European Union Directives on the Prohibition of Discrimination
Directives 2000/43/EC & 2000/78/EC
EU directives on the prohibition of discrimination
According to Article 2 of the Treaty of the European Union (TEU), the principle of non-discrimination is one of the values conditioning a State's accession to the European Union. Article 13 TEU states that “the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.
Moreover, the Charter of Fundamental Rights of the European Union (TFEU), proclaimed in Nice in December 2000, in Article 21, prohibits “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”, as well as discrimination on ground of nationality, “within the scope of the Treaty and without prejudice to any other specific provisions”.
Before 2000, non-discrimination legislation within the EU only prohibited discrimination on the ground of sex, in the field of employment and social security. In 2000, a package of measures was adopted by the EU, including a directive “establishing a general framework for equal treatment in employment and occupation” and another one aiming at ensuring “equal treatment between persons irrespective of racial or ethnic origin” as well as a an action programme to combat discrimination (2001-2006).
Thus, the legislation has evolved, to not only prohibit discrimination, but to protect potential victims against it.
The employment equality directive establishes a “general framework for combating discrimination”, based on the principle of equal treatment. It prohibits any discrimination based on religion or belief, disability, age or sexual orientation. This general legislation applies to employment and occupation. It excludes sex discrimination, which is covered by directive 76/207/EEC, and racial and ethnic discrimination, which is the subject of the racial equality directive, adopted in 2000. Its scope is broader and does not only cover employment, but also social assistance and security and access to supply of goods and services.
1. The European notion of discrimination
Both employment and racial equality directives refer to direct and indirect discrimination, as well as harassment and instruction to discriminate. The legislation specifies a limitative list of grounds for a treatment to be deemed discriminatory.
1.1 The definition of discrimination
Direct discrimination involves a lessfavourable treatment of a person or a group than another one in a comparable situation, on a ground covered by the directive (either racial or ethnical or religion, belief, disability, age, sexual orientation) (article 1 of both directives). Thus, there is to prove a less favourable treatment. It can be an admission refusal to a shop or restaurant, receiving a lower pay, having a lower or higher retirement age… It involves a comparator, to someone in a similar situation : the main difference between these two persons is the “protected ground” : they have different religion, origin, age… Then there is to prove a causal link between this lessfavourable treatment and the protected ground: the treatment results from such a ground, and would not have existed without a difference of age, religion, origin, sexual orientation, disability…
The European Court of Justice has a wide interpretation of direct discrimination, accepting that the person who is subjected to this discrimination is not herself concerned with the protected ground, if this ground is the reason of the less favourable treatment. In the Coleman Case, a mother has been refused schedule flexibility by her employer, contrary to her female colleagues, because her son was disabled. The Court admitted that it was a direct discrimination, even if she was not disabled herself.
Indirect discrimination can result of a similar treatment of two persons being in different situations. The discrimination arises from the effect, and not from the treatment which does not differ. It occurs when a common and apparently neutral provision, practice or criterion applicable to everybody has lessfavourable effect on a “protected group”. This group, defined by its religion, origin, disability, age or sexual orientation, suffers negative effects compared to the general population due to this treatment. There is to refer to a comparator, just like in the case of a direct discrimination.
An advertisement for a job as a cleaner can be discriminatory if it requires the applicant to speak fluently English, provided language skills are not necessary to perform the job.
The directives consider harassment to be discriminatory if the unwanted conduct is related to a protected ground and if its purpose or effect is to “violate the dignity of a person” and/or to create “an intimidating, hostile, degrading, humiliating or offensive environment”. As a kind of direct discrimination, harassment is expressly referred to by the directive to highlight this particular form of discrimination, more than to create a separate concept of discrimination. In most of the cases, questions of fact are dealt with by national jurisdictions. Besides, the directives mention Member States' own definition of harassment, which often clarifies this notion.
Instruction to discriminate on protected grounds is deemed to constitute discrimination, even if no definition is provided by the directives. The European Court of Justice will have to clarify this concept, especially whether it has to be a mandatory instruction or if incitement or expressed preference to treat lessfavourably someone on protected grounds is sufficient to constitute discrimination.
1.2 The grounds of discrimination
The directives set limitative lists of “protected ground” of a less favourabletreatment. The general directive establishing a framework for equal treatment in employment and occupation refers to religion or belief, age, disability, sexual orientation, while the racial equality directive deals with racial and ethnic origin. The directives do not provide any definition of these grounds, but some guidance can be found in European and national case law.
The Racial Equality Directive protects against discrimination on the ground of racial or ethnic origin. These terms are ambiguous and may cover aspects such as language, ancestry and skin colour.
Moreover, there is a debate on the use of the word “racial”. As a matter of fact, the directive itself tackles this issue, stating that the EU “rejects theories which attempt to determine the existence of separate human races”. The use of the term “racial origin” in this directive does not imply an acceptance of such theories”. However, including the word “race” can be received as a legitimization of racial categorization. A reference to “ethnic affiliation” or “ethnic or national origin” could have been more consensual. Another problem can rise through religious discrimination, which falls under the scope of the Employment Equality Directive. This boundary issue can be an important issue, because the scope of the Racial Equality Directive is broader than that of Employment Equality Directive. Thus, taking into account this ground in the Racial Employment Directive also would provide a wider protection to the victims of such discrimination. According to the ECtHR, religion and ethnicity are hardly separable: “ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language or cultural and traditional origins and backgrounds”. It can be expected that the Court of Justice of the EU opts for a comparable solution, in particular because it could be very difficult to distinguish ethnicity and religion, ethnicity being related to several social characteristics.
The Employment Equality Directive prohibits discrimination on the grounds of religion or belief, disability, age, and sexual orientation.
Neither the directive nor Member States give a comprehensive definition of religion or belief. However, in many states, some non-binding guidance is given through court rulings and explanatory documentation accompanying legislation, which denotes diversified approaches to these concepts. It is accepted that belief is much broader than religion, but according to ECtHR case law, it must fulfill a certain level of seriousness and coherency, and be distinguished from opinion. In addition, atheist and agnostics, in other words, people who do not practice any religion are also protected under the ECHR.
Disability has been clearly defined by the European Court of Justice, in its case Sonia Chacon Navas of 2006, stating that “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.” The Court distinguishes “disability”, which lasts for “a long time” from “sickness”, to which no protection is granted. This requirement can be interpreted in various ways among Member States: for example, the United Kingdom requires an impairment lasting at least 12 months, while Austria and Germany require only 6 months. This definition does not cover future or assumed disabilities, contrary to some national legislation. It does not refer to a disability that does not exist anymore either, or to chronic disease. Therefore, this definition might evolve in the future, to face that kind of situations arising before the Court.
The ECJ will probably be guided by the definition of disability given by the United Nations Convention on the Rights of Persons with Disabilities (UN CRPD), the EU being party to this convention. It will have to follow its wide definition, in article 1, stipulating those persons disabled “who have long term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.
The Employment Equality Directive sets a positive requirement for employers to adapt the workplace to the needs of the disabled and provide them with “reasonable accommodation”. The directive, in other words, requires the employers to stop being blinded by the barriers involved by a situation of disability, and start focusing on the abilities, skills, knowledge of the person. Rather than being blocked by the daily life difficulties, employers are asked to provide reasonable arrangements to allow disabled persons to have access to equal employment opportunities. These arrangements may be installing disabled toilets, a lift, a ramp permitting wheelchair access. This provision creates a “special treatment” in favor of the disabled, and involves expenses that employers can be reluctant to make, even if their duty is limited not to constitute a “disproportionate burden” as regard to financial and other costs entailed compared to the resources of the company or organization and the possibility of public funding. Therefore, careful consideration must be given to the implementation of this provision, which is essential for the equal treatment of the disabled. Legislation in Member States is not uniform, some providing only a basic duty, with no specific details related to its implementation (such as Lithuania), while others have adopted a comprehensive guidance on the application of such duty (United Kingdom). Moreover, there are many ambiguities surrounding the fact that an employer's failure to provide such accommodation may result as an unlawful discrimination.
Age is an objective and natural characteristic which does not require any specific definition. It includes all ages, the young as well as the old. Some national legislation limit the scope of this directive to people over 18 (United Kingdom), or “above the maximum age to at which a person is legally obliged to attend school” (Denmark). The directive permits justification for both direct and indirect discrimination in Article 6. Indeed, it is the only ground that can justify direct discrimination in some instances. Many Member States have incorporated such exceptions in national legislation, which leads to a lack of harmonization in this field. Laws promoting employment of young or old are very common, and can be discriminatory. Article 6 of the directive allow such differences in treatment if “they are objectively and reasonably justified by a legitimate aim”, that is to say proportionate and necessary, which includes employment, labour market and vocational training policies. Moreover, mandatory retirement ages could be considered as direct discrimination, but the directive expressly excludes this kind of legislation from its scope.
The ECJ seems to have restricted the scope of these exceptions in the 2005 Mangold case, later confirmed in 2010 Kucukdeveci case, reducing in this way the risks of legal uncertainty. In Mangold the court stated that the principle of non-discrimination on the grounds of age was a general principle of law, meaning that it has to be respected independently of the directive.
Sexual orientation refers to discrimination on grounds of homosexuality, bisexuality, and heterosexuality. Very few cases are brought before courts, probably because of the wish to remain confidential and of the deterrence implied by the unfriendly political climate in some states such and Poland, Macedonia.
1.3 Justifications for a lessfavourable treatment
Differential treatment can be justified either on specific grounds or the general clause which only concerns indirect discrimination.
1.3.1 Specific justifications
These clauses allow differential treatment in certain circumstances.
“Genuine and determining occupational requirements” can constitute a justification of a lessfavourable treatment on the basis of any of the protected grounds, provided that “the objective is legitimate and the requirement is proportionate”. This applies in particular to artistic professions such as actors and singers whereby special requirements of age, skin colour and physical appearance may be justified in order to fit a specific role.
A specific provision of the Employment Directive deals with the particular case of genuine occupational requirements by armed forces and police. It explicitly permits Member States to exempt the application of the Directive to the armed forces as far as discrimination on grounds of disability and age is concerned, given that those sectors are highly based on physical abilities.
The Employment Directive states that “in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person's religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person's religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation's ethos”. Religious organisations are thus allowed to require the fulfilment of certain conditions related to their beliefs, and can ask their employee to be loyal towards these beliefs.
For example, a religious organisation may refuse to hire female priests if it is inadequate to their beliefs. Moreover, employers can expect their employees to be loyal to the organization's ethos.
Two kinds of specific justifications may also result from an employment policy creating a different treatment on the ground of age. First, Article 6.1 of the Employment Directive states that “Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the contest of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving these aims are appropriate and necessary”. Member States can therefore enforce policies favouring the employment of young or old people, or even impose a mandatory retirement age aiming at fighting against unemployment, as long as it is necessary and proportionate.
Secondly, Article 6.2 states that Member States may differentiate on grounds of age when it comes to the enjoyment of social security schemes, in particular for retirement pensions, without fulfilling the requirement of proportionality.
1.3.2 General justification
General justification is only applicable to indirect discrimination. Articles 2.2(b) of both directives permit indirect discrimination on the basis of any of the protected grounds provided it is pursued by a “legitimate aim” and achieved with “appropriate and necessary” means. The term “necessary” refers to the requirement of proportionality.
2 The scope of application of the prohibition of discrimination
The two directives have a limited scope of application, although the Racial Directive has a much broader scope than the Employment Directive, which is restricted to the field of employment.
2.1. Personal scope of application
Both directives are applicable to all persons, irrespective of whether they are nationals of EU third countries or Member States. The protection offered by the directives is thus not conditioned by nationality or residence. However, they do contain various exceptions when it comes to third country nationals. Moreover, the directives do not concern discrimination on grounds of nationality which is regulated by the Free Movement Directive, and excludes of its scope the non-EU nationals. Both directives do not create any rights to equal treatment for third country nationals concerning conditions of entry and residence and access to employment and occupation. This does not mean these persons are excluded from any kind of protection against discrimination, and Member States may provide them with a morefavourable protection than stipulated in the directives. In addition, third country nationals can benefit from the protection provided by both directives as soon as they are considered “long-term residents”, which requires a period of five years of lawful residence.
2.2 Material scope of application
The Racial Equality Directive has a broader scope than the Employment Equality Directive. The former is applicable to conditions for access employment and working conditions, vocational guidance and training, but also to social protection, education and access to supply of goods and services, including housing, while the latter only refers to employment. Thus, the specific directive, focusing on the specific ground of racial and ethnic origin has a broader scope of application than the one aiming at fighting discrimination in general.
The ECJ has given a broad interpretation to these three notions of employment, welfare system and supply of goods and services.
Both directives are applicable within the scope of employment, which includes access to employment and conditions of employment, as well as access to vocational guidance and training and to worker and employer organizations.
Access to employment has been interpreted broadly by the ECJ: it does not only refer to the conditions existing before an employment relationship comes into being, but also to considerations governing the person's decision to accept or deny a job offer, such as the granting of state benefit.
According to the ECJ, conditions of employment such as dismissal and pay, concern all conditions that are related to the employment relationship. In the Meyers case, a state benefit depended on the engagement in a remunerative work. This requirement was sufficient to establish a link with conditions of employment. Dismissal covers all means of terminating a working contract, including a compulsory retirement age or voluntary redundancy. The ECJ has also a broad vision on payment, admitting all advantages stemming from a job, such as Christmas bonuses, concessionary rail travel, etc.
The definition of vocational guidance and training set by the Court in the Gravier case is also very broad: it concerns “any form of education which prepares for a qualification for a particular profession, trade or employment or which provides the necessary training and skills for such a profession, trade or employment is vocational training, whatever the age and the level of training of the pupils or students, and even if the training programme includes an element of general education.” A university degree, even if not intended to prepare for a specific job, can thus be deemed as vocational training and fall under the scope of the directive, as long as it provides skills or knowledge required within a particular profession, as it is the case for veterinary studies.
The directive aims at preventing discrimination on access and membership to worker and employers organizations, but also concerning the benefits they provide for members.
2.2.2 Welfare system
The Racial Equality Directive applies to “social protection, including social security and healthcare”, to “social advantages” and “education”. The ECJ will have to clarify this area, since the directive provides no definition. Presumably it covers any benefit provided by a state, as the wording of the directive indicates that social protection is broader than social security. The directive also protects against discrimination in healthcare, probably both provided by public or private bodies.
The question whether a refusal to provide a person an insurance policy on racial or ethnic grounds is related to social protection or to access to goods and services remains unclear.
2.2.3 Supply of goods and services including housing
The Racial Equality Directive provides a protection against discrimination on the ground of racial or ethnic origin in the field of goods and services, including housing. Article 57 of the Treaty on the Functioning of the European Union gives a broad definition of the notion of services, provided they are supplied in return for remuneration and out of an entire personal scope. They may include, among others, services of a “commercial” and “industrial nature”, “activities of the craftsmen” and of “professions”.
The guarantees granted by the directive also apply expressly to housing. However, the directive does not give a definition of this notion. Clues can be found in international human rights law, especially in the European Convention on Human Rights which sets the right to respect of one's house in Article 8. The UN Committee on Economic, Social and Cultural rights requires the fulfillment of several criteria for adequate accommodation: it must be affordable, accessible to disadvantaged persons (the elderly, children, disabled), protected against rain, cold and wind, have a location allowing access to work opportunities, schools and services and be connected to sanitarian services.
The European Court of Human Rights has given a broad interpretation to the notion of housing, which the ECJ may follow. It includes both immovable and mobile homes, such as caravans and trailers, even if their location is illegal.
The directives offer victims procedural protection against discrimination, which occurs during the trial. This is the question of the burden of proof and the creation of bodies promoting equal treatment and protection against adverse treatment.
3.1 Non-judicial guarantees
To ensure that victims are compensated, the Racial Equality Directive requires Member States to create bodies for the promotion of equal treatment, in charge of conducting surveys and publish reports and recommendations related to discrimination. Above all, they have a duty to provide “independent assistance to victims of discrimination in pursuing their complaints about discrimination. They can be assisted in making complaints, avoiding deterrence resulting from possible reluctance to go to the police, especially when a complaint is directed against the police services. The Employment Equality Directive requires Member States to secure that associations and legal entities having a legitimate interest in ensuring compliance with the provisions of the directive may engage any procedure for the enforcement of its provisions, either on behalf or in support of the complainant. The directive also encourages Member States to promote dialogue between social partners and to foster the enforcement of the equal treatment principle.
Once a discriminatory conduct has been acknowledged by a Court, Member States are required to introduce in their legal systems measures to avoid adverse reactions to complaints or proceedings. This protection must be ensured against punitive reactions, in particular concerning discriminatory dismissals: the acknowledgement of a discriminatory dismissal can give a right to be re-admitted in the former occupation, which involves a defense against any hierarchical pressure or deterioration of working conditions.
Victims must be given access to remedies to dispute any discriminatory conduct they have suffered. Member States are bound to ensure judicial or administrative remedies to all persons, including means based on conciliation, even if the alleged discriminatory conduct has come to an end.
The main guarantee for the victims lies in the rules governing the burden of proof of a discriminatory conduct. Usually, the burden of proof is born by the claimant. But it can be very difficult to prove the intent to discriminate; therefore the claimant only has to bring sufficient evidence to suggest that he may have suffered a discriminatory treatment. Both directives state that the alleged victim must prove “facts from which it may be presumed that there has been direct or indirect discrimination”, and then the respondent shall “prove that there has been no breach of the principle of equal treatment”. As a consequence, bringing evidence of a possible unfavourable treatment raises a presumption of discrimination. The alleged perpetrator, according to the rule of reversed burden of proof, will have to rebut this presumption, either by proving that the claimant is not in a similar situation than the “comparator” who has benefited a more-favourable treatment, or to prove that the treatment is not based on one of the protected ground (disability, age, sexual orientation, religion, racial or ethnic origin), but on another objective difference. In case of failure in rebutting the evidence, the perpetrator will have to raise a defense based on legal justifications to a less-favourable treatment; either specific or general, showing that the impugned conduct was proportional.
The acceptable kinds of evidence are established by national law, and Member States can decide not to apply this rule in proceedings where the courts have an inquisitive role. Above all, this reverse burden of proof cannot be used in criminal proceedings (hate crime for example), in violation of the principle of presumption of innocence, set by the European Convention on Human Rights.
It is sufficient to establish unequal treatment based on a protected ground, which cannot be justified. The Court does not require evidence in form of precedent or intention to differentiate. The test is objective and the court focuses on the impact, that there is indeed a less-favourable treatment, whatever the motive of the perpetrator is. The perpetrator cannot rebut the presumption by showing his good faith. To finish, according to the ECJ, it is not necessary to prove that there is an identifiable victim: in the Feryn case, the ECJ stated that “public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory”. No victim has been identified, but it was clear that the advertising discriminatory, and could deter some people to apply.
To ensure the correct application of the directives Member States have to “lay down the rules on sanctions applicable to infringements” of national provisions adopted to implement the directives. These sanctions must be “effective, proportionate and dissuasive”. This may include dissuasive, compensatory, punitive or preventive sanctions. Compensation paid to victim may include damages for past and future loss, for injury to feelings, personal injury as well as psychiatric damage.
Racial Equality Directive
· The directive protects against a disadvantage caused on the basis of the racial or ethnic origin of a person.
· Discrimination can be direct or indirect. Direct discrimination is characterized by an unequal treatment whereas indirect discrimination results from a differential impact.
· Discrimination can also result from harassment or instruction to discriminate. Harassment involves an unwanted conduct, having for purpose or effect to violate the dignity of a person on grounds of racial or ethnic origin.
· Racial or ethnic origin may include language, colour, descent or religion, but the ECJ must clarify this issue.
· Discrimination can be legal if its author proves that it falls under the general justification (only applicable to indirect discrimination) or a specific justification (both direct and indirect discrimination).
· The general justification requires that the unequal treatment pursues a legitimate aim, and that the means employed to reach it are necessary and proportionate (there is no less harmful mean to fulfil a comparable result).
· Specific justification can result from a “genuine and determining occupational requirement”, which often occurs in the field of artistic professions.
· The directive is applicable to all persons. But there are many exceptions concerning third country nationals.
· The directive has a broad scope of application: it protects against discrimination in the field of employment, social protection and advantages, and supply of goods and services, including housing.
· The directive provides procedural guarantees, both non-judicial and judicial. The directive requires Member States to create bodies for the promotion of equal treatment, in charge of conducting surveys, drafting reports, and assisting victims through their complaints.
· Regarding judicial guarantees, Member States are bound to ensure that victims have access to remedies. Moreover, the burden of proof is reversed: the victim has to prove the facts, the author that the unequal treatment was not based on a protected ground. This is rule is not applicable in criminal proceedings.
· Member States are in charge of establishing “effective, proportionate and dissuasive” sanctions, including compensation to the victim.
Employment Equality Directive
· This directive prohibits both direct and indirect discrimination, as well as harassment and instruction to discriminate.
· The protected grounds are: religion or belief, disability, age or sexual orientation.
· The directive requires employers to provide disabled persons with reasonable accommodation (a lift, a ramp, toilets for disabled).
· The general justification is admissible under the same conditions as racial discrimination.
· Specific justification can result from “genuine and determining occupational requirements”, with a particular stress on armed forces. Religious organisations are allowed to require the fulfilment of certain conditions related to their beliefs. Moreover, discrimination on grounds of age can be allowed concerning employment policy, if the measures are proportionate. Discrimination on the ground of age to access security schemes is also admissible, with no requirement to satisfy the test of proportionality.
· The directive is applicable to all persons. But there are many exceptions concerning third country nationals.
· The Directive has a narrow scope of application compared to the Racial Equality Directive. This one is only applicable in the field of employment.
· Member States have to promote social dialogue and ensure that associations may assist victims through proceedings.
· The burden of proof is reversed in the same manner as under the Racial Equality Directive.
· Member States are in charge of establishing “effective, proportionate and dissuasive” sanctions, including compensation to the victim.