1. Overview on EU anti-discrimination legislation Tamás Kádár Senior Policy Officer Equinet – European Network of Equality Bodies

2. Outline of the presentation
Context and background
Legal framework
Direct discrimination
Indirect discrimination
Harassment

3. Context and background
European Communities founded in 1950’s, with the primary aims of peace, free trade, economic development, energy security
Treaty of Rome prohibiting nationality discrimination (free movement) and gender discrimination in employment, subsequently widened with specific directives, but rationale remains economic
ECJ judgments establishing fundamental rights as general principles of Community law (see e.g. Internationale Handelsgesellschaft and Nold cases, C- 11/70 and C-4/73)

4. Treaty of Amsterdam gave legislative competence to the Community to combat discrimination
2000: two specific anti-discrimination directives, followed by new directives on gender equality
2008: Proposal for a ‘horizontal directive’
2009: Lisbon Treaty – the Charter of Fundamental Rights of the EU becomes binding – ‘same legal value as the Treaties’; ‘EU shall accede to the ECHR’

5. European Convention on Human Rights
See also equal treatment provisions in European Social Charter adn UN documents
Article 14 – Prohibition of discrimination
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
Protocol 12, Art. 1 – General Prohibition of discrimination
“The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

6. EU Legal Framework I The Treaty on European Union
Article 2: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non- discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
Article 6: Charter of Fundamental Rights of the EU has the same legal value as the Treaties; the EU shall accede to the ECHR; Fundamental rights guaranteed by the ECHR and constitutional traditions common to the MS constitute general principles of EU law

7. EU Legal Framework II
The Treaty on the Functioning of the European Union
Art 8: gender mainstreaming obligation for the EU
Art 10: non-discrimination mainstreaming obligation for the EU
Art 18 and Art 45: nationality discrimination is prohibited in the scope of EU law
Art 19: legislative competence to the EU to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation – special legislative procedure, unanimity in the Council and consent of the EP required
Art 157(1): equal pay for equal work or work of equal value principle
Art 157(3): legislative competence to the EU to ensure gender equality in employment – ordinary legislative procedure (former co-decision)

8. EU Legal Framework III
Charter of Fundamental Rights - applicable to all EU Institutions and bodies and to MS only when they act within the scope of EU law
Art. 20: equality before the law
Art. 21(1) “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.”
Art. 21(2) “Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
Art. 23: equality between women and men in all areas with the possibility of specific advantages for the under-represented sex.
Art. 26: integration of persons with disabilities
Art. 33(2): reconciliation of family and professional life, protection for maternity

9. EU Legal Framework IV Secondary legislation
Directive 79/7/EEC: Gender Equality in Social Security
Directive 92/85/EEC: Protection of pregnant workers
Directive 2000/43/EC: Race Directive
Directive 2000/78/EC: Employment Framework Directive
Directive 2004/113/EC: Gender Goods and Services Directive
Directive 2006/54/EC: Gender Recast Directive (employment)
Directive 2010/18/EU: Parental leave
Directive 2010/41/EU: Self-employed Directive
Result: currently a patchwork of protection, hierarchy of grounds
Free movement: Regulation 492/2011 and Directive 2014/54/EU on free movement of EU workers, against nationality discrimination

10. EU Legal Framework V
Recital 12 of Gender Goods and Services Directive refers to healthcare explicitly – according to EC it is clearly covered
Bulk of case law on gender and age in employment, no case whatsoever on religion and belief
Race: cases in employment (e.g. Feryn, Meister), goods and services (Belov, Kamberaj)
4. Social advantages
Regulation (EEC) No 1612/68 on freedom of movement for migrant workers, requires Member States to grant social advantages without regard to nationality. In this context, social advantages have been defined by the European Court of Justice as benefits of an economic or cultural nature which are granted within the Member States either by public authorities or private organisations. The same concept is applied here. Examples include concessionary travel on public transport, reduced prices for access to cultural or other events and subsidised meals in schools for children from low income families. Subparagraph (f) requires that, where such advantages are granted, it must be done without discrimination on grounds of racial or ethnic origin.
Fields/Grounds
Race
Gender
Sex. orientation
Age
Disability
Religion
Nationality
Employment
YES
Education NO
G & S, housing
PARTLY
(housing)
Soc. Protection
(Healthcare)
YES (Regulation 883/2004)
Soc. advantages
 NO

11. EU Legal Framework VI
Proposal for a ‘Horizontal equal treatment directive’ in 2008, currently in front of the Council of the EU.
The Directive, when adopted and implemented, will secure protection in all the missing areas for the grounds of sexual orientation, religion, age and disability.

12. EU Legal Framework VII
Another source of EU law: CJEU judgments (judge-made law)
In the field of discrimination law:
Bulk of the case law on gender and age
Cases on disability, race and ethnic origin and on sexual orientation
No case law on religion and belief

13. Direct Discrimination

14. Direct Discrimination I
Ensuring that people in similar situations receive similar treatment
‘Direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on the ground of a protected characteristic’ (concept of discrimination / definitions – similar regulatory approach in all Directives)
Key elements:
Less favourable treatment (no need for an identifiable victim)
In a comparable situation (can be hypothethical)
Related to a protected characteristic (but note shift of the burden of proof)

15. Direct Discrimination II
Exceptions:
Genuine and determining occupational requirements
Applies to all grounds
It has to be legitimate and proportionate
Typical examples can relate to artistic performances
“Member States may provide that a difference of treatment which is based on a characteristic related to a discrimination ground 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.”

16. Direct Discrimination III
Positive action
Specific measures to prevent or compensate for disadvantages linked to protected grounds – objective: ensuring full equality in practice
Formal equality / equality of opportunities / equality of results?
CJEU case law relating to sex discrimination (Kalanke, Marschall, etc.) – implications for other grounds…?

17. Direct Discrimination IV
Exceptions (only in Directive 2000/78/EC):
3. Ethos-based employers on the ground of religion or belief – if this is a genuine, legitimate and justified occupational requirement. This provision cannot justify discrimination on another ground.
In addition, ethos-based organisations can require individuals working for them to act in good faith and with loyalty to the organisation's ethos.
This provision has so far not been interpreted by the CJEU, but limited national case law is available suggesting a restrictive interpretation (e.g. in the Amicus case UK courts said it applies only for a very limited number of posts, directly related to promotion or representation of the religion, but not e.g. for a teacher)
Similar ECtHR case: Rommelfanger v Germany: it is not a breach of freedom of expression to dismiss a doctor for criticising the church’s teaching on abortion…

18. Direct Discrimination V
Exceptions (only in Directive 2000/78/EC):
4. Armed forces on the ground of age and disability
5. Public security, public order, public health, rights and freedoms of others
6. Health and safety regulations concerning persons with disabilities
7. Exceptions related to age

19. Direct Discrimination – cases
Richards (C-423/04)
Complainant male-to-female transsexual person
She claimed pension upon her 60th birthday, but was refused, as pensionable age for men was higher
Government claimed that the correct comparator were men who have not undergone gender reassignment
CJEU held that the correct comparator are women who have not undergone gender reassignment
CJEU accordingly held that this was discrimination based on sex (gender reassignment)

20. Direct Discrimination – cases
Hay (C-267/12)
Employee conducts civil partnership with a same sex partner and asks for benefits linked to marriage  Employer refused, saying those benefits are reserved for marriage
CJEU: marriage and French civil union is comparable
Since marriage is not available for same sex couples, not providing them the same benefits is direct discrimination
The fact that civil partnership is not restricted to same sex couples is irrelevant
(in France, at the time, marriage not open to same-sex couples)
See also Maruko, Römer – similar cases, but civil partnership only for homosexual couples

21. Indirect Discrimination

22. Context What is discrimination?
Treating people in similar situations differently
Same treatment to people in different situations, therefore adverse effects
Direct discrimination is often easier to detect, thus employers and service providers may be tempted to use indirect means, base the differentiation on neutral criteria
In some cases (e.g. religious dress) possibly very fine line between direct and indirect discrimination

23. Legal framework
Essentially identical definition in all EU anti-discrimination directives.
‘Indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular protected characteristic at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.’

24. Legal framework Key elements: Apparently neutral rule
Particular disadvantage for persons with a protected characteristic compared with others
General defence: objective justification
Legitimate aim
Appropriate
Necessary

25. Legal framework Objective justification test:
Purely financial considerations are not legitimate
Specific legitimate objective required (unrelated to discrimination), a simple general reference not enough
Appropriateness: the measure should be suitable to reach the desired objective
Necessary: it must be shown that other potential measures which are less intrusive are unable to reach the objective or would be significantly less effective

26. Examples Dress codes (prohibition of wearing any headgear)
Driving licence as requirement for a job
Minimum height requirement for a job
Irrationally high qualifications required
Less favourable work conditions for part-time workers

27. Case law A fine line between direct and indirect discrimination
Maruko case (C-267/06):
‘Life partnership’ of a homosexual couple
Mr Maruko was refused survivor’s pension since he was not married to the deceased (marriage not possible)
Otherwise life partners are in a comparable situation with married persons  claim for indirect discrimination, European Commission agrees
CJEU: if the situation is comparable, this constitutes direct discrimination (being unable to marry was inseparable from their sexual orientation)

28. Case law Cases at national level
Dismissing an employee for wearing a headscarf in a store (religion) – is this direct or indirect discrimination? (Belgian HEMA case direct discrimination)
Can a commercial company claim neutrality?

29. Harassment

30. Harassment
‘Harassment shall be deemed to be discrimination […], when an unwanted conduct related to any protected ground takes place with the purpose or effect of violating the dignity of a person or creating an intimidating, hostile, degrading, humiliating or offensive environment.’
Key elements:
Unwanted conduct
Related to a protected ground
Purpose or effect described (no intention needed)
No need for a comparator

31. Harassment Examples of harassment:
Comments from the employer/colleagues on someone’s religion (e.g. headscarf) or sexual orientation
Degrading comments from a service provider
According to the anti-discrimination law of some countries, hate speech can be deemed harassment

32. Tamas Kadar, Senior Policy Officer
THANK YOU!
Tamas Kadar, Senior Policy Officer
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138 Rue Royale, B-1000 Brussels
Tel: +32 (0)