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Discrimination Law Cases and Material, Lecture notes of Microsoft Word Skills

Katholieke Universiteit Leuven Microsoft Word Skills

Notes for exam at Discrimination Law at KU Leuven

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Table of contents:

Non-Discrimination and the ECHR

• ECtHR, Case “Relating to Certain Aspects of the Laws on the Use of Languages in

Education in Belgium” v. Belgium, 23 July 1968.

• ECtHR, Kjeldsen, Busk Madsen and Pedersen v. Denmark, 7 December 1976

• ECtHR, Clift v. United Kingdom, 13 July 2010

• ECtHR, E.B v. France, 22 January 2008

• ECtHR. Nachova and Others v. Bulgaria, 6 July 2005.

• ECtHR, Thlimmenos v. Greece, 6 April 2000.

• ECtHR, D.H. and others v. The Czech Republic, 13 November 2007

• ECtHR, Glor v. Switzerland, 30 April 2009.

• ECtHR, Sejdic and Finci v. Bosnia and Herzegovina, 22 December 2009

Non-Discrimination and EU Primary Law

• ECJ, María Martínez Sala v. Freistaat Bayern, C-85/96

• ECJ, Elisabeta Dano and Florin Dano v. Jobcenter Leipzig, C-333/13.

• ECJ, Roman Angonese v Cassa di Risparmio di Bolzano SpA, C-281/98.

• ECJ, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena, 43/75

• ECJ, Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong

Volwassenen (VJV-Centrum) Plus, C-177/88

• ECJ, Bilka - Kaufhaus GmbH v Karin Weber von Hartz, C-170/84.

Non-Discrimination and EU Secondary Law

• ECJ, Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen, C-267/06.

• ECJ, Jürgen Römer v. Freie und Hnasestadt Hamburg, C-147/08

• ECJ, Centrum voor gelijkeid van kansen en voor racismebestrijding v. Firma Feryn NV,

C-54/07

• ECJ, S. Coleman v. Attridge Law and Steve Law, C-303/06

• ECJ, Tanja Kreil v. Bundesrepublik Deutschland, C-285/98

• ECJ, Seda Kücükdeveci v. Swedex GmbH & Co. KG, C-555/07

• ECJ, Fag og Arbejde (FOA) v. Kommunernes Landforening (KL), C-335/11

Religion

• ECtHR, Dahab v. Switzerland, Decision of 15 February 2001

•ECtHR, Köse and Others v. Turkey, Decision of 4 November 2008.

• ECJ, Samira Achbita v. G4S, Case C-157/15.

• ECJ, Asma Bougnaoui v. Micropole SA, Case C-188/15

• ECtHR, Lautsi v. Italy, Decision of 18 March 2011

• ECtHR, Leyla Sahin v. Turkey, Decision of 2004

Sexual Orientation

• ECtHR, Laskey and others v. the United Kingdom, 19 February 1997.

• ECtHR, K.a. et A.D. c. Belgique, Judgement of 2005.

• ECtHR, Salgueiro da Silva Mouta v. Portugal, 21 March 2000.

• ECtHR, L. and V. Austria, 9 April 2003.

Discrimination Law

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ECtHR, Case “ Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium ” v. Belgium , 23 July 1968.
ECtHR, Kjeldsen, Busk Madsen and Pedersen v. Denmark , 7 December 1976
ECtHR , Clift v. United Kingdom , 13 July 2010
ECtHR, E.B v. France , 22 January 2008
ECtHR. Nachova and Others v. Bulgaria , 6 July 2005.
ECtHR, Thlimmenos v. Greece , 6 April 2000.
ECtHR, D.H. and others v. The Czech Republic, 13 November 2007
ECtHR, Glor v. Switzerland , 30 April 2009.
ECtHR, Sejdic and Finci v. Bosnia and Herzegovina , 22 December 2009

Non-Discrimination and EU Primary Law

ECJ , María Martínez Sala v. Freistaat Bayern, C-85/
ECJ, Elisabeta Dano and Florin Dano v. Jobcenter Leipzig, C-333/13.
ECJ, Roman Angonese v Cassa di Risparmio di Bolzano SpA , C-281/98.
ECJ, Gabrielle Defrenne v. Société anonyme belge de navigation aérienne Sabena , 43/
ECJ , Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus , C-177/
ECJ , Bilka - Kaufhaus GmbH v Karin Weber von Hartz , C-170/84.

Non-Discrimination and EU Secondary Law

ECJ, Tadao Maruko v. Versorgungsanstalt der Deutschen Bühnen , C-267/06.
ECJ , Jürgen Römer v. Freie und Hnasestadt Hamburg , C-147/
ECJ, Centrum voor gelijkeid van kansen en voor racismebestrijding v. Firma Feryn NV , C-54/
ECJ, S. Coleman v. Attridge Law and Steve Law , C-303/
ECJ, Tanja Kreil v. Bundesrepublik Deutschland , C-285/
ECJ, Seda Kücükdeveci v. Swedex GmbH & Co. KG , C-555/
ECJ, Fag og Arbejde (FOA) v. Kommunernes Landforening (KL), C-335/

Religion

ECtHR, Dahab v. Switzerland , Decision of 15 February 2001
(^) ECtHR, Köse and Others v. Turkey , Decision of 4 November 2008.
ECJ, Samira Achbita v. G4S , Case C-157/15.
ECJ, Asma Bougnaoui v. Micropole SA , Case C-188/
ECtHR, Lautsi v. Italy , Decision of 18 March 2011
ECtHR, Leyla Sahin v. Turkey , Decision of 2004

Sexual Orientation

ECtHR , Laskey and others v. the United Kingdom , 19 February 1997.
ECtHR, K.a. et A.D. c. Belgique , Judgement of 2005.
ECtHR, Salgueiro da Silva Mouta v. Portugal , 21 March 2000.
ECtHR, L. and V. Austria , 9 April 2003.

ECtHR, E.B v. France, 22 November 2008 (see infra)
ECtHR, Schalk and Kopf v. Austria , 22 November 2010
ECtHR, X and Others v. Austria, 19 February 2013.
ECtHR, Vallianatos and others v. Greece , 7 November 2013.
(^) ECtHR, Oliari and others v. Italy , 21 October 2015.
Obergefell v. Hodges , 576 U.S. (2015)

Age Discrimination

ECJ , Sabine Hennigs v. Eisenbahn-Bundesamt and Land Berlin v. Alexander Mai , C 297/10 and C-298/
ECJ, Colin Wolf v. Stadt Frankfurt am Main , C-229/
ECJ, Reinhard Prigge and Others v. Deutsche Lufthansa AG , C-447/
ECJ, Torsten Hörnfeldt v. Posten Meddelande AB , case C-141/11.

Positive Action

ECJ, Eckhard Kalanke v. Freie Hansestadt Bremen , C-450/
ECJ, Hellmut Marschall v. Lan Nordrhein-Westfalen , C-409/
(^) ECJ, H. Lommers v. Minister von landbouw, Natuurbeheer en Visserij , C-476/99.
ECJ, Katarina Abrahamsson and Leif Anderson v. Elisabet Fogelqvist , C-407/
ECJ, Pedro Manuel Roca Alvarez v. Sesa Starts Espana ETT SA , C-104/

Disability

ECJ, Chacón Navas v. Eurest Colectividades SA , C-13/
ECJ, S. Coleman v. Attridge Law and Steve Law , C-303/
ECJ, HK Danmark v. Dansk Arbejdsgiverforening , C-335/11 and C-447/
-.ECJ, Fag og Arbejde (FOA) v. Kommunernes Landsforening (KL) , C-335/

Non-Discrimination and Hate Speech

ECtHR, Jersild v. Denmark , Judgement of 23 September 1994
ECtHR, Gündüz v. Turkey , Judgement of 4 December 2003
(^) ECtHR, Willem v. France, Judgment of 16 July 2009
ECtJR, Féret v. Belgium , Judgement of 16 July, 2009
ECtHR, Aksu v. Turkey , Judgement of 27 July 2010

The Aims of Discrimination Law

Neutrality, Individual autonomy, Human Dignity, Compensation of past discrimination, Distributive justice.

There are three phases in Discrimination law

The Constitutional Principle of Equality 1.a.Sources from Domestic constitutions and general human rights instruments.

2. When are they protected?

1.f. Material scope of application 1.g. Public and/or private sphere? 1.h. In which contexts (employment, goods and services, education, …)? 1.i. Independent or accessory character?

3. What is the scope of protection?

1.j. Which types of discrimination are prohibited? 3.i. Direct/indirect discrimination 3.ii. (^) Intimidation 3.iii. Incitement to discrimination 3.iv. … 1.k. To what extent are proactive measures permitted and/or required? 3.v. Reasonable accommodations 3.vi. Positive action

4. How does non-discrimination relate to other rights and interest?

1.l. Can unequal treatment be justified? 1.m. Open or closed systems of justification? 1.n. What happens when the right to non-discrimination clashes with other rights?

5. What legal remedies are available?

1. How Is protected?

Art 14 ECHR
- “ 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 .”
(^) General test for “other status” - I
- “a personal characteristic (…) by which persons or groups of persons are distinguishable from each other”, see (Kjeldsen, Busk Madsen en Pedersen v. Denmark, 1976)

1

Examples of groups that have been discriminated:
- Marital status (Rasmussen v. Denmark, 1984)
- Illegitimacy (Marckx v. Belgium, 1979)
- (^) Trade Union Membership (National Union of Belgian Police v. Belgium, 1975
- Professional Status (Van der Mussele v. Belgium, 1983)
In the case of (Springett and Others v UK, 2010)
- “The Court does not consider that the fact of having, or not having, acquired a right to a welfare benefit can be considered to be an aspect of personal status within the meaning of Article 14. Unlike the principal grounds set out in Article 14, such as “sex”, “race” or “colour”, it is not an innate characteristic which applies from birth. Furthermore, unlike “religion”, “political or other opinion” or even place of residence, the fact of having acquired a right to a benefit does not relate to a core or personal belief or choice.”
Example of who’s protected by ECHR
- Example: Sexual orientation ■ Dudgeon v. U.K., 1981 ■ da Silva Mouta v. Portugal, 1999 ▲ The children should grow up in a traditional Portuguese family. The court said: “It is not our task to determine whether homosexuality is or is not an illness or whether it is a sexual orientation towards persons of the same sex. In both cases it is an abnormality and children should not grow up in the shadow of abnormal situations” ■ L. and V. v. Austria, 2003 ▲ “differences based on sexual orientation require particularly serious reasons by way of justification” ■ Laskey, Jaggerd en Brown v. U.K., 1997 ■ K.A. and A.D. v. België, 2005

2. When are we protected?

Negative obligation to respect
Positive obligation to protect
- E.g.: Marckx v. Belgium, 1979
- (^) E.g.: Nachova v. Bulgaria, 2004 ■ “When investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events.”
Art 14: No horizontal effect
International Convention on the Elimination of All Forms of Racial Discrimination (1966)
- Art 2, d): “Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization.”

Belgian Linguistics case, 1968
- “when it is clearly established that there is no reasonable relationship between the means employed and the aim sought to be realised”
Nationality Discrimination
Article 18 TFEU (old Article 6 EEC)
- “ Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination .”
- - “ any discrimination on grounds of nationality ” ■ => open-ended formulation
- (^) - “ without prejudice to any special provisions contained therein ” ■ => provisions on the free movement of goods, persons, services and capital
Who is protected?
- - personal scope of application limited (e.g. third-country nationals and internal situations excluded/reverse discrimination)
- - from economically active EU citizens to all citizens of the Union who lawfully reside on the territory of another Member State ■ => Article 20 TFEU: “ Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: the right to move and reside freely within the territory of the Member States. (…)” ■ E.g. María Martínez Sala , C-85/96 (para: 61-63)

“ As a national of a Member State lawfully residing in the territory of another Member State, the appellant in the main proceedings comes within the scope ratione personae of the provisions of the Treaty on European citizenship. Article [20(2)] of the Treaty attaches to the status of citizen of the Union the rights and duties laid down by the Treaty, including the right, laid down in Article [18] of the Treaty, not to suffer discrimination on grounds of nationality within the scope of application ratione materiae of the Treaty .”

Material scope of application: “ within the scope of application of the Treaties ”
Article 18 also applies in the horizontal relations ( Angonese )
(^) The case Dano v. Jobcenter Leipzig , tells us that:
- Article 18 TFEU interpreted in light of equal treatment rule in Article 24 of Directive 2004/38 on the rights of EU Citizens to move and reside freely within the MS
- If persons do not meet conditions set out in Article 9 of Directive 2004/ (not sufficient resources to meet his own basic needs), he/she does not fall within the scope of Article 24 of the Directive => he/she cannot claim equal treatment
In the case of Angonese (Indirect discrimination):
- “ It should be recalled that the principle of non-discrimination prohibits not only direct discrimination on grounds of nationality but also all indirect forms of discrimination which, by the application of other criteria of differentiation , lead in fact to the same result. Unless objectively justified and proportionate to the aim pursued, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect

nationals of other Member States more than nationals of the host State and there is a consequent risk that it will place the former at a particular disadvantage .” ( Bressol , C-73/08, 40-41)

(^) Equal Pay/Gender Discrimination – Article 157(1) TFEU
Article 157 (old Article 119 ECC)
- “ 1. 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
- 2. For the purpose of this Article, ‘pay’ means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.
- “3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.
- 4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.”
Article 157 (1) TFEU – developments
- ECJ landmark judgments (e.g. Defrenne v. Sabena)
- (^) Secondary legislation ■ Directive 76/207 (Employment) ■ Directive 79/7 (Social Security)
- In para. 40 it says: ■ “ [T]he principle of equal pay contained in Article 119 may be relied upon before the national courts and that these courts have a duty to ensure the protection of the rights which this provision vests in individuals , in particular as regards those types of discrimination arising directly from legislative provisions or collective labour agreements, as well as in cases in which men and women receive unequal pay for equal work which is carried out in the same establishment or service, whether private or public .”
- Who is protected and when are we protected? ■ Personal scope of application not limited (e.g. also third-country nationals) ■ Personal scope of application: Broad interpretation of the notion ‘sex’? ▲ - e.g. P v S and Cornwall County, C-13/94 (gender reassignment covered) ▲ - e.g. Grant , C-249/96 (sexual orientation not covered) ■ - material scope of application limited to “pay”, employment in general, social security (and, since 2004, access to public goods and services)
- What is the scope of protection? ■ (^) Direct discrimination ▲ openly based/causal relationship ▲ unfavourable treatment ▲ comparator ▲ (exception ECJ, Dekker , C-177/88)

■ “ It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified economic grounds. ■ If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking , are appropriate with a view to achieving the objectives pursued and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of Article 119 .”

(ECJ, Bilka , C-170/84, 36).
The Charter of Fundamental Rights
Chapter III on Equality – Articles 20-
(^) Article 21 ■ “ 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. ■ 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited .”

Non-Discrimination in EU Law: The Equality Directives

Overview

Introduction
Personal scope of application
Material scope of application
Forms of discrimination 4.a. Justification 4.b. Evidential and enforcement issues 4.c. General principle?

1. Introduction

Article 19 TFEU

“ 1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, 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 .”
It´s required that the council acts unanimously. 1

Different steps
From Article 19 TEUF they made 4 main directives that we will focus on:
- Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. ■ (^) Grounds: Racial and ethnic origin
- Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. ■ Grounds : Religion or belief, disability, age and sexual orientation
- Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services. ■ Grounds: Sex.
- Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast)
These directives apply to all, so horizontally and vertical. Both to private employers and public institutions, although the scope is limited.
The directive only applies in these 3 different areas: Employment , goods and services and Welfare system.

2. Personal Scope of Application

Everyone can rely on the directives (Human Rights Approach).
Grounds: closed list:
- Race Directive: racial and ethnic origin
- Framework Directive: religion or belief, disability, age and sexual orientation
- Gender directives: sex
Not included: e.g. nationality, national origin, …
- “ This Directive does not cover differences of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons in the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned .” (Article 3(2) Race Directive)
- Sex: Includes pregnancy or maternity leave
Disability (When are you covered by the application of the word disability???)
“A limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”. Moreover, it must be “probable that it will last a long time”. ■ (ECJ, Chacón Navas , C-13/05)
“It must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.”

4. Forms of Discrimination

Direct discrimination ( E.g. Article 2(2) Race Directive )
- “ Direct discrimination shall be taken to occur where a person is treated less favourably than another is , has been or would be treated in a comparable situation on grounds of [ sex, race, ethnic origin, religion, belief, age, disability, sexual orientation ]” ■ (1) less favourable treatment ■ (2) comparability ■ (3) causation (årsagssammenhæng)
(2) comparability
- Flexible approach: actual comparator (“is treated”), historic comparator (“has been treated”), hypothetic comparator (“would be treated”)
- How? ■ “ [F]irst, it is required not that the situations be identical, but only that they be comparable and, second, the assessment of that comparability must be carried out not in a global and abstract manner, but in a specific and concrete manner in the light of the benefit concerned .” ▲ (ECJ, Römer , C-147/08, 42)
(3) Causation
- Flexible approach: also distinction based on a ground which is indissociable from a protected ground ■ “ If the referring court decides that surviving spouses and surviving life partners are in a comparable situation so far as concerns that survivor’s benefit, legislation such as that at issue in the main proceedings must, as a consequence, be considered to constitute direct discrimination on grounds of sexual orientation, within the meaning of Articles 1 and 2(2)(a) of Directive 2000/78 .” ▲ (ECJ, Maruko , C-267/06, 72).
No need identifiable Victim:
- “ It is true that (…) Article 2(2) of Directive 2000/43 defines direct discrimination as a situation in which one person ‘is treated’ less favourably than another (…) Nevertheless, it cannot be inferred from this that the lack of an identifiable complainant leads to the conclusion that there is no direct discrimination within the meaning of Directive 2000/43. The fact that an employer declares publicly that it will no recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates (…) constitutes direct discrimination. ” ■ (ECJ, Feryn , C-54/07, 22-25).
- Discrimination by association - The law firm she worked in in London - (ECJ, Coleman , C-303/06).
Indirect Discrimination ( (^) E.g. Article 2(2) Race Directive )
- “ indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of [the protected ground] at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary .” ■ 1) apparently neutral provision, criterion or practice ■ 2) particular disadvantage

■ 3) cannot be justified

“ It follows from all the foregoing case-law that, unless objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect migrant workers more than national workers and if there is a consequent risk that it will place the former at a particular disadvantage. (…) It is not necessary in this respect to find that the provision in question does in practice affect a substantially higher proportion of migrant workers. It is sufficient that it is liable to have such an effect .” ■ (ECJ, O’Flynn , C-237-94, 20-21)
Forms of discrimination
Harassment
( e.g. Article 2(3) Framework Directive)
(^) Sexual harassment
( e.g. Article 2(1)(c) Gender Employment Directive)
Instruction to discriminate
( e.g. Article 2(4) Framework Directive)

4.a Justification

Indirect Discrimination => open system
- “ indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary ” ■ E.g. Article 2(2) Framework Directive ■ See also Bilka case
Direct Discrimination => mixed system
- specific, limited possibilities of justifications: ■ genuine occupational requirements ( E.g. Article 4(1) Framework Directive) ■ positive action ( E.g. Article 7(1) Framework Directive) ■ justification religious institutions (Article 4(2) Directive 2000/78) ■ justification of age discrimination (Article 6(1) Directive 2000/78) ■ one sex goods and services justification (Article 4(5) Directive 2004/113) ■ sex as an actuarial factor justification (Article 5 Directive 2004/113)
Genuine occupational requirements ( E.g. Article 4(1) Framework Directive)
- “ Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement , provided that the objective is legitimate and the requirement is proportionate. ”
Justification religious institutions (Article 4(2) Directive 2000/78)

- to provide to ensure that any contractual provisions contrary to the principle of equal treatment are declared null and void ;
- to provide protection against victimization.

4.c General Principle?

“ The principle of non-discrimination on grounds of age must (…) thus be regarded as a general principle of Community law. (…) Consequently, observance of the general principle of equal treatment, in particular in respect of age, cannot as such be conditional upon the expiry of the period allowed the Member States for the transposition of a Directive intended to lay down a general framework for combating discrimination on the grounds of age (…). ” - (ECJ, Mangold , C-144/04, 75-76).
“ For the principle of non-discrimination on grounds of age to apply in a cases such as that at issue in the main proceedings, that case must fall within the scope of European Union law. ” - (ECJ, Seda Kücükdevici v. Swedex , C-555/07, 23)

When are they protected?

Material Scope

Positive action

Introduction: the limitations of formal equality and the anti-discrimination model
- Evidence / individual complaints
- Social pressure
- Remedies limited to individual case
- Comparator / assimilation

Provisions

Article 1(4) of the Convention on the Elimination of All Forms of Racial Discrimination
- (^) “ Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. ”
Article 4 of the Convention of All Forms of Discrimination against Women
- “ 1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

2. Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory. ”
Article 157(4) TFEU
(^) “ With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers. ”
Article 23 of the Charter of Fundamental Rights
“ The principle of equality shall not prevent the maintenance or adoption of measures providing for specific advantages in favour of the under-represented sex .”
Article 3 recast Gender Equality Directive (old Article 2(4))
(^) “ Member States may maintain or adopt measures within the meaning of Article 157 (4) of the Treaty with a view to ensuring full equality in practice between men and women in working life .”
Article 5 Race and 7 Framework Directive
“ With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures to prevent or compensate for disadvantages linked to [the protected grounds] .”
Aims of positive action
(^) Removal of barriers and redressing past disadvantages
Participation, or the representation of the interests of previously excluded groups
Fostering diversity and the creation of role models
Types of positive action
Monitoring ■ An organization should take a proactive step to stop discrimination in their company. They could file report about identifying discrimination, and how they would like to overcome this types of discrimination.
Redefining merit ■ Redefining criteria's that school/companies etc. Makes it easier for people who usually gets discriminated, will have it easier to enter the place. Like saving some spots for Muslims at catholic school. Not only grades will then be important.
Outreaching ■ Outreaching programs and strategies. Companies or people could target and advertise that they don't have any forms of discrimination.
Soft quotas ■ Equally qualified members of the underrepresented group, so that they can become equal.
Strict quotas ■ (^) Consists in members who are not equally qualified to enter the group, so that they can become equal.

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Table of contents:

Non-Discrimination and the ECHR

Non-Discrimination and EU Primary Law

Non-Discrimination and EU Secondary Law

Religion

Sexual Orientation

Age Discrimination

Positive Action

Disability

Non-Discrimination and Hate Speech

2. When are they protected?

3. What is the scope of protection?

4. How does non-discrimination relate to other rights and interest?

5. What legal remedies are available?

1. How Is protected?

2. When are we protected?

Non-Discrimination in EU Law: The Equality Directives

1. Introduction

2. Personal Scope of Application

4. Forms of Discrimination

4.a Justification

4.c General Principle?

When are they protected?

Material Scope

Positive action

Non-Discrimination and the ECHR

Cases: