Definition of Key Concepts

Professor Erika SzyszczakUniversity of Leicester and Littleton

Chambers

Key Concepts

Direct Discrimination

Indirect Discrimination

Sexual Harassment

Harassment

Direct Discrimination Overt and intentional Less easy to identify since outlawed

perpetrators likely to resort to covert means to exercise choices but see Draehmpaehl , Commission v Spain, Firma Feryn, Commission v Greece

Can it be justified/exempted? Problem of “multiple discrimination”

(“inter-sectional discrimination”)

EC Law Legislation Article 141 EC Article 13 EC Directive 97/80/EC (Burden of Proof) Directive 2000/78/EC (Employment Equality

Directive) Directive 2002/73 (Gender Employment Directive) Directive 2004/113 (Gender Goods and Services

Directive) Directive 2006/54/EC (Recast Gender Employment

Directive)

Article 14 and Protocol 12 ECHR Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language,religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Symbiotic Relationship

Influenced by international and regional law (ECHR);

Influenced by national law and case law

Ostrava

EU law and policy

ECHR

National policy, campaignscases

Definition

Complainant must show that s/he has been

“treated less favourably than another is, has been, or would be treated in a comparable situation.”

Questions to ask: Why?

Who is the comparator?

Problems How to discover the reasons for a

decision/behaviour “Equal misery” outcome

Some case law examples P v S and Cornwall CC

Richards v Secretary of State for Work and Pensions

Grant v South-West Trains

Dekker v VJV Centrum

Schnorbus v Land Hessen

No comparator

Issue in equal pay claims where there is occupational crowding (jobs which are typically female/male);

Different work situations, especially where different employers for the same job

Age Discrimination

What is a sufficient difference in age for the basis of a comparison?

“Don’t trust anyone over the age of 30”

Now 21?

Stereotyping

Roma: R (ERRC) v Immigration Officer at Prague Airport and another

Gender roles: bans on mine working/night work

Article 4, Burden of Proof: Directive 97/80/EC

National law and procedures Complainant to prove a prima facie

case When does the trigger occur to

shift the burden of proof? Use of statistical information

Justifications/Exemptions for Direct Discrimination

Can it be justified?

Lustig-Prean and Beckett v UK

Timishev v Russia

Age Discrimination Article 6(1) Employment Equality

Directive

Conditions:Context of national law, objectively and reasonably justified by a legitimate aim:Legitimate employment policy, labour market and vocational training objectives.

Means: appropriate and necessary

Mangold

Tension between employment policy and age discrimination/fundamental right

Age Concern (UK)

Genuine Occupational Requirements

Where a job cannot be done effectively an actor to play Nelson Mandela?

Earlier approach: Where the sex of the worker is a determining

factor: models for clothes, service care in households, nursing care, legal provisions.

Advice work for ethnic/women’s/gay organisations?

Examples

Maternity, religion

Headscarf debate

Use of Proportionality Johnston v Chief Constable RUC

Kreil v Germany

Sirdar v The Army Board and Secretary of State for Defence

Dory v Germany

New Approach

Article 4 (1) Racial Equality Directive

Article 2(6) Gender Employment Directive

Case – by case assessment

Indirect Discrimination

Use of neutral provision, practice, rule would persons in the protected class at a particular disadvantage compared with other persons unless the provision/practice/rule can be justified by a legitimate aim and the means of achieving that aim are appropriate and necessary

Examples

Part-time work, length of service, working hours, qualifications, training

Bilka-Kaufhaus

Enderby

Proof

Statistical evidence

Finding the right pool of comparison

Reversal of the burden of proof

Objective Justification of Indirect Discrimination

Difference between Member State policy justifications and non-State justifications

Kachelmann

HarassmentSexual harassment:

insults, remarks, inappropriate comments (dress, physique, age family situation,, condescending paternalist attitude undermining dignity, unwelcome invitations, explicit/implicit requests, threats, lascivious looks/gestures, unnecessary physical contact …

ILO Committee of Experts 1988 General Survey

Broader coverage Articles 2, 7, 9, 8 and 10 of Directive 2000/43/EC

Seen as discrimination per se

Moved beyond workplace sexual harassment to cover:

vocational guidance/training, membership of trade unions, social protection, education, access to, and supply of, goods and services (including

housing).

Examples

“Hostile” working environment Bullying Blackmail Psychological risks Exposure to offensive

material/language France and Belgium: “moral

harassment”

Who is Liable?

Problem of vicarious liability of the employer

Acts of third parties - for eg: patients and doctors/nurses, lecturers and students, employees and customers

Coleman

Mother of a disabled child Subject to harassment by

employer and co-workers on return from maternity leave, not given flexible working

Direct discrimination by connection to the disability