Anti-discrimination legislation

01/12/2007

The European Union has adopted legislation setting minimum requirements on improving labour standards and strengthened employee’s rights. An important part is the anti-discrimination legislation. The legislation prohibits discrimination in employment and training on the grounds of racial or ethnic origin, sexual orientation, religion or belief, age and disability. The rules on racial discrimination also cover other areas such as education, social security and healthcare, access to goods and services and housing. Due to the limited scope of this article, we will only discuss the discriminatory characteristics as set out in the EU Directives. Please note, however, that some national laws offer protection beyond these discrimination grounds, including, for example, trade union membership or part-time employment.

(In)direct discrimination

Since discrimination often takes subtle forms, both direct and indirect discrimination are covered by the European anti-discrimination rules. Direct discrimination occurs when a person is treated less favourably than another in a comparable situation because of their racial or ethnic origin, religion or belief, disability, age or sexual orientation. Indirect discrimination occurs when an apparently neutral provision, criterion or practice would disadvantage people on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation unless the practice can be objectively justified by a legitimate aim.

Anti-Discrimination Directives and the European Court of Justice

For many years the focus of EU action in the field of non-discrimination was on preventing discrimination on the grounds of nationality and sex. In 1997, however, the EU Member States approved unanimously the Treaty of Amsterdam (which entered into force on 1 May 1999).

Pursuant to Article 13 of the Treaty of Amsterdam, the European Union is granted the power to take action to combat discrimination based on sex, race or ethnic origin, religion or belief, disability, age or sexual orientation. Ever since the Treaty of Amsterdam, new EU Directives have been enacted in the area of anti-discrimination, such as; Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, Council Directive 2004/113/ EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services, and Council Directive 2002/73/EC amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion and working conditions.

The EU Directives are of present interest as the European Court of Justice has by now assessed against the EU Directives in quite a number of cases. Most recently, the European Court of Justice has declared that dismissal of a female employee due to her pregnancy and/or birth of a child is in violation of Council Directive 76/207/EEC1.

What do the antidiscrimination rules imply for employers?

The new rules apply to all private and public sector employers including selfemployment, such as the conditions applying to the practice of certain trades or professions.

All employers must review their employment practices to make sure that they are not discriminating directly or indirectly for example in recruitment procedures, selection criteria, pay and promotions, dismissals or access to vocational training. The antidiscrimination rules apply to all stages of the employment contract from recruitment through to termination. Furthermore, the employer will be prohibited from instructing others to discriminate on the prohibited grounds.

Employers will have a duty of “reasonable accommodation” in respect of candidates or employees with a disability. Employers are required to take appropriate measures to enable a person with a disability to have access to employment and training unless doing so would impose a disproportionate burden on the employer. “Reasonable accommodation” may include, for example, providing wheelchair access, adjusting working hours, adapting office equipment or simply redistributing tasks between members of a team. To determine the disproportionate burden, the financial and other costs entailed, the scale and financial resources of the reorganisation and the possibility of obtaining public funding or any other assistance should be taken into account.

Harassment

The definition of harassment is taken from the European Commission Code of Practice in relation to sexual harassment. Council Directive 2002/73/EC introduced a definition of sexual harassment into EU law. The Directive sets out two definitions: (1) Harassment is where unwanted conduct related to a person’s sex occurs with the purpose or effect of violating the dignity of a person, and of creating an intimidating, hostile, degrading, humiliating or offensive environment; (2) Sexual harassment is where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment.

Help for victims of discrimination

EU Member States must provide for a certain minimum standard ensuring protection against discrimination for reasons relating to racial or ethnic origin, sex, religion or belief, disability, age or sexual orientation. The EU Directives require that EU Member States give victims of discrimination the right to make a complaint through a judicial or administrative procedure and that appropriate penalties are imposed on those who have discriminated. The rules also provide for sharing the burden of proof in civil and administrative cases. This will make it easier for people who have experienced discrimination to prove it.

In addition, the legislation on racial discrimination requires EU Member States to designate bodies for the promotion of equal treatment which will provide independent assistance to the victims of discrimination, conduct surveys and studies and publish independent reports and recommendations. Victims of discrimination may also be supported by a non-governmental organisation like the European Anti-Discrimination Council or a trade union who have a legitimate interest. The EU Member states must promote equal treatment through national organisations.

Conclusion

The implementation of the European anti-discrimination legislation has an impact on Europe. Apart from the UK, the Netherlands and Ireland, most of the European countries do not (yet) have sophisticated anti-discrimination legislation in place. Now that the European Union has adopted legislation setting minimum requirements on antidiscrimination, hopefully the influence hereof will affect the European countries to implement anti-discrimination legislation providing sufficient protection for employees.

1 European Court of Justice, 11 October 2007, C-460/06, Nadine Paquay against Société d’architectes Hoet + Minne SPRL.