Current challenges in the field of equality law Dr Sara Benedi Lahuerta s.benedi-lahuerta@soton.ac.uk Equinet Conference Strengthening the effectiveness of European Equal Treatment Legislation Brussels, 16 June 2016

Legislation in force by protected ground Other relevant legislation Setting the scene… Legislation in force by protected ground Sex Dir 2004/113/EC (goods & services) Dir 2006/54/EC (employment) Dir 2010/41/EU (self-employed) Race & ethnic origin Dir 2000/43/EC (employment & goods & services) Religion/belief, age, disability, sexual orientation Dir 2000/78/EC (employment) Other relevant legislation Working Time, Pregnant workers, Parental leave, Part-time & Fixed-Term workers Adoption pending Proposal for a Horizontal Directive on religion or belief, disability, age or sexual orientation discrimination (goods & services) -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

Shortcomings of EU Equality Law (I) Different levels of protection for different grounds  “Hierarchy” Are these differences justified? Employment Self-employed Goods & Services Sex  Race/ethnic origin Religion/belief Age Disability Sexual Orientation Gender reassignment -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

Shortcomings of EU Equality Law (I) Different levels of protection for different grounds  “Hierarchy” Are all these differences justified? 2008 Commission Proposal for a Horizontal Directive could improve this Employment Self-employed Goods & Services Sex  Race/ethnic origin Religion/belief Age Disability Sexual Orientation Gender reassignment -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

Shortcomings of EU Equality Law (II) Uneven enforcement mechanisms for different grounds Why are equality bodies only required for sex & race discrim.? If Horizontal Directive is adopted: Mismatch between objectives and enforcement tools EU equality law objectives: ‘putting into effect’ equal treatment Empl. Self-empl. Goods & Services Sex  Race/ethnic origin Religion, age, disability, sexual or. ???? -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right. Individual & remedial action Underreporting

Obstacles for effective implementation (I) Confusion over concepts of direct and indirect discrimination Examples: UK: ‘reason why’ required for indirect discrimination (Essop) France: hypothetical comparators not allowed Issues concerning the application of the burden of proof test Some MS requiring almost conclusive evidence (UK, Ireland, Germany, Spain) Not applied in cases of ‘actio popularis’ (Bulgaria) Not applied in victimisation claims (Denmark) -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

Obstacles for effective implementation (II) Lack of awareness about legislation among: Vulnerable groups Some legal professionals Lack of awareness about: Equality bodies Other support organisations Duties of equality bodies are not clear enough Ex: What is meant by ‘independent assistance’? General support or information? Legal advice? Representation in legal proceedings? -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

The role of equality bodies (I) The potential: Raising awareness Addressing underreporting High accessibility Building confidence with vulnerable groups Comprehensive & independent advice provision Relieving victims’ burden to report: Bringing actions in their own name Bringing actions in the public interest (no identifiable victim) Conducting investigations & issuing recommendations Addressing systemic discrimination Informal resolution, negotiation -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

The role of equality bodies (II) The challenges: Limited resources  budget cuts Ensuring organic & financial independence in practice Not enough visibility & engagement with other key stakeholders Limited accessibility for victims Limited powers Lack of competence to initiate legal proceedings Lack of investigatory powers Lack of legal advice -Progressive evolution of EU equality law +Different levels of protection for different grounds +Uneven enforcement mechanisms for different grounds -Constitutionalisation despite these inconsistencies? Overall, whilst the right to equal treatment seems to have consolidated its fundamental right status within EU law, and an increasing number of academics are referring to the constitutionalization of the EU right to equal treatment, this piecemeal evolution has left some inconsistencies behind, which cast doubts on the robustness of EU law’s protection in this field. In fact, in the same way that EU citizenship is still perceived by some as a market right rather than as the fundamental status of Union citizens, these inconsistencies in the right to equal treatment could be a sign that, despite its formal consolidation as a fundamental right, it is still, in practice, more a market right than a fundamental right. Addressing this lack of coherence seems essential to strengthen the EU right to equal treatment as a constitutional right.

Concluding remarks Improvements can be introduced at least at 3 levels: EU substantive legislation Removing inconsistencies EU enforcement legislation Wider standing rules Requirement to set up equality bodies for all protected grounds Clarification of duties of equality bodies  minimum standards Implementation at national level Continuing monitoring implementation/interpretation Best practices