1. THE ANTI-DISCRIMINATION DIRECTIVES 2000/43 and 2000/78 IN PRACTICE
Trier, March 2010

2. Direct discrimination Indirect discrimination
Introduction to the European Union’s Anti-Discrimination Legislation and Definitions of Key Concepts:
Direct discrimination
Indirect discrimination
Harassment
Laura Calafà, University of Verona

3. Subtitle
The limits of equality in European Union law through the application of (the instruments of) Directives 2000/43 and 2000/78

4. Once upon a time …
Sex (or gender) or the Community’s regulatory context before the case of P v. S

5. The immediate consequences (as enunciated by the Court of Justice in the Grant case)
Art. 13 TEC (now Art. 19 TFEU, formerly Art. 6A TEU) and the Directives 2000/43 and 2000/78

6. The structure, scopes (objective and subjective), equality institutions, positive actions and key concepts of the (quasi) twin directives

7. Direct discrimination – legal concept
Direct discrimination shall be taken to occur when one person is treated less favourably than another person is, has been or would be treated in a comparable situation [on grounds of race, ethnic origin, age, disability, sexual orientation, religion or belief].

8. Interpretative profiles
The elasticity of appraisals of comparable situations: comparable, virtual and hypothetical male/female worker

9. Problems in interpretation
Justifications and derogations from prohibition: in cases of direct discrimination, no form of justification is admissible!

10. Indirect discrimination – legal concept
Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons [having a particular race, ethnic origin, age, disability, sexual orientation, belief or religion] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means for achieving that aim are appropriate and necessary.

11. Interpretative profiles
Refining the discriminatory offence in three stages:
The apparently neutral criterion or practice
The position of particular disadvantage (concerning the group … compared with other persons)
The assessment of the objective justification of the criterion or practice [legitimate aim and the use of appropriate and necessary means: Art. 2 (2)(b)]

12. Problems in interpretation
Justification reasons: do employment objectives, for example, suffice as legitimate reasons for considering differences in treatment to fall outside of the field of prohibited discrimination?

13. Grounds of disability (Dir. 2000/78, Art. 2 (2)(b)(ii))
“As regards persons with a particular disability, the employer or any person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.”

14. Reasonable accommodation for disabled persons (Art. 5)
Correlation with
Reasonable accommodation for disabled persons (Art. 5)
“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

15. Justified or generally excluded measures (only in Dir. 2000/78, Art
This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.
A generic exclusion and thus a dangerous one?

16. Italian example: Art. 3 (6) of Law 216/2003
“Differences in treatment shall not, however, constitute acts of discrimination for the purposes of Article 2, although they result indirectly in discriminatory effects, if they are objectively justified by legitimate aims and are pursued by means that are appropriate and necessary. In particular, acts intended to exclude persons who have been finally sentenced for committing offences concerning the sexual freedom of minors and child pornography from any employment involving the care, assistance, teaching and education of minors shall retain their legitimacy.”

17. THE DEROGATIONS OR AREAS OF NON-APPLICABILITY OF THE PROHIBITIONS (Art
THE DEROGATIONS OR AREAS OF NON-APPLICABILITY OF THE PROHIBITIONS (Art. 4 Occupational requirements)
GENERALISED DEROGATION: “Notwithstanding Article 2(1) and (2) (direct and indirect discrimination), Member States may provide that a difference of treatment which is based on a characteristic [related to race, ethnic origin, age, disability, sexual orientation, belief or religion] shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

18. THE SPECIAL DEROGATIONS CONTAINED IN THE FRAMEWORK DIRECTIVE
The derogations or non-applicability of the prohibition of discrimination on grounds of age and disability concerning the armed forces (Art. 3 (4))
The derogations or non-applicability of the prohibition of discrimination on grounds of disability alone (Arts. 5 and 7(2))
The derogations or non-applicability of the prohibition of discrimination on grounds of age with regard to employment policies, labour- market and vocational-training objectives as well as retirement or invalidity benefits (Art. 6(1) and (2)), the last of these being reinforced by the wording of Art. 3(3).
The derogations associated with grounds of religion or belief in organisations the ethos of which is based on religion or belief (Art. 4 (2))

19. Harassment – legislative concept
Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct [related to race, ethnic origin, age, disability, sexual orientation, belief or religion] takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.

20. Interpretative profiles
Forms of harassment and discrimination: dignity and equality (or equality of treatment) and appraisals of comparable situations … problems of a doctrinal nature!

21. Instructions to discriminate
Instructions to discriminate against people [on grounds of race, ethnic origin, age, disability, sexual orientation, belief or religion] shall be deemed to be discrimination.
The effect of amplifying the scope of responsibility in this provision is that the offence is deemed to have been committed without considering whether or not the instruction was actually followed … so is there any point in distinguishing between direct and indirect discrimination?

22. Interpretative profiles
Homogenisation of the instruments of anti-discrimination law (Dir. 2002/73; Dir. 2006/54)

23. In abeyance:
The horizontal directive or the directive on other/additional forms of discrimination

24. The gift of systematisation:
The Treaty of Lisbon and the legally binding nature accorded to the Charter of Fundamental Rights (Nice 2000)

25. Discrimination and harassment in ten years of Court of Justice case law (... roughly one judgment per year, but with increasing frequency!)
The tendency to emerge from a number of landmark judgments, establishing the scope and effectiveness of scantily defined instruments:
Grounds of age and the Mangold case
Grounds of sexual orientation: from P to Grant and through to Römer (and including the Tadao Maruko case)
Grounds of disability and the complicated relationship between Chacon Navas and Coleman
The uniqueness of the Feryn case…
The persistent (and apparent) ease of invoking grounds of religion and belief … as things stand at present!