1. 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

2. Setting the scene… 2 Legislation in force by protected ground SexDir 2004/113/EC (goods & services) Dir 2006/54/EC (employment) Dir 2010/41/EU (self-employed) Race & ethnic originDir 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)

3. Shortcomings of EU Equality Law (I) Different levels of protection for different grounds  “Hierarchy”  Are these differences justified? 3 EmploymentSelf- employed Goods & Services Sex  Race/ethnic origin  Religion/belief  Age  Disability  Sexual Orientation  Gender reassignment 

4. 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 4 EmploymentSelf- employed Goods & Services Sex  Race/ethnic origin  Religion/belief  Age  Disability  Sexual Orientation  Gender reassignment 

5. 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 5 Individual & remedial action Underreporting Empl.Self- empl. Goods & Services Sex  Race/ethnic origin  Religion, age, disability, sexual or.???? 

6. 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 Examples:  Some MS requiring almost conclusive evidence (UK, Ireland, Germany, Spain)  Not applied in victimisation claims (Denmark) 6

7. 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? 7 Obstacles for effective implementation (II)

8. 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 8

9. 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 9

10. Concluding remarks Improvements can be introduced at least at 3 levels: 1.EU substantive legislation Removing inconsistencies 2.EU enforcement legislation Wider standing rules Requirement to set up equality bodies for all protected grounds Clarification of duties of equality bodies  minimum standards 3.Implementation at national level Continuing monitoring implementation/interpretation Best practices The role of Equality Bodies as ‘experts’ 10