parliamentary exchange and dialogue forum on discrimination nevşehir 10-11 september 2013

NEVSEHIR10-11 September 2013

PARLIAMENTARY EXCHANGE AND DIALOGUE

DIALOGUE FORUM ON DISCRIMINATION

Anti-discrimination law in the EU : Legislation and implementation process

Isabelle Chopin

European Anti-discrimination legislation

Dialogue Forum on Discrimination, Nevsehir, 9-10 September 2013

• 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



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 fieldEmployment: 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 scopeapplies to all persons, EU citizens and third country nationalsLegal and natural personsboth 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.non-discrimination.net• www.migpolgroup.com• www.non-discrimination.net

http://www.non-discrimination.net/

http://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 scopeboth 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)

InstructionInstruction 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 Yes: Sweden (Iceland not explicitely) 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

Legal standing and associations

Burden of proof

Victimisation

Sanctions and remediesudicial and administrative procedures


Judicial and administrative procedures


Burden of proof

Victimisation

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 SpainInterpretation required: Bulgaria and Poland

Specialised bodies


No: Estonian Chancellor of Justice, the Greek Labour Inspectorate and Equal Treatment Committee, Slovenia and SpainJudicial 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


http://www.migpolgroup.com/publications_detail.php?id=341

Slide title goes here


Migration Policy Grouphttp://www.migpolgroup.com

European Network of independent experts in the field of non-discriminationhttp://www.non-discrimination.net

European Commissionhttp://ec.europa.eu/employment_social/aneval/legnet_en.htm

Fundamental Rights Agencyhttp://fra.europa.eu

European Commission against Racism and Intolerancewww.coe.int/T/E/human_rights/Ecri





http://ec.europa.eu/employment_social/aneval/legnet_en.htm

http://ec.europa.eu/employment_social/aneval/legnet_en.htm

http://fra.europa.eu/

http://fra.europa.eu/

http://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

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