Parliamentary Exchange and Dialogue Forum On Discrimination Nevşehir 10-11 September 2013

PARLIAMENTARY EXCHANGE AND DIALOGUE
DIALOGUE FORUM ON DISCRIMINATION
Anti-discrimination law in the EU : Legislation and implementation process
Isabelle Chopin

NEVSEHIR

10-11 September 2013

European Anti-discrimination legislation

• Directive 2000/43 implementing the principle of
equal treatment between persons irrespective
of racial or ethnic origin
Racial Equality Directive
• Directive 2000/78 establishing a general
framework for equal treatment in employment
and occupation
Employment Equality Directive
Dialogue Forum on Discrimination, Nevsehir, 9-10 September 2013

Aim: establish a frame to fight against discrimination based on racial or ethnic origin, religion or
belief, disability, age and sexual orientation, in order to implement the principle of equal
treatment (article 1)

Directive 2000/43 covers racial and ethnic discrimination in employment and other fields (social
protection, education, access to and supply of goods and services including housing)
Directive 2000/78 covers discrimination based on religion or belief, disability, age and sexual
orientation only in the employment field
Employment: Access to employment, self employment and occupation (including selection
criteria and recruitment conditions), access to vocational guidance and vocational training,
employment and working conditions, membership or involvement in worker’s , employer’s or
professional organisations
Personal scope
applies to all persons,
EU citizens and third country nationals
Legal and natural persons
both public and private sectors including public bodies


European Network of Independent Experts
in the non-Discrimination Field

www.non-discrimination.net
www.migpolgroup.com
•
•
•
•

wwwwww.migpolgroup.com
www.migpolgroup.com


Transposition


scope
Personal scope
• applies to all persons,
• EU citizens and third country nationals
• Legal and natural persons
• both public and private sectors including public bodies
Material scope
both directives:
employment and occupation (access to employment including self employment and
occupation, vocational training, working conditions and membership or involvement
in worker’s , employer’s or professional organisations
Material scope Racial Equality directive
-social protection (social security and healthcare, social advantages)
-education
- access to and supply of goods and services including housing


Grounds of discrimination
Race and ethnic origin, religion or belief, disability, sexual
orientation, age
(Multiple discrimination, assumed or associated
discrimination)
Directive does not define the grounds
Most Member States do not define the grounds
Most Member States have included all grounds of the
Directives in their anti-discrimination law
Many Member States have opted for broader list

Concepts
Direct discrimination

Indirect discrimination
Harassment

Instruction to discriminate
Reasonable accomodation


Direct discrimination

• Need to demonstrate less favourable treatment
• Requirement for a comparison with another person in
a similar situation but with different characteristics
• Possibility to use a comparator from the past or
hypothetical

• Cannot be justified


Indirect discrimination

• Apparently neutral criterion, provision or practice

• Particular disadvantage compared to other persons
(statistics)
• Intention to discriminate not required
• Can be justified (by legitimate aim and the means of
achieving that aim are appropriate and necessary)


Harassment and instruction
Harassment:
• Unwanted conduct
• Purpose or effect of :
violating the dignity of a person
creating intimidating, hostile, degrading, humiliating
or offensive environment
(gender law)
Instruction
Instruction to discriminate against persons with a protected
ground is deemed to be discrimination


Reasonable accommodation
• duty placed on employers
• to take appropriate measures, where needed in a
particular case,
• to enable a person with a disability to have access to,
participate in, or advance in employment, or to undergo
training,
• unless such measures would impose a disproportionate
burden on the employer’


Reasonable accommodation

No: Italy and Turkey
(Iceland not explicitely)

Yes: Sweden
Religion: Bulgaria, FYR of Macedonia,
Romania, Spain
Judicial interpretation: Austria, Germany

Exceptions to equal treatment

• Genuine and determining occupational
requirement
• Employers with an ethos based on religion and
belief
• Armed forces and other specific occupations
• Nationality
• Family benefits
• Public security, public order, criminal offences,
protection of health and protection of the rights
and freedoms of others
• Positive action

Remedies and enforcement

JJudicial and administrative procedures
Judicial and administrative procedures
Legal standing and associations

Burden of proof
Burden of proof
Victimisation
Victimisation
Sanctions and remedies
udicial and administrative procedures
Sanctions and remedies


Collective redress

Actio popularis is permitted by national law for
discrimination cases in 16 countries (Austria, Bulgaria,
Croatia, France, the FYR of Macedonia, Germany,
Hungary, Liechtenstein, Malta, the Netherlands,
Norway, Portugal, Romania, Slovakia, Spain and Turkey

Class actions are permitted by law for discrimination cases in
12 countries: Bulgaria, Denmark, the FYR of Macedonia,
Hungary, Iceland, Malta, the Netherlands, Norway,
Poland, Portugal, Slovakia and Slovenia.
Judicial interpretation is required in two countries: Italy and
Lithuania.


Duties of the State

Designation of a specialised body (RED)
Dissemination of information
Social and civil dialogue

Monitoring

Specialised Body

• independent assistance to victims
• conducting independent surveys

• publishing independent reports
• making recommendations


Specialised Bodies



No = Austrian Equal Treatment Commission, Cyprus (although in practice both
the Equality authority and the Anti-Discrimination Authority do inform victims of
their rights), the Estonian Chancellor of Justice (that nevertheless does so in
practice), the three Greek bodies, Lithuania, the Dutch Equal Treatment
Commission, Norway and Spain
Interpretation required: Bulgaria and Poland

Specialised bodies

No: Estonian Chancellor of Justice, the Greek Labour
Inspectorate and Equal Treatment Committee, Slovenia and
Spain
Judicial interpretation: Estonia


Specialised bodies

No: Estonian Chancellor of Justice, the Greek Labour Inspectorate
and Equal Treatment Committee, Slovenia and Spain
Judicial interpretation: Estonia


Specialised bodies

No: Romania (although does so in practice), Spain, Sweden
and the two bodies in the United Kingdom


Specialised Bodies

Yes: Austria , Bulgaria, Denmark, Estonia , Hungary, Ireland,
Lithuania, the Netherlands , Norway and Romania



Yes: Bulgarian, Danish, Estonian, Hungarian, Irish, Lithuanian and
Romanian
No: Austria, the Netherlands and Norway


Best Practices
• One single anti-discrimination Act
• Protection for grounds of religion and belief, disability, age and sexual
orientation, outside the employment field
• Effective and sufficient protection outside employment
• Effective and sufficient protection regarding access to and supply of
goods and services and education
• Clear definitions
• Protection against victimisation
• Protection against discrimination by association or assumption
•
•
•
•

Shift of the burden of proof
Adequate sanctions, compensation
Legal standing for organisations, trade unions, individuals
Collective redress

Best Practices
• Effective and efficient Specialised body
• With adequate resources
• Performing independent functions
• Dissemination of information
• Social dialogue
• Cooperation and consultation with civil society organisations
• Positive action measures
• Accompanying measures and programmes
• positive duty on the autorities to promote equality


Bad practices
• Complex legal framework and unclear procedures
• Legal patchwork
• Lack of protection against racial, ethnic and religious discrimination in
areas outside employment
• Lack of protection of all employees and self employed specially in the
public sector
• No special provision regarding access to and supply of goods and
services
• Lack of express prohibition of segregation in schools
• Lack of protection against victimisation outside the employment field


Bad practices
• Inconsistent definition of the shift of the burden of proof
• Lack of adequate sanctions or of sanctions at all
• Lack of effective programs enabling vulnerable groups accessing
legal system and preventing the repetition of discriminatory acts
• No real legal standing for organisations and lack of individual
standing
• Bad understanding from judges and lawyers of concepts,
identification of cases, collection of evidence
• Lack of mandate and effective means for the specialised body
• Cuts in funding affect effective support (legal aid, legal action from
Equality Bodies)
• Lack of promotion of national or ethnic, cultural, religious and
linguistic identity of minorities
• Lack of accompanying measures and policies to the law

European Network of independent experts in the non-discrimination field


Slide title goes here
Migration Policy Group
http://www.migpolgroup.com
European Network of independent experts in the field of nondiscrimination
http://www.non-discrimination.net
European Commission
http://ec.europa.eu/employment_social/aneval/legnet_en.htm
Fundamental Rights Agency
http://fra.europa.eu
European Commission against Racism and Intolerance
www.coe.int/T/E/human_rights/Ecri


Thank you for your attention

www.migpolgroup.com

Parliamentary Exchange and Dialogue Forum On Discrimination Nevşehir 10-11 September 2013

More Related Content

Similar to Parliamentary Exchange and Dialogue Forum On Discrimination Nevşehir 10-11 September 2013 (20)

More from Parliamentary Exchange and Dialogue (20)

Recently uploaded (20)

Parliamentary Exchange and Dialogue Forum On Discrimination Nevşehir 10-11 September 2013