1. Current challenges in the field of equality law
Dr Sara Benedi Lahuerta
Equinet Conference
Strengthening the effectiveness of European Equal Treatment Legislation
Brussels, 16 June 2016

2. 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.

3. 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.

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
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.

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
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

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
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.

7. 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.

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
-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.

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
-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.

10. 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