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Published: Fri, 02 Feb 2018

Non-discrimination legislation

The European Union has actively been involved with non-discrimination legislation since the 1970s when gender equality laws were introduced. The European Court of Justice stated clearly on pay legislation between men and women that curbing and preventing discrimination is “part of the social objective of the Community.” The Lisbon Treaty reinforced the principle of non-discrimination as one of the basic values of the European Union. [1] Some of the values that led to the establishment of the Union include respect for human dignity, equality, freedom, the rule of law, democracy and human rights including the rights of individuals who belong to minority groups.

Member states that practice these values usually have a society that is composed of non-discrimination, justice, tolerance, pluralism, solidarity, and equality between men and women. On December 1, 2009, the Lisbon Treaty came into force and effectively amended the Treaty on European Union (TEU) and thereby introduced the Treaty on the Functioning of the European Union (TFEU). [2] TFEU created and consolidated some provisions which relate to non-discrimination and equal treatment. For instance, Article 10 of the TFEU introduced new norms that states that the Union shall actively curb discrimination which is based on ethnic or racial origin, sex, disability, religion or belief, age or sexual orientation. [3] 

The requirement of the article is to streamline the fight against discrimination into European Union policy considerations which also include external relations and employment strategy. Article 19 TFEU which is more specific on non-discrimination norm was consolidated by the Lisbon Treaty. [4] The council possesses special legislative procedure that enables it to work unanimously within the powers conferred to it by the Union. It can work without prejudice and act within the provision of the Treaties. When it obtains the consent of the European Parliament, it can also take the necessary actions to combat various forms of discrimination.

Racial and ethnic origin

In the 1980s, there was increased debate on the need for European Union legislation on race and ethnic discrimination. Little was done during this period to create a legal basis for the purpose of legislation. In the 1990s, increased immigration as well as increased lobby brought the issue of racism to the attention of law makers. In 1992, the Race Directive has highly welcomed taking into consideration that many institutions in the EU were getting concern with racism even when different member states were hindering legislative actions. [5] 1997 was made the European Year against Racism and Xenophobia so as to raise awareness. In addition, the establishment of the European Monitoring Centre on Racism and Xenophobia was aimed at developing more informational and formulating a policy that will address these social problems.

The introduction of Article 19 TFEU only took a period of six months before the Council adopted the Race Directive proposed by the commission. [6] Much of the discrimination tendencies were politically motivated and the urgency of adopting the directives was as a result of Austria’s extreme right-wing government in 2000. [7] In addition, the European Union wanted to assert its commitment to specific values of racial equality and other factors that led to the establishment of the community. The Union was gradually becoming bigger and it needed to incorporate non-discrimination issues and send a strong message to the community against racial intolerance

Two discrimination directives were introduced by the European Union in 2000 and their basis came from the previous version of Article 19 TFEU. [8] The Directives aimed at providing the victims of discrimination with a means of taking legal action against it based on religion or belief, race or ethnic origin, disability, age or sexual orientation. When the two equality directives were introduced by the EU Council, the main aim was to introduce a shift of the burden of proof. Some of the existing law and practice when it came to gender discrimination was used to create these provisions. The motivation behind the creation of a specific field in the area of proof was the fact that it was often difficult to get information that portrays the existence of discrimination. [9] 

In most cases, the relevant information that portrays the existence of discrimination lies with the responding party, who is the employer or the provider of services. The burden of proof during court procedure lies with the claimant who has submitted the cases. When the claimant gives out the facts that will be used to presume presence of discrimination, the shift of the burden of proof lies with the responding party who will have to show that discrimination does not exist. It is very difficult to prove the existence of discrimination and in practice, being successful in proving this case can be a daunting task. People do not openly admit that they engaged in discrimination and in most cases, such vices are often hidden or indirect. The requirement in law is for the person who claims the existence of discrimination must prove it with supporting facts. [10] 

For instance, a job applicant who fails to secure employment may claim that he was denied the opportunity as a result of his ethnic background but the challenging task is obtaining the company’s internal memo that claims that ethnic origin is the reason of being rejected. This is the reason as to why the development of sex discrimination; the Framework Employment Directive and the Racial Equality Directive introduced particular provisions aimed at easing the burden of proof in discrimination cases. [11] Initially, in the EU, the Council directive 2000/43/EC of 29 June 2000 on discrimination aimed at implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Moreover, the Council Directive 2000/78/EC of 27 November 2000 created a general framework for equal treatment in employment and occupation. [12] 

Men and women have been experiencing economic, competitive and social problems when it comes to employment procedures. These issues have been addressed in Article 1577 TFEU in the fields of gender dealing with equal pay and treatment of work which is of the same value. Social and economic values were the main motivation behind this Article. Member countries which had introduced equal pay for men and women in the same field had a competitive disadvantage against member countries whose pay schemes were different across gender since they could produce more cheaply. [13] Discrimination in payment against women became a social problem as well as contravening the fundamental human rights as required by international and European instruments, e.g, the European Social Charter and the European Convention on Human Rights.

The European Court of Justice from 1970s has received several cases pertaining to unequal pay. According to the Court, the social dimension is of equal or more importance than the economic dimension on matters of equal treatment as required by EC law and policies. Directive 75/117 was introduced by the European Commission in 1975 and its aim was to harmonize national legislation regarding the principle of equal pay for equal value of work. [14] The Directive wanted to solve the problem of equal-pay principle where the performed work by two employers is different but have the same value. Claimants often accused employers of not maintaining a payment system which is clear and transparent. Proving unequal pay in court was challenging since there was no mechanism of proof to substantiate differences in payment.

Case law of the European Court of Justice (ECJ)

The problem of the existence in payment was first acknowledged by the ECJ in the Danfoss case. The Court held that when an organization uses a payment system which does not have statistical and transparency evidence, it meant that there was a difference in pay between male and female employees. The burden of proof was then shifted to the employer who was required to account for the difference in pay which is unrelated to sex. [15] According to the ECJ, if normal division could not be used to prove the clarity of the pay system by the employer, it is challenging or even impossible to prove that discrimination has occurred. Female employees resorted to using statistical evidence to prove that men earned more that their female colleagues. The ECJ held that usage of statistical evidence could lead to “apparent discrimination.” [16] In the Enderby case, the ECJ reinforced this development when it ruled that when a person alleges to have facts to support a claim, he must be able to adduce proof of such facts.

Case-law of the court has shown that the onus may shift at certain times so at to assist workers who are victims of discrimination and to ensure that the principle of equal pay is maintained. Case 80/70, Defrenne I [1971] ECR 445 and C-50/96 Deutsche Telekom v. Schröder [2000] ECR I-743, para 56 was necessitated by the issues of differentiating workers according to the amount of hours they have worked. [17] However, this practice on the hours of work has an adverse impact on people from one sex and this is contrary to the objectives of Article 119 [currently Article 141]11 of the Treaty. [18] An employer must clearly show that there is a good reason for difference in pay when a prima facie case of discrimination is taken to court.

Discrimination is wrong when people treat others in “morally irrelevant manner” or in unwarranted contempt such as refusing to employ someone because of the colour of her skin. The law is tricky when it comes to prohibiting discrimination based on discrimination and not based on political ideology, especially when you take into consideration that both issues are freely chosen. One critical omission in the discrimination Directive is any definition of protected group. Member states have the authority of setting the definition but the Court of Justice still posses the determinative role in guiding the meaning of aspects based on race, religion and ethnicity. [19] Discrimination Directives are meant to provide protection to workers who belong to a certain protected group. In addition, the design of the directives also provide protection to people who do not belong to a certain protected group but may encounter discrimination on the basis of race or sex.

In the 1970s, Eliane Vogel-Polsky, a Belgian lawyer put the Belgian law to the test with Article 157 TFEU by representing Gabrielle Defrenne, an air hostess who had received a lesser pension than her male colleagues. In Defrenne v Sabena, the court ruled that the equal pay provision under Article 157 TFEU had a direct effect. [20] This increased the need to evaluate the compatibility of the Belgian law to that of the European Union, particularly the ones which come from Netherlands and the United Kingdom. In the 1980s and 1990s, the pace of sex equality legislation stagnated since member countries were reluctant in promoting equality further. Member states were encouraged to take these actions when the Commission drafted some soft law measures. [21] 

The Court of Justice has been instrumental in shaping and increasing the level of sex equality discrimination since most of the principles have been set by judgments which have later been translated into legislation. In addition, the Court also increased the level of discrimination which targets transsexuals. In P v S and Cornwall County Council, the court dismissed the P’s arguments after she decided to undergo male-to-female reassignment, a medical procedure which gives her a more integrated identity. [22] According to the findings of the court, this constitutes discrimination based on sex in breach of Directive 2006/54/EC (Equal Treatment Directive).

Many people welcomed the judgment since it removed the narrow emphasis on sex discrimination and moved towards appreciating gender identities. In addition, it was affirmed in KB v National Health Service Pensions Agency, whereby a female worker wanted to assign her pension rights to R who is a female-to-male transsexual, but could not manage because the UK law did not legally recognize R’s sex change. R and KB could not marry implying that R could not be nominated by KB to receive KB’s benefits in case she dies before R. according to the ruling, there was no discrimination that prevents the right to of married people to receive a survivor’s pension, but the de facto UK law prohibits R to qualify as a married person. [23] 

Earlier on, the European Court of Human Rights (ECtHR) had ruled that the UK law was not compatible with the European Convention on Human Rights which is based on the right to marry. [24] It was in breach of Article 157 when R could not qualify to get the survivor’s pension. The European Court refuses to challenge decisions made by member countries when it comes to choosing a person to marry and it does not engage itself in solving complicated issues such as people who do not undergo gender transformation but consider themselves as belonging to the other sex (transgender). [25] 

When the Lisbon Treaty came into force, Article 13 was amended and replaced by Article 19 of the TFEU. 15. The level of protection was increased beyond sex by the Treaty Amsterdam although protection on diverse grounds remains different. Article 19 TFEU is different from Article 13 TEC by its procedural aspect as well as the changed role of the European Court. [26] Moreover, the Directive protects people in spite of their ethnic or racial origin and includes broad social activities such as employment, social security, education, self-employment, housing, healthcare, and supply of goods and services the Framework Employment Directive is meant to cover age and sex orientation, religion or belief, and disability but is limited to employment issues.

Member states can use their national judicial systems to take necessary actions when a person has been wronged, to establish before a court if the action constitutes direct or indirect discrimination, and the respondent will have the task of proving that the principle of equal treatment has not been breached. [27] This implies that the way in which the burden of proof is shifted varies according to a country’s legal norms. For instance, the existing Equal Treatment Act in Netherlands was amended with a section of burden of proof included in the Act. [28] The specialized body in the country which is known as the Dutch Equal Treatment Commission has on a regular basis applied the mitigated burden of proof.

Direct discrimination

In the UK, equal treatment laws with regard to age and disability have been included in section 63a of the Sex Discrimination Act of 1975. In the first instance, the claimant must prove that the action he experienced was discriminatory and in the absence of relevant explanation, the respondent will be found guilty of unlawful acts. To prevent unjustified accusation, the claimant is left with the task of substantiating or proving the actual incidents. In different member countries, the application of burden of proof often depends on the form of discrimination. [29] Direct and indirect discrimination have different ways of dividing the burden of proof. When it comes to direct discrimination, the wronged person must prove that he was treated unfairly than the way another individual would have in a similar or incomparable situation.

A concrete comparator should be present but when he is not available, a possible comparator should be found. For instance, when a patient makes derogatory comments towards a nurse who comes from an ethnic minority, the nurse is allowed to prove that the patient made racist comments, without the need of proving that the comments were not aimed for fellow nurses of the native origin. For instance, a Dutch-Turkish employee made accusations and sought the opinion of Equal Treatment Commission (CGB). [30] He accused his supervisor of discrimination on the grounds of race by saying that he was often insulted and derogatory remarks directed towards his Islamic faith.

Moreover, he claimed that his locker was written with racists signs. The supervisor denied the accusations before CGB and the employer carried out investigations but failed to reveal signs of discrimination. [31] CGH found that the petitioner and the employer had presented evidence in opposing ways. Secondly, the petitioner could not substantiate the facts either through witness statements or otherwise. CGB held that the petitioner could not establish a presumption of discrimination and thus dismissed his claim.

Indirect discrimination

The criteria of indirect discrimination cases are apparently neutral, and they include the practices which may put people who belong to an ethnic or racial minority at a specific disadvantage compared to others. The claimant must establish the facts in relation to criterion, practice or measure. [32] To prove indirect discrimination, a claimant needs to produce enough quantitative data although it is not a must. It is not an obligation to statistically determine the disadvantage for the effect to be different on the concern group, but common knowledge is enough to establish presumption of discrimination. For instance, when a company requires that job seekers speak fluently the national language, then migrants will be in a disadvantageous position compared to natives. Using statistical data requires a different approach. [33] 

For instance, evidence is needed by the EC Directive that criterion, measure and practice to affect a huge numbers of members from one sex, unless the issue at hand is necessary and appropriate and can be objectively justified. For instance, a bank manager may refuse to provide mortgage loans to members of a particular section of the city, usually the poverty stricken. [34] However, the claimant can collect statistical data and prove that members of that area belong to a minority ethnic background, and that is the main reason why the bank refuses to offer loans. Evidence from the claimant must establish two facts. The fact to presumption of discrimination and convince the court that it is credible.


The challenging art in the application of the Race Directive emanates from the lack of definition of race or ethnic origin and the lack of a uniform practice that creates precedent. The weakness of the Race Directive is its statement that the EU does not condone theories that try to justify reasons for the existence of separate human races. This portrays the practice in America where the Supreme Court takes a wide approach in trying to identify race. EU has recognized that the race of an individual is based on social constructs such as culture, colour, language or religion. [35] 

Another limitation of the Race Directive is that it fails to suggest that “observable characteristics” such as the colour of the skin can be the basis of race, especially considering that this could be used to facilitate the implementation of effective laws. It is even more complicated to define the term ethnicity. Two important conditions have been identified by the House of Lords in UK law on the existence of an ethnic group. [36] First, there has to be a long shared history of people from a separate group and secondly, there is a cultural tradition which includes social and family customs. Other characteristics of ethnicity includes a common geographical origin; common religion, language or literature; and belonging to a separate group in a large community. When this is used to form a basis, Gypsies, Sikhs and Jews form distinctive ethnic groups, while Rastafarians are not considered as distinct since they do not have a long shared and sufficient history. [37] Therefore, a complicated borderline is created when it comes to discrimination on the basis of religion or race.

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