Associative Discrimination & Coleman: European Equality Concepts

1. DISCRIMINATION BY ASSOCIATION- the Coleman case (Equinet Legal Seminar- European Concepts of Equality- Role of the ECJ.) Paul Michell 30.6.09, Brussels pm@cloisters.com

2. Associative discrimination & Coleman • What is associative discrimination? • A  B (--- C)

3. Associative discrimination & Coleman European Provisions • Framework Directive 2000/78/EC (sexual orientation, age, religion or belief, or disability) • Directive 2000/43/EC (racial or ethnic origin) • Directives 2002/73/EC & 2006/54/EC (sex)

4. Associative discrimination & Coleman Is associative discrimination prohibited under EC law? Coleman v. Attridge Law (Case C‑303/06). [2008] IRLR 722. • C was principal carer for disabled son. • C was not disabled. • C claimed disability discrimination –less favourable treatment and harassment on grounds of her son’s disability.

5. Associative discrimination & Coleman Disability Disability Discrimination Act 1995 3A… A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person… 3B … a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of-- (a) violating the disabled person's dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

6. Associative discrimination & Coleman Interpolation? Pfeiffer and others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] 1 CMLR 1123, ECJ. “when it applies domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a Directive… national law is bound to interpret national law, so far as possible, in the light of the wording and the purpose of the Directive …”.

7. Associative discrimination & Coleman Advocate General Maduro’s Opinion: • Draws on the language of US constitutional law. • Centred on “human dignity and personal autonomy” as values at the core of the non-discrimination rule. • “One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them, but third persons who are closely associated with them”. • The “dignity or autonomy of a disabled person… is affected as much by being directly discriminated against as… by seeing someone else suffer discrimination merely by virtue of being associated with him”.

8. Associative discrimination & Coleman Showboat Entertainment Centre v. Owens[1984] 1 WLR 384. (Complainant dismissed for refusing to exclude all black customers from an entertainment centre.) J Browne-Wilkinson: “The only question in each case is whether the unfavourable treatment afforded to the claimant was caused by racial considerations”

9. Associative discrimination & Coleman Judge Peter Clark in Coleman[2007] IRLR 88 EAT: DDA “…is capable of interpretation, consistent with an interpretation of the Directive favourable to the Claimant, so as to include associative discrimination without distorting the words of the statute and consistent with the domestic Court’s responsibility to arrive at a conclusion which ensures that the Directive is fully effective, as Parliament presumably intended when passing the 2003 regulations…”

10. Associative discrimination & Coleman 3A(5) …A person directly discriminates against a disabled person or a person associated with a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person or a person associated with the disabled person less favourably than he treats or would treat a person not having that particular disability or association (as the case may be) whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person or the person associated with the disabled person. 3B(1) … a person subjects a disabled person or a person associated with a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of-- (a) violating the disabled person's dignity or the dignity of a person associated with a disabled person, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.(2) Conduct shall be regarded as having the effect specified in (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person or (as the case may be) a person associated with the disabled person, it should reasonably be considered as having that effect..

11. Associative discrimination & Coleman Interpolation? Ghaidan v. Godin-Mendoza [2004] AC 557. HL. Section 3(1) of the Human Rights Act 1998 …so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with Convention rights.

12. Associative discrimination& Coleman Lord Nicholls: “…the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is "possible", a court can modify the meaning, and hence the effect, of primary and secondary legislation…”

13. Associative discrimination & Coleman Equality Bill Section 4: “Protected characteristics” are age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex, and sexual orientation. Section 13(1): A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

14. Associative discrimination & Coleman Other issues arising from Coleman: Discrimination by perceived disability etc.

15. Associative discrimination & Coleman ECJ: 50: “Although … the person who is subject to direct discrimination on grounds of disability is not herself disabled…it is the disability which, according to Ms Coleman, is the ground for the less favourable treatment which she claims to have suffered…[The Framework Directive]…seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, [and] applies not to a particular category of person but by reference to the grounds mentioned in Article 1…”

16. Associative discrimination & Coleman English v. Sanderson Blinds[2008] EWCA Civ 1421. CA. Sexual Orientation 3(1)… a person (“A”) discriminates against another person (“B”) if, on grounds of sexual orientation, A treats B less favourably than he treats or would treat other persons…. 5(1) … a person (“A”) subjects another person (“B”) to harassment where, on grounds of sexual orientation, A engages in unwanted conduct which has the purpose or effect of (a) violating B’s dignity, or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

17. Associative discrimination & Coleman English v. Sanderson Blinds Laws LJ: “Domestic and European law alike vouchsafe that harassment or discrimination ‘on grounds of’ sexual orientation or race or disability is not limited to situations where the victim is mistreated because of his or her own condition…though no doubt that is the paradigm case. But the extended instances- Showboat here, Coleman in Luxembourg- are all connected with someone’s actual, perceived or assumed condition. They are all examples of harassment or discrimination ‘on grounds of’ (someone’s) sexual orientation, race or disability: that condition was, in each case, an operative cause of the mistreatment in question”.

18. Associative discrimination & Coleman English v. Sanderson Blinds Laws LJ: unwanted conduct relating to sexual orientation etc. “even if it does not touch or engage the possession of any of those characteristics by any person…would amount not to a Pandora’s box, but a Pandora’s attic of unpredictable prohibitions” Sedley LJ: “If, as is common ground, tormenting a man who is believed to be gay but is not amounts to unlawful harassment, the distance from there to tormenting a man who is being treated as if he were gay when he is not is barely perceptible. In both case the man’s sexual orientation, in both cases imaginary, is the basis, that is to say, the ground- of the harassment… the case…comes within the legislative intent, both domestically and under the Directive: the claimant was being harassed on grounds of sexual orientation.”

19. Associative discrimination & Coleman “Disability” Chacon Navas v. Eurest Colectividades SA [2006] ECR I- 66467: 42…the concept of "disability" for the purpose of Directive 2000/78 must… be given an autonomous and uniform interpretation. 43Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of "disability" must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life. 44 …by using the concept of "disability"…the legislature deliberately chose a term which differs from "sickness". The two concepts cannot therefore simply be treated as being the same. 45 … In order for the limitation to fall within the concept of "disability", it must therefore be probable that it will last for a long time. 46 There is nothing in Directive 2000/78 to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness.

20. Associative discrimination & Coleman The Americans with Disabilities Act 1990(section 12102) “an individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.”