Evidence in the EU equality Directives: the burden of proof

1. Evidence in the EU equality Directives: the burden of proof TAIEX seminar 9-10 March 2011, Zagreb ‘The anti-discrimination Directives’ Dick Houtzager

2. Introduction • Development burden of proof • EC Directives • Claimant’s duty • Respondent’s duty • Conclusion

3. Introduction Awareness raising campaign, the Netherlands http://www.youtube.com/watch?v=BnVewsgmUFU&feature=related

4. Introduction Equal Treatment Commission Duties: • To promote and monitor compliance with equal treatment legislation • To give advice and information about equal treatment standards • To give a legal opinion about a specific situation concerning unequal treatment www.cgb.nl

5. Introduction Lisbon Treaty • Commitment to non-discrimination • Mainstreaming (art. 10 TFEU) • ‘may take appropriate action’ (art. 19 TFEU) • Directives 2000/43 and 2000/78 • Proposed Directive: under discussion

6. Developments burden of proof • Difficulties in proving discrimination: • Equal pay: issue of comparison • Danfoss and Enderby cases: burden of proof shifts to employer, • If no transparent pay system exists • If statistics indicate an adverse impact on women

7. EU Law Treaty on the functioning of the European Union (TFEU): • Article 19 TFEU: Council may take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. • Article 157 TFEU shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.

8. EC Directives Gender: • Directive 97/80/EC burden of proof sex discrimination amended by Directive 98/52/EC • Directive 2006/54/EC equal opportunities and equal treatment of men and women in employment and occupation (the Recast Directive)

9. EC Directives Other grounds of discrimination: • Directive 2000/43/EC: Racial Equality: ’race’ or ethnic origin • Directive 2000/78/EC: Framework Employment Directive: religion or belief, disability, age or sexual orientation.

10. Burden of Proof • ‘Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.’

11. Claimant’s duty • Establish facts from which a presumption of discrimination follows. • Direct discrimination: • Prove the facts or circumstances on the balance of probability: substantiate the facts, e.g. witness statements

12. Claimant’s duty • Indirect discrimination: • Preamble Directive: ‘by any means including on the basis of statistical evidence’ • Common knowledge, e.g. language requirement in job announcement • Statistical evidence: to conclude that the measure has a disparate impact, e.g. redlining in mortgage lending.

13. Respondent’s duty • If the burden is shifted, the respondent needs to prove there was no violation of the law: • present facts that explain and justify the measure, practice or incident • Feryn case [ECJ 2008]: show that ‘actual recruitment practice does not correspond to those statements’.

14. Conclusion • Previously: difficult to deliver proof of discrimination, as a result of difference in access to information • EU law introduced tools that create a balance between plaintiff and employer/service provider

15. d.houtzager@cgb.nl