EU Anti-Discrimination Legislation Overview

1. Overview on EU anti-discrimination legislationTamás KádárSenior Policy OfficerEquinet – 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. InternationaleHandelsgesellschaftand 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 Article 14 – Prohibition of discrimination “The enjoyment of the rights and freedoms set forth in this Conventionshall 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

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 favourablythan another is, has been or would be treated in a comparable situationon 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)

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

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 conductrelated 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. THANK YOU! www.equineteurope.org Tamas Kadar, Senior Policy Officer EQUINET SECRETARIAT 138 Rue Royale, B-1000 Brussels Tel: +32 (0)2 212 3183 info@equineteurope.org