Le istituzioni locali e il mondo associativo per la costruzione di una rete in materia di cooperazione, cultura di pace, integrazione multietnica, promozione dei diritti umani e della solidarietà fra i popoli.
Anti-Discrimination Law in Europe
In order to provide EU citizens with a common minimum level of protection against all forms of discrimination, the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC) were approved. In 2007 the European Commission financed the preparation and publication of the report “Developing Anti-Discrimination Law in Europe” presenting comparative analysis of anti-discrimination law in 25 EU countries and revealing to what extent they are in compliance with the Directives.
The grounds of discrimination - The Directives foresee the following grounds of discrimination: racial or ethnic origin, religion or belief, sexual orientation, disability and age. The EU law does not define the grounds, nor the implementation legislation of most Member States, which sometimes creates ambiguities.
What concerns the definition of “racial or ethnic origin ”, there are two main problems here. The first one is the use of “race” within anti-discrimination legislation. Notwithstanding the Racial Equality Directive states clearly that the EU rejects theories which attempt to determine the existence of separate human races, some Member States are strongly against the use of this term, for example, Finland and Sweden prefer “ethnic or national origin” and “ethnic belonging” correspondingly. The second problem is overlaps between “racial or ethnic origin” and other personal characteristics, such as nationality, language or religion. In the Netherlands, case-law has recognised the possibility for discrimination against Jews and, in certain circumstances, Muslims to be challenged as race discrimination. In the UK, discrimination against Sikhs or Jews has been accepted as discrimination on racial grounds (specifically, ethnic origin).
Most controversies around the implementation of the religion or belief provisions of the Employment Equality Directive are related, first, to a possibility for organisations such as churches and religious schools to make requirements concerning employees’ religion or belief; and second, to employee dress codes. Belgium, Denmark, France, Germany, the Netherlands, Sweden and the UK have already faced the cases on manifestation of religious beliefs through dress.
Implementation of the sexual orientation provisions faces difficulties while applying exception to employers with a religious ethos, as they may have negative attitude towards homosexuals, and in the cases regarding partners’ benefits guaranteed by national labour law (e.g. a pension entitlement for a surviving spouse). Furthermore, some countries, for instance Poland, do not tolerate homosexuals and bisexuals at all.
Definitions of one more ground of discrimination – disability – often can be found in social security legislation rather than in anti-discrimination law of Member States. The key condition for recognition of disability is that the impairment will last for a “long time”, though national legislations differ on its duration. For example, in Austria and Germany, an impairment should last for more than six months, in the UK – more than one year, while Cyprus and Sweden require the impairment to be indefinite. Despite the introduction by the Employment Equality Directive of such an important innovation as a duty on employers to provide reasonable accommodation to enable access to work for the disabled, there are still problems with its implementation. National law of Italy and Poland does not contain this concept at all; in Greece, Hungary, Latvia and Lithuania, the legal consequences of employer’s refusal to provide a reasonable accommodation are not clear.
At the same time, the Employment Equality Directive permits justification of age discrimination , although national practice may vary on its concrete forms. For example, there is no national compulsory retirement age in the Czech Republic, while Italy permits compulsory retirement by public and private employers at a specific age.
Definition of discrimination - The Directives identify four forms of prohibited discrimination: direct, indirect, harassment and instructions to discriminate.
The common definition of direct discrimination includes four elements: the need to demonstrate less favourable treatment; a requirement for a comparison with another person in a similar situation, but with different characteristics (e.g. ethnic origin, religion); the possibility to use a comparator from the past (e.g. a previous employee) or a hypothetical comparator; direct discrimination cannot be justified (the only exception here is age discrimination, though some specific exceptions are also possible, such as genuine occupational requirements or employers with a religious ethos). But, for example, Polish national law continues to permit the justification of direct discrimination.
Indirect discrimination is established through a comparison between the effect of the measure on persons of a particular ethnic origin, etc. and its impact on other persons, although there are national particularities. Polish law requires the measure to cause detriment for all or a significant number of employees belonging to the particular group of persons. In its turn, British legislation requires evidence that the measure placed at a disadvantage the individual complainant, as well as the group to which he or she belongs.
Harassment is defined in the Directives as unwanted conduct related to racial or ethnic origin, disability, etc. with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. But they do not clarify how to determine whether the conduct is violating or not. In Slovakia, the emphasis is placed on the perception of the victim, although a reasonableness standard may be considered. Another gap in the Directives is the responsibility of the employer for acts of harassment caused by other workers or by third parties, such as customers. In many states, employers bear responsibility for the actions of their workers to a varying degree. In Germany, employers must prevent discrimination in the workplace, including discrimination by third parties.
Even if national law does not state explicitly that instructions to discriminate are discrimination, general legal principles may be used. Due to this, in France, the refusal of an estate agent to rent accommodation to people with “foreign” surnames following instructions from the owner was qualified as discrimination.
Sometimes in order to ensure true equality, positive action is necessary. The Directives do not provide any strict rules on it, leaving room for case-law development. There was an interesting case in Sweden concerning a practice in Uppsala University to reserve 10% of places on their law programme for applicants with both parents born outside Sweden. Two students who were denied places on this basis, but who had better entry qualifications, successfully challenged this practice. The most common example of positive action is a quota system for the employment of disabled persons in Austria, Belgium (mostly public sector only), Cyprus, the Czech Republic, France, Germany, Greece, Italy, Lithuania, Luxembourg, Malta, Poland, Portugal, Slovenia and Spain. But, as a rule, employers are free to choose alternatives such as paying a fee or tax.
Although the report reveals some imperfections in both EU and national anti-discrimination legislation, as well as implementation problems, at the same time, it shows that the Member States have made significant progress paving the way for further improvements.
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