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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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10. Available literature or research?

There is no such literature known, at least as regards the legal aspect of multiple discrimination. There are only a few sociological studies, not primarily focused on

multiple discrimination:

– A. Krchová and H.Víznerová Diskriminace azylantů a azylantek v ČR z genderové perspektivy (Discrimination of asylum seekers from the gender perspective), Evropská kontaktní skupina v ČR, Prague 2008.

– J. Hasmanová Marhánková ‘Genderové ‘Nerovnosti ve stáří: marginalizace a zvýhodnění žen ve stáří’ (Ageing as a Gendered Experience: Marginalization and the Agency of Ageing Women), Gender a sociologie No. 2/2008.

11. Further research From the Czech point of view, further research on multiple discrimination is certainly highly recommended at the national level. It would be interesting and useful to see whether there would be room within the Czech legal system to introduce multiple discrimination as a term and to penalize it when it occurs, possibly by multiplying the fine when multiple discrimination happens. As regards the European level, it remains to be seen in which way it would be possible to introduce the concept of multiple discrimination into EC law, so that this concept could appear sooner or later at the national level as well. More legal rather than political research should be conducted in this regard. Another very important question that could be discussed in further research would be to focus on the grounds of discrimination and their combination where multiple discrimination happens. Bearing in mind that gender has always played a special role in discrimination disputes, it would be of importance to see whether multiple discrimination with a gender aspect should be seen as a special type of multiple discrimination and therefore tackled in a special, and possibly stricter, way, or not.

DENMARK – Ruth Nielsen

1. Concept of multiple discrimination in legislation There is no definition of multiple discrimination in Danish legislation. At present (February 2009), an amendment to Section 56 of the Administration of Justice Act which involves multiple discrimination is in the process of being adopted, see below.

At present, there are no female judges in Denmark wearing hijab during hearings but the possibility that some Muslim female judges might want to do so in the future led to public debate in the autumn of 2008. On 19 December 2008, the Government proposed an amendment to the Administration of Justice Act, prohibiting judges from exhibiting any religious or political symbols or views in the courtroom during hearings.18 In the new version, Section 56 of the Danish Administration of Justice Act will read: ‘A judge must not appear in hearings in a manner that is likely to be perceived as a statement concerning any religious or political affiliation or a statement on his or her position on religious or political issues in general.’ In the preparatory works, the Ministry of Justice, on behalf of the Danish Government, explains that the proposed ban will include cases where the judge during the hearing visibly wears a Christian cross like a Dagmar Cross or a crucifix, where Available in Danish at the Parliament’s website; http://www.folketinget.dk/Samling/20081/ lovforslag/L98/index.htm, accessed 14 May 2009.

42 Multiple Discrimination in EU Law the judge wears Muslim headgear like the hijab, or where the judge wears Jewish calotte (kippa). Also, the judge must not express any support or criticism of any specific political parties, visibly wear a party badge or anything similar, or express in any way his personal political position on other important community issues, regardless of whether they are international, national or local issues.

In the preparatory works, the Ministry of justice states that the proposal is in accordance with the Danish Constitution, with Article 9 and 10 ECHR and with the Employment Framework Directive.19 The amendment to the Administration of Justice Act is likely to be adopted in April 2009 and enter into force 1 July 2009. The legal interpretations underlying the amendment are in accordance with Danish case law on employers’ rights to prohibit political or religious symbols in headscarf-cases, see below, but that case law is not discussed in the preparatory works to the amendment.

2. Case law In 2007, the Gender Equality Complaints Body (which existed from 2000 to the end of 2008) ruled in a case20 where a woman wearing hijab complained that her job application was rejected because she wore hijab. The employer denied this. He claimed that the reason why she was not offered a job was that the employer had imposed a recruitment stop. The Complaints Body found that the complainant had not sufficiently proved that her wearing a headscarf was the reason why she did not get the job.

In the first Muslim headscarf case to reach the Danish Court of Appeals,21 a school girl brought a religious discrimination claim when a department store, Magasin, refused to allow her to be a trainee in school-practice for a week, because she came to the workplace wearing a headscarf. The department store justified its actions by reference to its guidelines for employees’ dress. The guidelines were vague. They required the staff to be decently dressed. The Court of Appeals held that the department store had violated the Discrimination Act’s prohibition against discrimination on the basis of religion and required the store to pay compensation.

The next headscarf case22 concerned the refusal of a chocolate factory, Toms, to hire a Muslim woman wearing a headscarf to work in their production department, because she could not fit her entire headscarf under a net hat, which the factory required the staff to wear for hygienic reasons. The Court found that hygienic and safety reasons justified the factory’s policy. The claimant appealed the judgment to the Supreme Court, but the parties reached a settlement while the case was still pending.

The third and most important case23 was decided by the Supreme Court in 2005.

In this case, which is discussed in more detail below under 5, a supermarket, Føtex, fired a young Muslim woman when she began to come to work wearing a headscarf four years after she had begun her employment at Føtex. The Danish Supreme Court held that Føtex’s dress code indirectly discriminated against Muslim women who wear headscarves for religious reasons, but that the dress code did not violate the Discrimination Act’s prohibition against discrimination because it was justified by a 2000/78/EC.

Case No. 6/2007.

U 2000, 2350.

Toms Fabrikker, 18 afdeling sag B-0877/00, judgment of 5 April 2001.

U 2005, 1265H.

–  –  –

3. Any cases where gender-related discrimination is overlooked?

Not to my knowledge.

4. Proof and procedural problems There are no particular problems of proof and procedure.

5. Description of a specific case In the following, the Føtex case will be looked into in more detail. The claimant in this case began wearing the Muslim headscarf after she had begun studying the Koran. The defendant was a big multi-ethnic and multi-religious employer with a staff composed of many different ethnic and religious groups.

The employer had a dress code which had been agreed with representatives of the staff in accordance with Danish collective labour law on collaboration. The Court in its reasoning underlined that the contested dress code was not an expression of a unilateral employer decision but that it had been accepted by the staff at a collective level. The claimant in that case therefore did not just oppose her employer but also her fellow workers.

The dress code prescribed that staff with jobs with direct customer contact were obliged to wear a uniform and were not allowed to display religious and political symbols. The claimant in the Føtex case worked in a bakery’s department of Føtex.

The dress code did not apply to certain jobs with low visibility. After the claimant was fired for refusing to remove her headscarf, she was offered a low-visible job in another part of Føtex where she would be allowed to wear the hijab. She refused to accept such a change in her working conditions and regarded herself as dismissed and claimed compensation for unlawful indirect discrimination on grounds of religion in violence of the Discrimination Act.

She could also have claimed unlawful discrimination on grounds of sex under the Equal Treatment Act and unlawful discrimination on grounds of ethnic origin (she was of Moroccan origin) under the Discrimination Act. The claimant did not include gender or ethnic origin in her claims. The Supreme Court did, however, consider the claim of indirect discrimination as indirect discrimination against Muslim women.

The court did not compare the impact of the dress code on all Muslims or all women, but recognised that Muslim women were disadvantaged compared to Muslim men and compared to non-Muslim women.

The purpose of the dress code was, according to the material distributed by the employer to explain it, to ensure that the employees had a neutral and uniform appearance in order to avoid potential conflicts between sub-groups in the staff and between members of the staff and customers. The purpose was thus to promote ‘peace at the workplace’. That is clearly a legitimate aim. It is, for example, contrary to the interests of a Danish employer to have the Palestinian-Israeli conflict reproduced in his workplace in the interaction between Jewish and Palestinian members of staff. In Denmark, most violence against Danish Jews is committed by sub-groups of Muslims.

Many Jews refrain from displaying the star of David in public to avoid provoking emotional reactions. It was the same method of trying to avoid open conflict by keeping a low profile in religious and political matters that was employed in the Føtex dress code. The employer and the staff representatives had in collaboration reached the opinion that the dress code was an appropriate and necessary method to achieve 44 Multiple Discrimination in EU Law peace at the workplace. The court did not go far in reviewing the discretion exercised by the employer in collaboration with the staff at collective level. That is in accordance with the Danish collective labour law tradition.

The employer treated expression of religious and political opinions in the same way. That has been criticised.24 It is, however, in accordance with the Danish Discrimination Act, which gives the same protection against discrimination on grounds of political opinions as on grounds of religious beliefs; see the proposed amendment to the Administration of Justice Act, which also treats political and religious views in the same way. ILO Convention 111 and Article 21 in the EU Charter on Fundamental Rights do the same. When the rule on discrimination on grounds of religious and political views is the same as it is in Denmark, I think it is unlawful to treat a particular religious view better than any political view, unless the conditions of positive action are fulfilled, which they were not in the Føtex case.

Positive action for religious or ethnic purposes is not possible under Danish law.

Positive action on grounds of sex requires an application for and the granting of an administrative exemption.

6. Effects of legislation and case law in practice There are no effects of legislation and case law in practice, apart from what is reported in Tackling multiple discrimination – Practices, policies and laws.25

7. Role of equality bodies By 1 January 2009, a new Equality Complaints Board for all prohibited grounds of discrimination was established. The new Complaints Board deals with discrimination both in employment and in other areas, e.g. the supply of goods and services. The previously existing Complaints Boards for Gender Equality and Ethnic Equality were abolished. Their functions were taken over by the new Complaints Board from 1 January 2009. The new general Complaints Board is modelled on the Complaints Board for Gender Equality. It is – like the previous gender equality complaints board – competent to deal with complaints about discrimination from victims of discrimination. It has no competence to conduct independent surveys concerning discrimination, publish independent reports or make recommendations on any issue relating to such discrimination and it will not be able to start cases at its own initiative. It is therefore not a monitoring body as required by Article 12 of Directive 2004/113 or Article 20 of the Recast Directive (2006/54/EC). As mentioned above under 2, the previous Gender Equality Complaints Board ruled in a headscarf case.

8. Reinforcement of legal approach at EU level necessary?

There is a need for clarification of the relationship between the existing antidiscrimination directives and Article 21 in the EU Charter on Fundamental Rights.

9. Community-law definition of multiple discrimination necessary?

No, the existing provisions are sufficient.

See in particular Lynn Roseberry: ‘Religion, ethnicity and gender in the Danish headscarf debate’ in: D. Schiek and V. Chege (eds.) European Union Non-Discrimination Law: Comparative Aspects on Multidimensional Equality Law London 2008.

http://ec.europa.eu/social/main.jsp?catId=618&langId=en&moreDocuments=yes, accessed 30 March 2009.

Multiple Discrimination in EU Law 45

10. Available literature or research?

There are some articles in Danish:

– Bjørn Dilou Jacobsen Mere om Føtex-sagen, U 2005, B301.

– Kirsten Ketscher Etnisk ligebehandling, religionsfrihed og ligestilling mellem kvinder og mænd - set i lyset af Føtex-sagen, U 2005, B 235.

– Ruth Nielsen Princippet om forbud mod forskelsbehandling pga. alder som et almindeligt EU-retligt princip, U 2006, B 259.

– Lynn Roseberry Tørklædediskrimination på arbejdsmarkedet, U 2004, B189.

The following is a two-volume commentary in Danish on (all) Danish equality laws

on all the prohibited grounds of discrimination and related case law:

– Agnete Andersen, Ruth Nielsen and Kirsten Precht ‘Ligestillingslovene med kommentarer’, 6. Udgave Bind I, Forskelsbehandlingsloven, den etniske ligebehandlingslov, ligestillingsloven, loven om ligebehandlingsnævnet, håndhævelse og generelle spørgsmål, Copenhagen 2008.

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