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European Equality Law Network

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

2010 Seminar - Making equality rights work in practice

On 9 November 2010 the third 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 137 participants, representatives of the European Commission, EU Member States governments, Equality Bodies and European NGOs.

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 and to discuss particular issues of discrimination under the title ‘Making Equality Rights Work in Practice’. The programme PDF (90 kB) of the seminar included both plenary sessions and parallel workshops.

The feedback from the satisfaction survey PDF (86 kB) resulted in a good overall rating of the organisation, the speakers and the discussion in the workshops.

Workshop - Access to justice

Presentations and interventions during the workshop on Access to Justice were focused on how discrimination law is applied and how victims of discrimination enforce their rights in practice.

Four main issues were raised:

  • Lack of knowledge of discrimination law (rights) and procedures by victims and courts

The phenomenon of underreporting is highly noteworthy and relates to the fact that victims usually do not know what is considered as discrimination and the types of behaviour that are not allowed. In addition, should the victims be aware of these discrimination acts, they are often unaware of which organisations can help and assist them. Finally, they also fear to turn to the authorities (police, administration and equality bodies considered as authorities).

There is a widespread lack of awareness of the procedures applicable to discrimination cases. The transposition of the Directives is not sufficient to ensure effective enforcement by courts.

  • National constraints and procedural rules in the national legal systems

For EU law to be effective, the procedural specificities and legal traditions of the Member States must be taken into account.

  • Discrepancies between the risks of initiating a case and the remedies actually provided by law and the judges

Judicial outcomes are often limited, in particular in terms of sanctions due to the complexity of the legislation, lengthy and costly procedures or the lack of clarity for proving discrimination.

  • Role of associations and equality bodies in assisting victims and bringing claims

Associations and equality bodies play a very important role in bringing claims themselves or in assisting victims. However a lot of uncertainties still remain due to the lack of clarity of EU law. It also appears that they currently face great difficulties in carrying out their work effectively due to the limited allocation of resources.

Workshop - Gender pay gap

Two issues were discussed during the gender pay gap workshop:

  • Measuring the gender pay gap and associated difficulties

Firstly, there is a conceptual difficulty as discrimination does not start at the level at which wages are being set out but well before. Inherent discrimination already exists upstream in gender-based decision making at the household level (namely with the issues of who goes to work and what the sharing of roles is between man and woman in the household) that is not captured in current measurement or adjustment of the gender pay gap. Consequently, discriminatory factors are interrelated with these gender-based decisions at the household level and are difficult to measure.

Secondly, measuring the gender pay gap also constitutes a data challenge. As a matter of fact, the principle behind equal pay for work of equal value is difficult to capture in the data as the definition of work of equal value is not entirely clear as well as equivalent jobs. In France, the HALDE has tested a new approach where the French authorities work together with companies on a system that tries to establish the skills required in individual jobs and to distinguish between jobs dominated by female or male workers and differences of skills in order to adapt job descriptions to reduce the gender pay gap.

  • What to do about gender pay gap?

The necessity to reconcile work and family life was recalled during the workshop. To that effect, there is a strong need for coherence in regulatory instruments at both national and European level around the different types of leave (maternity leave, paternity leave, etc.) and their interaction with efforts to reduce the gender pay gap.

Some experts made the point that it is important not to look at legal approaches only but also to turn to incentive-based or economic-based approaches and to develop some greater exchanges between them. Questions were raised about the effectiveness of legal approaches today as few results on the reduction of the gender pay gap have been seen but it must be kept in mind that this remains difficult to be captured. In any event, a legal approach is certainly a necessary condition that needs to be in place in addressing the gender pay gap even though it might not be sufficient. Finally, positive action is required to create incentives for men to share more equally in family roles.

Workshop - Positive obligations

Positive obligations were looked at against the background of the limits of complaints-led models.

  • Proactive approach towards ensuring effectiveness of gender equality law (bringing about structural and systematic changes brought by institutions and authorities rather than ad hoc changes brought by the individual complaints approach)

The discussion focused on how to make such a proactive approach effective in practice and on the role of enforcement mechanisms. The role of individuals in upholding such proactive measures was also tackled. In particular, we run the risk of being counterproductive if no effective enforcement mechanisms and monitoring systems (e.g. through the clarification of the goals and purposes of such measures) are put in place.

Spain, where equality plans are developed in such a way that clearly identifies responsibilities and purposes, gives one specific example of effective measures. It was shown that those equality plans achieve effectiveness in a more promising manner in comparison with traditional national approaches. In addition, the Spanish system does not rely on sanctions but rather on incentives. For instance, in case the obligation for gender balance in company boards is not achieved, the company would not face any sanction but could rather be prevented from being awarded with certain contracts or an equality labour label. Other promising good practice examples identified were proactive measures that develop into certain legal obligations leading to an adequate combination of proactive and individual complaint-led approaches. Sweden, Canada and the USA where the role of the court is not necessarily limited to grant damages but to adopt proactive measures also provide examples of good practice combining both approaches.

The workshop concluded that the biggest challenge (also for the EU) is to adequately combine individual-based approaches and collective policy-based approaches, without having one replacing the other as they both aim at protecting the same equality rights. In this regard, lessons from the Member states and their approach could be useful.

Workshop - Equality bodies

During this workshop, presentations were first made regarding the specialised bodies in Hungary and in France. The requirements laid down in the EC Directives which detail the functions and structure of equality bodies constituted the starting point of reflection.

Three topics were discussed:

  • Functions and structure

Different legal frameworks are put in place throughout the EU in accordance with each country’s own needs and the minimum requirements of the Directives. The question of enhancing the low standards set for the functioning, powers and structure of equality bodies was discussed. Should there be minimum levels for staffing, budget, performing functions?

  • Independence

A distinction between de iure and de facto independence must be made. Even if independence is guaranteed by law, this does not necessarily mean that de facto independence exists as political parties and governmental authorities can find ways to circumvent the legal framework and influence the work of the specialised body. Should de iure independence and minimum independence be enshrined into international agreements?

  • Effectiveness

The following questions were raised as far as effectiveness is concerned: Is a tribunal or a promotional equality body more effective or a combination of both? Can litigation strategies be effective? Can a stakeholders engagement a condition under which an equality body can be more effective? Various countries situations show that a combination of a tribunal or a promotional equality body could be effective.

How to achieve further developments of the standards for the structure and effectiveness of equality bodies? Equality bodies can be transparent, engage with stakeholders and develop a comprehensive strategy for their various functions and their relations with the outside world. They can develop their own standards but they can do it also in their international networks such as Equinet and learn from exchange of good practices. NGOs and civil society can monitor performance of equality bodies, report and propose standards. Finally, the EU should monitor the performance of equality bodies and bring forward standards and recommendations.

Workshop - Disability discrimination (including accessibility)

The following issues were discussed:

  • Who should be protected?

Disability is not defined in Directive 2000/78/EC but the ECJ, in the Chacon Navas judgment, had given a definition based on a medical model of disability where are emphasised the limitations imposed by the disability rather than by society and the barriers placed in the way of the disabled persons are emphasised.

By contrast, the UN Convention on the Rights of Persons with Disabilities, without defining disability, looks at the way social barriers impacts on impairment. The Coleman case provides a useful extension to the concept of disability protection to include people who are associated, work with or take care of a disabled person. Clarification is still needed regarding whether this would allow an extension to persons to whom disability is imputed. The Directive also does not address the question of whether a person who is not disabled should be treated as favourably as someone who is. It appears that the Member states address symmetrical treatment differently.

  •   What is reasonable accommodation?

Reasonable accommodation constitutes a very important matter to the disabled as it represents a maturing point in relation to the varied need of disabled persons.

Reasonable accommodation is a duty to adapt the workplace in a practical and effective way. Recital 20 of the Directive does not provide many examples on what those methods should be. It was stressed that the solution for one person will often differ from the solution for the next person even if they suffer the same type of disability. What is important in interpreting the Directive is that the view of the persons concerned must be consulted on what is reasonable accommodation in their particular case.

Indirect discrimination must continue to apply alongside reasonable accommodation and the other issues of accessibility. At the UN level, the emphasis is put on accessibility rather than reasonable accommodation and accessibility requirements are laid down in a very detailed manner. This reflects the fact that it was primarily drafted by those with disabilities showing the degree of knowledge to turn the text into a meaningful piece of law. Accessibility has not been explored at the EU level because it is partially treated under the Directive but the UN Convention on the Rights of Persons with Disabilities has been recently ratified by 18 Member states. The UN Convention is also the first international agreement to which the EU is going to accede. However, the lack of emphasis at EU level on accessibility should not overshadow recommendations by the European Disability Forum on the practical impact of the Employment Equality Directive.

The question of the overlap between reasonable accommodation and accessibility and how the two legally link together is not entirely clear. It can however be pointed out that accessibility relates more to anticipation and a universal approach built at a design stage where reasonable accommodation is focused on the rights of individuals. Therefore, if accessibility is adequately addressed upstream, reasonable accommodation should be less onerous at a later stage.

More efforts should be made in the area of public procurement, an area where the EU could be more proactive. Within the internal market, there are also issues concerning the transferability of assistance from one Member state to another which is important for the free movement of people with disabilities.

Discussion paper workshop Disability discrimination PDF (96 kB)
Handout presentations workshop Disability discrimination PDF (184 kB)
Audio presentation workshop Disability discrimination mp3 (7 min)
Powerpoint presentation Mrs. Anna Lawson workshop Disability discrimination PDF (182 kB)
Powerpoint presentation Mr. Rodolfo Cattani workshop Disability discrimination PDF (17 kB)

Workshop on Indirect Discrimination

This workshop looked at the EU legal concept of indirect discrimination developed in the 60s by the ECJ in the framework of free movement of persons. Although the concept has long been part of the EU “acquis”, it still raises a number of questions, sometimes fundamental. The following two cases show that the grounds of discrimination may remain extremely difficult to be identified and that the distinction between direct and indirect discrimination can be blurred:

  • Austrian law stipulates that at the retirement age workers cannot be dismissed. Such a measure appears rather general whereas factually the retirement age differs for men and women. Does this constitute an indirect discrimination case on the grounds of age or a direct discrimination case on the grounds of sex?
  • What if a benefit is tied to marriage?

Case law of the ECJ is not always sufficient and is even of a little help when it comes to clarifying and applying concepts of discrimination. With the Maruko case, the court found direct discrimination on the grounds of sexual orientation even though the difference in treatment was based on marriage. Reasons for such an approach rather than the other were not put forward by the court in its ruling.

During the workshop, the practical implications of objective justifications were also addressed. The question raised concerns the definition of the legitimate aim, appropriateness and necessity. Originally, this was left to the national courts but increasingly the ECJ is taking over although not always in a consistent manner.

Discussions also pointed at the fact that structural causes are often behind indirect discrimination.

Until to very recently, EU law was based on a closed list of prohibited grounds in the context of which the concept of indirect discrimination was necessary. In legal orders where open list prevails, the need of having the concept of indirect discrimination can be questioned as there is no longer a difference between suspect grounds and other types of grounds. With the Lisbon Treaty, the Charter of Fundamental Rights has become a binding instrument with Article 21(1) being openly worded. The Mangold and Kucuvedici cases allow individuals to invoke a general principle in order to obtain a certain result and the same could possibly be argued with the Charter where there is no more specific provision somewhere in EU law. Can indirect discrimination be invoked in the context of invoking primacy?

Finally, courts and plaintiffs could also fall back on the general principle of equality and simply argue that there is difference in treatment between comparable situations. In such cases, the concept of indirect discrimination would no longer be required.

Discussion paper workshop Indirect discrimination PDF (104 kB)
Handout presentations workshop Indirect discrimination PDF (143 kB)
Audio presentation workshop Indirect discrimination mp3 (8 min)
Powerpoint presentation Ms. Romanita Iordache workshop Indirect discrimination PDF (38 kB)
Powerpoint presentation Prof. Dr. Peter Rodrigues workshop Indirect discrimination PDF (302 kB)

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