Definition of Key Concepts

1. Definition of Key Concepts Professor Erika Szyszczak University of Leicester and Littleton Chambers

2. Key Concepts • Direct Discrimination • Indirect Discrimination • Sexual Harassment • Harassment

3. Direct Discrimination • Overt and intentional • Less easy to identify since outlawed perpetrators likely to resort to covert means to exercise choices but see Draehmpaehl ,Commission v Spain, Firma Feryn, Commission v Greece • Can it be justified/exempted? • Problem of “multiple discrimination” (“inter-sectional discrimination”)

4. EC Law Legislation • Article 141 EC • Article 13 EC • Directive 97/80/EC (Burden of Proof) • Directive 2000/78/EC (Employment Equality Directive) • Directive 2002/73 (Gender Employment Directive) • Directive 2004/113 (Gender Goods and Services Directive) • Directive 2006/54/EC (Recast Gender Employment Directive)

5. Article 14 and Protocol 12 ECHR • Prohibition of discriminationThe 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.

6. Symbiotic Relationship • Influenced by international and regional law (ECHR); • Influenced by national law and case law

7. Ostrava

8. Definition • Complainant must show that s/he has been “treated less favourably than another is, has been, or would be treated in a comparable situation.”

9. Questions to ask: • Why? • Who is the comparator? Problems • How to discover the reasons for a decision/behaviour • “Equal misery” outcome

10. Some case law examples • P v S and Cornwall CC • Richards v Secretary of State for Work and Pensions • Grant v South-West Trains • Dekker v VJV Centrum • Schnorbus v Land Hessen

11. No comparator • Issue in equal pay claims where there is occupational crowding (jobs which are typically female/male); • Different work situations, especially where different employers for the same job

12. Age Discrimination • What is a sufficient difference in age for the basis of a comparison? • “Don’t trust anyone over the age of 30” • Now 21?

13. Stereotyping • Roma: R (ERRC) v Immigration Officer at Prague Airport and another • Gender roles: bans on mine working/night work

14. Article 4, Burden of Proof: Directive 97/80/EC • National law and procedures • Complainant to prove a prima facie case • When does the trigger occur to shift the burden of proof? • Use of statistical information

15. Justifications/Exemptions for Direct Discrimination • Can it be justified? • Lustig-Prean and Beckett v UK • Timishev v Russia

16. Age Discrimination • Article 6(1) Employment Equality Directive Conditions: Context of national law, objectively and reasonably justified by a legitimate aim: Legitimate employment policy, labour market and vocational training objectives. Means: appropriate and necessary

17. Mangold • Tension between employment policy and age discrimination/fundamental right • Age Concern (UK)

18. Genuine Occupational Requirements • Where a job cannot be done effectively an actor to play Nelson Mandela? • Earlier approach: Where the sex of the worker is a determining factor: models for clothes, service care in households, nursing care, legal provisions. Advice work for ethnic/women’s/gay organisations?

19. Examples • Maternity, religion • Headscarf debate

20. Use of Proportionality • Johnston v Chief Constable RUC • Kreil v Germany • Sirdar v The Army Board and Secretary of State for Defence • Dory v Germany

21. New Approach • Article 4 (1) Racial Equality Directive • Article 2(6) Gender Employment Directive • Case – by case assessment

22. Indirect Discrimination • Use of neutral provision, practice, rule would persons in the protected class at a particular disadvantage compared with other persons unless the provision/practice/rule can be justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

23. Examples • Part-time work, length of service, working hours, qualifications, training • Bilka-Kaufhaus • Enderby

24. Proof • Statistical evidence • Finding the right pool of comparison • Reversal of the burden of proof

25. Objective Justification of Indirect Discrimination • Difference between Member State policy justifications and non-State justifications • Kachelmann

26. Harassment Sexual harassment: insults, remarks, inappropriate comments (dress, physique, age family situation,, condescending paternalist attitude undermining dignity, unwelcome invitations, explicit/implicit requests, threats, lascivious looks/gestures, unnecessary physical contact … ILO Committee of Experts 1988 General Survey

27. Broader coverage • Articles 2, 7, 9, 8 and 10 of Directive 2000/43/EC Seen as discrimination per se Moved beyond workplace sexual harassment to cover: • vocational guidance/training, • membership of trade unions, • social protection, • education, • access to, and supply of, goods and services (including housing).

28. Examples • “Hostile” working environment • Bullying • Blackmail • Psychological risks • Exposure to offensive material/language • France and Belgium: “moral harassment”

29. Who is Liable? • Problem of vicarious liability of the employer • Acts of third parties - for eg: patients and doctors/nurses, lecturers and students, employees and customers

30. Coleman • Mother of a disabled child • Subject to harassment by employer and co-workers on return from maternity leave, not given flexible working • Direct discrimination by connection to the disability