Skip to main content

European Equality Law Network

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

Thematic reports

 

Indirect discrimination recognises the potentially detrimental effect of measures that do not refer to protected characteristics but nevertheless disadvantage groups with certain characteristics. Accordingly, EU non-discrimination law goes beyond simply prohibiting the differential treatment directly based on the protected characteristics (or characteristics that are essentially linked to the protected characteristic such as pregnancy or different retirement ages) and invites an effects-based analysis. It recognises that formally equal treatment irrespectively of the protected characteristics, can have detrimental effects on disadvantaged groups within societies that are shaped by past discrimination, unequal opportunities and structural inequality (including specific employment features such as part-time work). Within the context of this report, we will analyse the scope and functioning of the concept of indirect sex discrimination with a focus on employment. Since EU non-discrimination law originated within the context of employment sex discrimination, this area of EU non-discrimination law is the most developed and national courts should have significant experience with indirect sex discrimination in employment. These developments are relevant for the entire application of the concept of indirect discrimination irrespective of protected ground.

Publication date: 18 March 2021. Topics

The rapid development and increasing use of artificial intelligence and algorithmic applications have raised many concerns relating to algorithms’ propensity to discriminate. Algorithmic discrimination can arise from various sources and at various stages of software design and it risks endangering one of the most fundamental rights guaranteed by EU law: the right to gender equality and non-discrimination. This thematic report identifies the main legal challenges arising from algorithmic discrimination at both national and EU level, covering the EU-27, the EEA countries and the United Kingdom. It assesses whether the current gender equality and non-discrimination legislative framework in place in the EU and at the national level adequately captures algorithmic discrimination. It maps out the gaps and weaknesses that arise from the interaction between the specific types of discrimination produced by algorithmic decision-making systems on the one hand and the particular material and personal scope of existing legislative frameworks on the other. This thematic report also examines which legal solutions, policy measures and good practices the EU and the national member states have adopted to address these gaps and weaknesses. In short, this thematic report investigates how the issue of algorithmic discrimination is framed, addressed and redressed in the EU, with a particular focus on gender equality.

Publication date: 18 March 2021. Topics

This thematic report analyses and compares age discrimination laws outside the labour market in the areas of social protection, healthcare, education, housing and access to and supply of goods and services in EU Member States and under the European Convention on Human Rights and Fundamental Freedoms (ECHR). It establishes how such laws (as exist in legislation and case law, or soft law) address age discrimination in these defined areas, identifies gaps in the existing legal protections across the EU Member States and provides recommendations on the most effective legal mechanisms for tackling age discrimination within the EU. The gender aspect is not dealt with in this report, but there is some reference to gender, for example reference to ECtHR case law or when literature refers to it. Regarding the gender aspect, the report refers the reader to the Advisory Committee on Equal Opportunities for Women and Men ‘s Opinion on ‘Challenges for gender equality in a rapidly ageing society’.

Publication date: 24 November 2020. Topics

This report considers protections against sexual orientation discrimination in areas beyond the labour market, and explores whether (and to what extent) any such protections exist in the 27 EU Member States and the United Kingdom (UK). The report focuses on the spheres of social protection, education and access to and supply of goods and services. Taking these topics as a point of departure, the report asks whether domestic law prohibits – either through statute, administrative practice or judicial precedent – unequal treatment on the basis of sexual orientation. There is a particular emphasis on the case law of Member States’ and UK’s judiciaries, and consideration of whether judicial intervention (even in the absence of explicit statutory protections) has ensured equality protections on the basis of sexual orientation. The report identifies potential exceptions to equality obligations (e.g. religious exemptions), investigate the role of national equality bodies and explain how (if at all) discriminatory acts are remedied. Against a background of ongoing political debate, the report clarifies the extent to which EU countries and the UK acknowledge sexual orientation inequality in spheres outside employment and occupation. As such, the report highlights key legislative gaps, identifies examples of good practice and offer workable recommendations for reform.

Publication date: 23 November 2020. Topics

This report examines strategic litigation in the field of sex discrimination law. It consists of four parts:
The first part presents a conceptualization of strategic litigation. The second part will provide an overview of existing strategic litigation practices regarding sex discrimination at the national level. The third part will contain an examination of strategic litigation at the EU level. The fourth part will analyse different factors contributing to successful strategic litigation efforts.

Publication date: 6 May 2020. Topics

This report analyses national and international case law on racial discrimination in education (including segregation) with reference to the Racial Equality Directive and assess its practical impact in view of diverse forms of enforcement.
The first part of the report describes the multiple sources of EU equality law on racial discrimination in education. The second part summarises EU Member States’ national legal frameworks, canvassing the prohibition of discrimination (including harassment) in education, the scope of protection and the explicit/implicit prohibition of segregation. The third part analyses the case law of national courts, equality bodies and field specific enforcement agencies. The fourth part looks, against the backdrop of the transnational nature of European equality law, at legal enforcement as part of a holistic social change strategy.

Lilla Farkas and Dezideriu Gergely (2020)

 

Publication date: 8 April 2020. Topics

Since the adoption of the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC) the Court of Justice of the European Union (CJEU) has handed down an ever-increasing number of judgments related to these Directives, clarifying many important aspects of their wording. An initial overview of the evolution of this case law, addressing key themes within its development, was written in 2012 by Colm O’Cinneide. This report provides an updated account of case law developments since that date, and also to trace the ongoing impact of the CJEU’s case law on national law. It takes stock of how the case law of the Court has developed since 2012. It also examines the impact of this case law on national law and critically analyses the evolution of the Court’s jurisprudence. The methodology used is qualitative, involving close analysis of the judgments of the Court, opinions of Advocate-Generals, academic commentary and decisions of national courts in Member States.
Kimberly Liu and Colm O’Cinneide (November 2019)

Publication date: 4 December 2019. Topics

This report considers the use of ‘positive action’ in employment as a key mechanism to advance women’s equality, and to ensure gender-balanced company boards. ‘Positive action’ involves the use of measures that are taken by government or other actors to enable or encourage members of ‘protected groups’ (such as women) to overcome or at least reduce current or past disadvantages (including discrimination), or to meet the needs of the protected group that differ from other groups, or to enable or encourage persons in the protected groups to participate in a particular activity where they might otherwise be under-represented. The report identifies the current legal and regulatory frameworks and scope of positive action in European Union law and policy, and in the 28 European Union (EU) Member States (including the United Kingdom), and the 3 members of the European Economic Area (EEA, comprising Iceland, Liechtenstein, and Norway). The report aims to lay bare where tensions and gaps may arise in the applicable legal framework between different levels of legal authority, but in particular between the EU law and national approaches to positive action. Addressing this second issue involves a reflection on whether there are possible inconsistencies or shortcomings in the current EU legal treatment of positive action (including the jurisprudence of the Court of Justice of the European Union. In light of this analysis, the report makes recommendations for possible European Union action, including suggestions for actions that may be included in any forthcoming EU gender strategy.

Christopher McCrudden (October 2019)

Publication date: 4 December 2019. Topics

Susanne Burri (2019)

Publication date: 6 November 2019. Topics

Susanne Burri (November 2018)

Publication date: 18 December 2018. Topics

Naill Crowley (August 2018)

Publication date: 10 December 2018. Topics

Marjolein van den Brink and Peter Dunne (November 2018)

Publication date: 20 November 2018. Topics

Eugenia Caracciolo di Torella and Bridgette McLellan (March 2018)

Publication date: 7 March 2018. Topics

Linda Senden and Sonja Kruisinga (January 2018)

Publication date: 30 January 2018. Topics

Erica Howard (November 2017)

Publication date: 11 December 2017. Topics

Isabelle Chopin, Catharina Germaine and Judit Tanczos (November 2017)

Publication date: 8 November 2017. Topics

Albertine Veldman (April 2017)

Publication date: 28 April 2017. Topics

Olivier De Schutter (July 2016)

Publication date: 12 October 2016. Topics

Kevät Nousiainen and Christine Chinkin (April 2016)

Publication date: 20 April 2016. Topics

Go to the website of Utrecht University
Go to the website of the Migration Policy Group

Order European equality law review

Click here to order publications