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European Equality Law Network

European network of legal experts in gender equality and non-discrimination

2011 Seminar - Approaches to equality and non-discrimination legislation inside and outside the EU

On 4 October 2011 the fourth yearly seminar of the Network was organised in cooperation with the European Network of Legal Experts in the field of Gender Equality (managed by the Faculty of Law at Utrecht University). The seminar attracted 158 participants, representatives of the European Commission, EU Member States governments, Equality Bodies and European NGOs. The feedback from the participants, collected through a satisfaction survey PDF (76 kB) resulted in a good rating.

The objective of the Legal Seminar was to provide the participants with an opportunity to exchange views on the transposition and implementation of EU equality and anti-discrimination Directives, to look into legal systems of third countries and to share practices and experiences. The seminar brought together a number of high level academics from across and outside the European Union. Current legal developments and future prospects in the area of non-discrimination and gender equality were widely discussed. The programme PDF (90 kB) of the seminar included both plenary sessions and parallel workshops.

The keynote speech, addressed by Sandra Fredman to introduce the 2011 Legal Seminar, examined various anti-discrimination legislation from a comparative point of view, particularly in Canada, India, South Africa and the USA. Comparative law is of great value, particularly in the equality field where there is increasing cross-pollination across different jurisdictions.Sandra Fredman also authored a thematic report for the European Network of Legal Experts in the non-discrimination field, to be published in early 2012. The aim of the report is to compare and contrast anti-discrimination and equality laws in the USA, Canada, South Africa and India, with a view to inform future development of EU anti-discrimination laws.

Presentation Prof. Sandy Fredman:

Workshop - Positive action

The following issues were discussed:

  • Could you provide some examples of positive action measures in employment in your country that have been successful in your view? Which factors were most relevant for this success?
  • Do you consider (national and/or EU) legislative initiatives on women quotas necessary to reach gender balance on company boards?

During the workshop, importance with regard to the terminology in use was primarily emphasised. Such terminology as ‘positive action’ should always be preferred to ‘positive discrimination’.

The workshop also acknowledged that affirmative action does not constitute an exception to the principle of non-discrimination but rather that the principle itself establishes limits to affirmative action. Discussions mainly focused on area of employment and under-representation. As shown in the report published by the European Network of Legal Experts in the field of Gender Equality, a wide range of systems and approaches exist. Pro-active measures such as equality plans with target-oriented measures or encouraging measures (like rewards for companies with gender-balanced programmes) are applicable to both private and public sectors. Mandatory measures are rare. Quotas in company boards were also discussed as 8 Member States (AU, BE, FR, EL, IS, IT, NL, NO) provide for such measures. In Austria and Greece, this applies to State-controlled companies only whereas in Germany it is under discussion.

Workshop - Multiple discrimination

The following issues were discussed:

  • Did you come across examples in your legal practice of ‘additive’ or’ compound’ discrimination and ‘intersectionality’? If so, how were these cases addressed in court and/or by an equality body?
  • Does, in your view, the notion of multiple discrimination provide a useful tool and have added value in order to address in courts forms of discrimination involving more than one ground of discrimination only?

There is a huge gap between the interest shown towards multiple discrimination and the legal responses, which have been very poor. The workshop highlighted the fact that the categories that are protected under anti-discrimination law are not always followed in the theoretical discourse. When it comes to the legal responses to the problem, EU ‘hard’ law does not clearly address the problem whereas the Court of Justice of the European Union has not taken the opportunity to address multiple discrimination in cases where it could have done so. Against this background, the long-lasting US experience on multiple discrimination enriched the debate, even if the success rate of actions on multiple discrimination is very low. Most cases have failed to provide remedies to victims. Issues around the differential material scope of the EU anti-discrimination and equality directives, combined with the difficulties related to evidence, such as comparator problem, may explain the failure of multiple discrimination cases. The workshop concluded that more effective implementation and more awareness-raising are necessary to adequately address the issue of multiple discrimination. This would require training of judges, equality bodies, members of the legal profession, etc. EU ‘soft law’ and guidelines were proposed to provide a better understanding of the issue.

Workshop - Religious discrimination

The following issues were discussed:

  • Can you provide some examples of religious discrimination that have been addressed by courts in your country?
  • Would you be in favour of some differentiation in levels of scrutiny by courts between indirect discrimination based on religion, on the one hand, and sex and race/ethnic origin on the other?
  • The European Court of Human Rights considers that wearing a headscarf is ‘hard to square’ with notions of sex equality. Do you agree with this view?

The workshop covered the issue of intersection between religious discrimination and racial or ethnic origin and gender. The way discrimination claims based on religion that intersect with gender or race are dealt with, is affected by the fact that various anti-discrimination and equality directives covering different grounds of discrimination and with differentiated material scope co-exist. A case regarding a public school teacher who was not permitted to wear a headscarf within school premises, was discussed. Comparative research reveals that results greatly differ depending on the ground used by the plaintiff. In such a case, the teacher could either base her claim on indirect discrimination on grounds of religion or indirect discrimination on grounds of sex. In courts, practice shows that reviews of indirect discrimination on grounds of sex are stricter than indirect discrimination on grounds of religion. Another example concerning a Jewish school which refused admission of a boy whose mother was not born as Jewish, was brought forward. The court concluded to direct discrimination on grounds of race, with no justification allowed. The outcome might have been totally different if it was considered from the point of view of religious discrimination. The workshop concluded by asking whether EU directives provide sufficient instructions to courts to resolve cases on religious discrimination.

Workshop - Burden of proof

The following issues were discussed:

  • Should the prima facie rule be redesigned in such a way that it would no longer constitute an obstacle to victims and their representatives bringing cases to court.
  • Countries outside the EU, such as Australia, have traditionally looked at EU practice but are there valid models or alternatives for the EU to get its own inspiration from?

Proof and evidence are crucial in anti-discrimination cases but the position of victims needs to be improved to make anti-discrimination law work in practice. The workshop heavily discussed the usefulness of the shift of burden of proof as established by EU law. The rule frequently interferes with procedural rules on civil litigation, as in civil law systems the plaintiff must prove his or her case under the rule of the reversal of the burden of proof. In Anglo-Saxon countries the disclosure obligation in the context of civil litigation diminishes that interference. The workshop triggered a lot of debate around the question of the effectiveness of the rule on the national level and the kind of evidence required and accepted when applying it.

Workshop - Legal standing of organisations

The following issues were discussed:

  • Why are the existing opportunities for legal entities to engage in anti-discrimination litigation on behalf or in support of complainants, or independently from specific victims, underused in practice?
  • Why do trade unions act far less than NGOs?
  • Why are there significant differences in the use of the existing opportunities by legal entities in the different Members States and candidate countries?

There are across the EU a large number of legal mechanisms allowing organisations to bring discrimination claims, which is positive. Definitions on the possibility to engage in support of or on behalf of, as prescribed by the directives, were discussed. The workshop pointed at the existence of mechanisms going beyond what is required in the directives in some Member States, such as action popularis and collective redress including class action or the possibility to join different law claims, although those mechanisms are uneven as great variation in terms of procedures, grounds, remedies, etc., exist. Another aspect addressed concerned the regulation of those mechanisms and how to reflect on the implementation of means of collective redress, in particular for class action. Issues on possibilities for opt-in or opt-out mechanisms in case of class action and on which organisations should be entitled to bring such claims were discussed. Another key point related to the minimum size of the group represented. Finally, the workshop stressed the problems of implementation stemming from a lack of awareness and high costs.

Workshop - Reasonable accommodation beyond disability

The following issues were discussed:

  • How could reasonable accommodation apply to disabled persons in other areas beyond employment (e.g. education and access to and supply of goods and services)?
  • Looking at the European trends, could the notion of reasonable accommodation as developed for disability be applied to the other grounds of discrimination?
  • What can we learn, or draw inspiration from, as regards US and Canadian experiences?

The workshop addressed the concept of reasonable accommodation beyond employment and beyond disability with the potential for applying to other grounds as well. Experiences and practices from Canada were shared, particularly because reasonable accommodation originated in the context of religious belief. Undeniably more information is needed about the potential practical impact of extending the concept of reasonable accommodation outside the employment sphere in relation to disability. Concerns around the potential costs of adjustment beyond the work place were raised. The workshop stressed that reasonable accommodation in the context of disability was still in its early days, thus the prospect to extend to other grounds was approached with some caution. The interaction between indirect discrimination and reasonable accommodation also needs to be closely looked at before endorsing such approach. Indirect discrimination may remove structural problems, whilst reasonable accommodation takes a more individualised approach.

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