discrimination. This argument seems a bit flimsier, but it can help supplement their position based on the other arguments.

It's a neat experiment!

From a systems perspective, I strongly suspect that their perspective on gender issues is off-base and this won't actually do much to affect the nature of the gender-ratio in Computer Science. However, they probably think that this is exactly what's needed.

The really cool part is that they're testing it. So, sexist or not, it's fascinating to see what'll come of it, and surely the results should help inform future policy.

Where's the money?

I'd imagine that legal means would be unlikely to directly result in much cash. However, this is a politically/socially sensitive topic that a lot of folks are interested in.

So, if there were some sort of legal battle or other big fuss, then book sales or similar popularization might yield some cash. Depending on how it's done, this could be very helpful or destructive to society. An insightful look at the situation could be on the helpful side while hate-mongering would be on the destructive end.