A critical analysis of the various grounds of discrimination, the regulation thereof and ECJ judgements

Abstract

In the last decade, apart from laws governing the equal treatment of men and women, anti-discrimination legislation has been enacted to ensure minimum levels of equal treatment and protection of all persons working in the EU. By means of the Treaty of Amsterdam, which was adopted unanimously, new powers were granted to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Directive 2000/43 prohibits all forms of discrimination based on race and ethnic origin whilst the Framework Directive 2000/78 prohibits discrimination in employment on the grounds of age, religion or belief, sexual orientation and disability. The two Directives were adopted under Article 19 TFEU (ex Article 13 TEC). Discrimination in employment can of its nature be either direct or indirect. The demarcation line between the two is often unclear and several criteria have to be satisfied to qualify one form from the other. Harassment as well as instructions to discriminate are prohibited and regulated by both Directive 2000/43 and 2000/78. The Directives include also the exceptions to the general rule of prohibition against discrimination. The existence of multiple discrimination though acknowledged is not regulated by the directives. The European Court of Justice has taken different approaches to the different grounds of discrimination in employment. The opinion of the Advocate General differed from that of the European Court of Justice in the recent Coleman vs Attridge case. This case dealt with discrimination by association, on the ground of disability, the European Court of Justice by means of the 9 Coleman Case has widened the scope of the concept of direct discrimination not only in the field of disability but in all the fields of discrimination. The very first ECJ case on discrimination on the grounds of sexual orientation, the Maruko case, was decided by the European Court of Justice very recently. On Gender Equality, which reigns in a field of its own, the ECJ has held that a lower rate of remuneration for overtime than for normal working time can constitute discrimination based on sex. It is worthy to note that on the 5th March 2010 EU Commissioner Vivien Reding presented a Women's Charter emphasizing the Commission's pledge to combat inequalities between the sexes. The Charter presents a series of commitments based on agreed principles of equality between women and men and the aims of the Charter which for the most part aims at promoting quality in the labour market and equal economic independence for women and men, namely through the Europe 2020 strategy. The shifting of the burden of proof as well as sanctions and remedies for discrimination, are also dealt by the anti-discrimination directives. The European Commission has in 2009 proposed a new horizontal anti-discrimination directive. Nevertheless it seems that this proposal has, for the time being, been shelved. One has to wait and see whether the Commission is going to pursue this proposal further, a proposal which will see a shift in the current hierarchy of the grounds of discrimination in employment as set by the European Court of Justice.