Equality:
Reasons for Equality:
Equality as -
Fairness.
Dignity being respected.
Emancipation (equality as a means of liberating people).
Access to ‘prized goods’.
Concepts of Equality:
Formal Equality.
Formal equality involves treating like cases alike and different cases differently, but not taking substantive steps to achieve equality.
This is the usual starting point for domestic equality legislation.
Problems with this Approach:
Question of what cases are alike is ambiguous – no two groups are identical.
Insufficient to address injustices.
Substantive Equality.
Substantive equality places greater focus on outcomes and opportunities, rather than simply treating like cases alike and different cases differently.
This approach entails both negative and positive duties on the state.
Negative Duties: not to discriminate.
Positive Duties: to help those from disadvantaged groups in society.
EU Equality Law:
Evolution:
There was an almost complete absence of equality provisions in the original Treaties. This shows the lack of consensus over how an economic Union should interfere with member state competences and discrimination issues.
Sole Exception – Art 157 TFEU:
‘Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.’
The exception for equal gender pay reflects economic nature of the EU at its inception and concern that the labor markets in certain member states would take advantage of cheap female labor otherwise.
In DEFRENNE, a female flight attendant was being paid far less than her male counterparts. She took the private employer to court over this. Domestic (Belgian) courts referred question of whether Art 157 could be invoked against private employers.
The CJEU held that the Treaty provision can be directly invoked against private employers within their national courts.
‘Big Bang’ for equality in the EU – ‘it began the process of recasting EU gender equality law as a question of fundamental human rights, not merely an economic expedient.’ [1]
Initial focus on gender equality.
Result:
(Creative) Legislation.
(Strategic) Litigation.
The Treaty of Amsterdam made an explicit reference to equality as an EU competence. Since then, the EU may enact legislation regarding equality on specific grounds.
Art 19 TFEU:
1. ‘… [The] Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.’
EU action taken based on Art 19 TFEU can only extend to the grounds listed and requires unanimity to enact.
This limits the scope of potential EU equality legislation.
‘given the major political hurdles to Treaty reform, this is a deeply entrenched constraint.’ [2]
The Treaty provision is permissive in nature, so does not confer directly effective rights to EU citizens.
‘This is the moment when the Union moves from a concentration on gender equality to a broader conception of anti-discrimination law.’ [3]
The Treaty of Lisbon made equality a foundational value.
Art 2 TEU:
‘The Union is founded on the values of respect for… equality’ … ‘pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men’
Structure:
EU Action.
See Art 19 TFEU above.
EU Legislation
Some anti-discrimination legislation covers only one discrimination ground, while others cover multiple discrimination grounds. Some are sectorial (covering only work-related discrimination), while some is horizontal (covering several areas). See below.
EU Citizens Directive
EU Charter of Fundamental Rights and General Principles
See Fundamental Rights.
Equality Framework Directive (Directive 2000/78)
Scope of Application:
Applies to discrimination on grounds of religion or belief, disability, age, or sexual orientation.
Generally, applies in employment and occupation.
Prohibited Behaviour:
Direct Discrimination (Discrimination in Law)
There is an absolute prohibition on direct discrimination, except for narrow exceptions based on occupational or age requirement(s).
EG: a church could stipulate that only members of that religion work there.
Indirect Discrimination (Discrimination in Fact)
Indirect discrimination can be justified if there is a legitimate aim and the measure is proportionate. The burden is on the side doing the marginalisation to prove the discrimination they are facing is proportionate.
Harassment
Specific Issues of Discrimination:
The EU has a mix of progressive and regressive trends, along with an uneven record between the different grounds of challenging discrimination. Arguably, EU equality law is stronger in theory than practice.
Gender:
The ECJ begin the initial push on gender equality. [4]
This was followed up by the legislature. As people began to understand the evolving equality law more, employees began to litigate under these new frameworks.
Legislative Follow-Up (1970s):
Equal Pay Directive (Directive 75/117)
Equal Treatment Directive (Access to Employment) (Directive 76/207)
Social Security Directive (Access to Social Services / Social Security) (Directive 79/7)
Continued Judicial Success:
Expansive interpretation of ‘discrimination’ and ‘pay’, pushing the scope of the law.
Continued Legislative Success:
Pregnant Workers Directive (1992) (Directive 92/85)
Directive on Access to Goods and Services (2004) (Directive 2004/113)
Equal Opportunities Directive (2006) (Directive 2006/54)
Equal Treatment in Self-Employment Directive (2010) (Directive 2010/41)
Despite legislation, 16.3% gender pay gap remained across member states (in 2016). [5]
‘slow progress’ [6]
A decade of political deadlock then ensues on the gender equality front.
Standstill:
(Proposed) Company Boards Directive
There is an underrepresentation of women on company boards. Only ~13.7% of board members are female in the largest listed companies.
Proposal:
The Commission proposed a 40% representation target in 2012 where there would be ‘no obligation of result’, only a duty to introduce appropriate selection criteria.
The proposal was of ‘limited scope’ since it only applied to non-executive directors of large companies listed on stock exchanges and only imposes ‘light-touch regulation’. [7]
The proposal was quite heavily opposed at first, though the majority of member states were supportive of the amended version of the proposed directive.
Reasons for Political Deadlock: [8]
Legality
A question of whether company boards are in an ‘employment’ relationship with their companies in the sense of Art 157(3) TFEU.
This is a weak argument since most company board members are paid for their services regardless, essentially making their work akin to employment.
Subsidiarity
National parliaments argued that this equality measure would and could be best achieved at domestic level, so implementation of the directive would undermine subsidiarity.
11 reasoned opinions and 5 comments were delivered – just short of triggering the ‘yellow card’ ESM mechanism.
Economic Pressures (from Businesses).
Cultural Differences
Gender equality across the EU varies significantly.
Ironically, Germany (and the Czech Republic) argued that there were not enough women to fill these positions (despite having such large populations).
New Hope and Compromise:
The European Parliament and Council gave the go-ahead to the Directive in 2022 and it is now in the legislative process.
Compromise:
40% target for non-executive positions by 2026.
Member states can choose to whether to apply the new rules to all board members (both executive and non-executive). If the rules are applied to both, the target reduces to 33%.
Companies who fail to meet the target are required to adjust their selection process - merely soft sanctioning.
The discourse surrounding the directive raises the question of whether it is a victory for gender equality or a sign of stagnation (the argument being that the EU simply cannot go any further).
Sexual Orientation:
Constitutionally, addressing sexual orientation discrimination is quite difficult. Family law is a national competence and there has traditionally been a strong deference to member states by the CJEU in this area. [9] The EU legislature was also initially quite restrictive in its approach to tackling discrimination based on sexual orientation and gender identity.
More recently, the EU legislature began working on equality of sexual orientation. The ECJ has also begun dealing with these claims more actively.
Legislative Provisions:
Restrictive EU Staff Regulations
(Failed) Equal Treatment Directive
Failure was a result of pushback within member states.
Also see above: Equality Framework Directive (Directive 2000/78)
Judicially-driven Change:
Pensions Cases (receiving less as a surviving spouse for same-sex couples than different-sex couples). [10]
Citizenship Rights [11]
Homophobic Statements [12]
In NH, a practicing lawyer in Italy said that he would not want LGBTI persons working in his firm during a radio interview. A challenge was brought against this comment regarding discrimination as to ‘access to employment’ despite the statement not being made as part of the recruitment procedure.
The CJEU ruled that ‘The expression of discriminatory opinions in matters of employment and occupation by an employer… is likely to deter the individuals targeted from applying for a post’, reiterating that freedom of expression is not an absolute right.
The rise in ‘LGBT Free Zones’ is quite worrying. The EU has declared the EU to be an ‘LGBTQ Freedom Zone’.
Neither of the declarations are legally enforceable; they are merely symbolic.
There has not been any legal action on this field yet.
Potential Routes of Challenge:
Municipalities as employees (similar argument to NH).
Art 7 TFEU.
Art 2 TEU.
Race:
Racial discrimination was not on the EU’s agenda for an exceptionally long period of time. This is quite surprising considering racial diversity as a result of post-colonial immigration. Until 2000, there was no provision for racial discrimination.
Legislative Provisions:
Race Equality Directive (Directive 2000/43)
The directive establishes a prohibition on discrimination or harassment on grounds of race and ethnic origin.
Broad Scope of Application:
Employment and vocational training.
Social protection (social security and health care).
Education.
Access to goods and services which are available to the public, including housing.
See above: Equality Framework Directive (Directive 2000/78)
Little litigation in this field.
In FERYN, a Belgian company director stated he would not hire immigrants. The CJEU held that this was discriminatory.
In CHEZ, electricity meters were installed at a height of 7m in Romani districts. This made it exceptionally hard to read the meters. This was done to prevent the meters from being easily tampered with due to stereotypes about the Roma people. The CJEU held this was discriminatory and the meters had to be lowered.
In DECKMYN, the case involved the caricature of Muslims / PoC, which the CJEU held to be discriminatory.
The question of whether the judicial approach is the most effective to challenge racial inequality still stands. Perhaps other positive action is required.
Marginalised people may not know of their rights, may not have the means to litigate, or may face a judiciary that is unsympathetic to discrimination issues (due to homogeneity of judges in courts).
Solanke notes that the composition of courts needs to reflect those it serves to be legitimate; judicial diversity a matter of democracy, nor merely diversity. There is a current CJEU diversity mandate focused on gender, but this may still need to be broadened. [13]
Religion:
Religion one of the biggest areas of discrimination in the EU currently.
In ACHBITA, a Muslim receptionist was prohibited from wearing her headscarf at work. The private employer had a neutrality policy that employees could not wear any visible political, philosophical or religious status. When the employee refused to remove the headscarf, she was fired. Belgian courts referred to the CJEU.
The CJEU left with question of whether this was direct or indirect discrimination. The Court held that this was not direct discrimination (since the policy did not specifically prohibit the wearing of religious headscarves), but it was indirect discrimination (since it would harm specific groups more than others – especially Muslim women).
Applying the proportionality test, the CJEU found that the employer’s desire to display an image of neutrality is a legitimate aim, and then balanced freedom of business against religious freedom. It held that the company must check if it can offer a post non involving visual contact with customers, but otherwise free to dismiss her.
Here the CJEU is attempting to protect different versions of equality by giving deference to national courts.
Problems:
The court allows religious anti-discrimination provisions to be proportionally balanced against other considerations.
Arguably, the ruling side-lines religious freedom for efficiency of business. It pushes religious minorities to the back rooms, further reinforcing their status and marginalisation in society.
The CJEU is placing religion close to bottom of the hierarchy of discrimination grounds – justification tests are not rigorous enough when dealing with religious issues. The discretion left to member states is rather vague, potentially reflecting apprehension to engage in politically sensitive issues that divide different member states. [14]
Ruling hinders employment opportunities and wider social inclusion. [15]
In WABE and MÜLLER, (similar to ACHBITA) neutral policies were used at a German day-care nursery (WABE) and a drugstore (Müller), despite diversity statements. Religious persons were prevented from wearing headscarves.
The CJEU confirms its ACHBITA jurisprudence but introduce nuances (the policy must be applied consistently and systematically). The court finds that the policies are just indirectly discriminatory in this case; if the policies are targeted at ‘large-sized signs of political, philosophical or religious beliefs’, the policy would be directly discriminatory.
Intersectionality of Multiple Grounds:
Often discrimination between different grounds overlaps.
EG: being lower class, Jewish and LGBTQ+.
‘intersectional discrimination can be characterized as discrimination on more than one ground where either the specific contribution of any one of these grounds is indiscernible or the full extent of discrimination is only recognizable by acknowledging the combination of two or more grounds’ [16]
Example:
Race Discrimination – Black men being promoted, so no discrimination.
Gender Discrimination – women were being promoted, so no discrimination.
Failing to recognise the reality of intersectional discrimination is problematic because, when race and gender are combined, black women were not being promoted, so are being discriminated against.
The CJEU has not, so far, protected these intersectional claims.
In PARRIS, the question of whether an applicant would be able to receive a survivor’s pension arose. The applicant was a college lecturer and had been in a same-sex relationship for 30 years. The conditions for the survivor’s pension were that the applicant was married / civilly partnered to the deceased and they committed to the union before they turned 60. Civil partnerships were not legal in Ireland until 2005, so the applicant could not marry the deceased until they were 63. This meant they were unable to claim the pension.
The CJEU refused to allow a discrimination claim on the basis of a combination of intersecting claims. The Court held that, looked at separated, there was neither discrimination on grounds of sexual orientation (partners in homosexual relationships are not treated less favourably than heterosexual partners [at least anymore]) or (unjustified) age discrimination. Therefore, they held there was not discrimination.
‘… while discrimination may indeed be based on several of the grounds set out in Art 1 of Directive 2000/78, there is, however, no new category of discrimination resulting from the combination of more than one of those grounds, such as sexual orientation and age, that may be found to exist where discrimination on the basis of those grounds taken in isolation has not been established.’
Problems:
Creates gaps in legal protection and disregards multiple identities.
The case marks exception to CJEU’s generally purposive interpretation of anti-discrimination provisions. The court engages in a narrow and restrictive interpretation of the Directives. [17]
The discretion left to member states remains vague, potentially reflecting apprehension to engage in politically sensitive issues that divide different member states. [18]
‘Although there are multiple grounds within EU anti-discrimination law, paradoxically the law remains ill-equipped to respond to intersectionality.’ [19]
Resources:
References:
[1] Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 651 [2] Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 674 [3] Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 655 [4] See Defrenne above. [5] See Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 656 [6] Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 658 [7] Havelková, ‘Women on Company Boards: Equality Meets Subsidiarity’ (2019) 21 Cambridge Journal of European Legal Studies 193 [8] See Havelková, ‘Women on Company Boards: Equality Meets Subsidiarity’ (2019) 21 Cambridge Journal of European Legal Studies 193 [9] EG: Case C-249/96, Lisa Jacqueline Grant v South-West Trains Ltd [10] EG: Case C-267/06, Tadao Maruko v Versorgungsanstalt der Deutschen Bühnen; Case C-147/08, Jürgen Römer v Freie und Hansestadt Hamburg [11] Case C-673/16, Relu Adrian Coman v Inspectoratul General pentru Imigrări and Ministerul Afacerilor Interne [12] EG: Case C‑81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării; Case C-507/18, NH v Associazione Avvocatura [13] Solanke, ‘Where Are the Black Judges in Europe?’ (2019) 34 Connecticut Journal of International Law 287 [14] Howard, ‘EU Anti-Discrimination Law: Has the ECJ Stopped Moving Forward?’ (2018) 18 International Journal of Discrimination and the Law 60 [15] Howard, ‘EU Anti-Discrimination Law: Has the ECJ Stopped Moving Forward?’ (2018) 18 International Journal of Discrimination and the Law 60 [16] Schiek, ‘On Uses, Mis-Uses and Non-Uses of Intersectionality Before the Court of Justice (EU)’ (2018) 18 International Journal of Discrimination and the Law 83 [17] Howard, ‘EU Anti-Discrimination Law: Has the ECJ Stopped Moving Forward?’ (2018) 18 International Journal of Discrimination and the Law 60 [18] Howard, ‘EU Anti-Discrimination Law: Has the ECJ Stopped Moving Forward?’ (2018) 18 International Journal of Discrimination and the Law 60 [19] Bell, ‘EU Anti-Discrimination Law: Navigating Sameness and Difference’ in Craig and De Búrca (eds.), The Evolution of EU Law (3rd edn, Oxford University Press 2021) 675
Cases Mentioned:
Case C-80/70, Defrenne v Belgian State; Case C-43/75, Defrenne v Sabena (No 2) (1976)
Case C-507/18, NH v Associazione Avvocatura
Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV
Case C-83/14, "CHEZ Razpredelenie Bulgaria" AD v Komisia za zashtita ot diskriminatsia
Case C‑201/13, Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen
Case C-157/15, Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV
(Joined) Cases C-804/18 and C-341/19, IX v WABE eV and MH Müller Handels GmbH v MJ
Case C-443/15, David L. Parris v Trinity College Dublin
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