Topic 2 Overview of main aspects and terms of the Race Equality Directive

Individuals can enforce the Race Equality Directive before the courts, administrative authorities, or mediatory or reconciliatory Alternative Dispute Resolution (‘ADR’) bodies.

A duty is thus imposed on the Member States to make available judicial and/or administrative procedures to victims of discrimination nationally.

The judicial proceedings in each Member State can follow a different legal avenue; civil, criminal, labour or administrative.

  1. The European Union has long since established the general principle of non-discrimination as one of the conditio sine qua non for States to accede to the Union itself.
  2. We recall the already mentioned TFE and TFEU to be considered as primary sources in the anti discrimination legislation.
  3. Before 2000, the EU legislation prohibited discrimination only  based on sex (EU Directive 76/207/EEC) and in the employment and social security fields (EU Employement Equality Directive) .
  4. The Race Equality Directive, adopted in 2000, covers a broader subject including social assistance, security and access to supply of goods and services. It refers to direct and indirect discrimination, as well as harassment and instruction to discriminate.

Art. 1: The purpose of the Directive is “to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment”.

  • Art. 3: The Directive applies to ’all persons, as regards both the public and private sectors, including public bodies’

Art. 4: The Race Equality Directive (Directive 2000/43/EC) prohibits discrimination on the grounds of race and ethnic origin. The directive does not cover differences of treatment based on nationality and statelessness and does not address matters of immigration law.

Under this Directive, the Member States must:

  1. provide for a higher level of protection against discrimination in national legislation;
  2. have, or create, a specialised body for the promotion of equal treatment on grounds of race and ethnic origin.

 

The Directive covers different fields; namely:

  • employment & occupation
  • vocational training
  • membership of employer and employee organisations
  • social protection, including social security and health care
  • Education
  • access to goods and services which are available to the public, including housing

 

The Directive faces five main areas:

  • Direct Discrimination 
  • Indirect discrimination 
  • Harassment
  • Victimization
  • Instruction to discriminate.

Happens when one person is treated less favourably than another is, has been or would be treated in a comparable situation on ground of his or her protected grounds (art.2(2) a)

An example of direct discrimination is represented by a company that refuses to hire Roma or Muslim people denying their CV, or hires them with extremely low salary compared to the ones of other employees with the same position.

 

Happens where an apparently neutral provision, criterion, or practice would put persons of a particular racial or ethnic origin at a particular disadvantage compared with other persons (art.2(2)b)

An example of indirect discrimination:  a food factory that does not hire male workers  with beards. This rule is discriminatory toward Sikh men. The reason of the food factory may be legitimate – to avoid hair in the food – The question that has to be posed although is: can that aim be achieved in a non discriminatory manner? Yes, the men with beards shall be hired asking them to wear a type of hair net if or when working with food.

 

Harassment is represented by an unwanted conduct related to a protected ground with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

Even if the purpose is not to harass, a behavior capable to create an hostile environment that violates a person’s dignity is sufficient for a finding of harassment. An example of harassment: a roma worker hired in a fashion company is the target of his co-workers that play on him or her racist jokes at the workplace, or hate speech, or conducts with similar content in general.

Typical scenarios are: racist jokes or stories at the workplace.

Is represented by any adverse measure (treatment or consequence) as a reaction to a complaint or to proceedings where the principle of equal treatment is broken.

An example of victimisation:  is where an employee complains about unequal treatment due to racial discrimination, and the employer  as a consequence dismiss  or fail to promote the employer.

Instruction to discriminate happens when someone gives an order (instructs) someone who is in some way dependent, to discriminate against another person.

An example of instruction to discriminate: where the personnel manager is told not to hire any people of Roma origin.

The Directive also explains how to prove discrimination providing the burdens of proof reversal.

This means that when victims bring, before a court or other competent authority, facts representing episodes of  discrimination, is the respondent that has to prove that there has been no breach of the principle of equal treatment.