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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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– Agnete Andersen, Ruth Nielsen and Kirsten Precht ‘Ligestillingslovene med kommentarer’, 6. Udgave, Bind II, Ligebehandlingsloven, ligelønsloven, barselloven, barselsudligningsloven og loven ligebehandling mht. pension, forsikring og lignende finansielle ydelser, Copenhagen 2009 (forthcoming).

A commentary in Danish to the Discrimination Act:

– Yvonne Frederiksen and Mads Krarup: Lov om forbud mod forskelsbehandling på arbejdsmarkedet - med kommentarer, Copenhagen 2008.

In English there is:

– Lynn Roseberry ‘Religion, ethnicity and gender in the Danish headscarf debate’ in Dagmar Schiek and Victoria Chege (eds.) European Union NonDiscrimination Law: Comparative Aspects on Multidimensional Equality Law, London 2008.

11. Further research There is a need for clarification of the relationship between the existing antidiscrimination directives, Article 21 in the EU Charter on Fundamental Rights, ILO Convention 111 and national law, not least in relation to protection against discrimination on grounds of political opinion.

–  –  –

1. Concept of multiple discrimination in legislation The concept of multiple discrimination is not explicitly regulated in statutory legal instruments in Estonia.

2. Case law No case law on gender-related multiple discrimination currently exists in Estonia.

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

No information is available on cases where gender-related multiple discrimination would have been dealt with under the other discrimination grounds.

46 Multiple Discrimination in EU Law

4. Proof and procedural problems Legislation does not at present address issues of proof and procedure in a different way with regard to cases of multiple discrimination. This issue has not yet emerged in practice, and no relevant case law exists.

However, the question of proof and procedural issues may arise with regard to the fact that the scope of protection for different grounds of discrimination is different.

According to the Gender Equality Act (hereinafter GEA), the principle of equal treatment on the grounds of sex applies to all areas of social life, except to professing faith or working as a minister in a religious organisation and in family and private life (Article 2). On 1 January 2009, the Equal Treatment Act (hereinafter ETA) came into force. The ETA provides protection against discrimination on the grounds of race, ethnic origin, colour, religious or other beliefs, age, disability and sexual orientation.

The main purpose of the Act was to transpose Directives 2000/43 and 2000/78. The scope of the protection provided corresponds to that of the Directives. Therefore, discrimination on the grounds of race or ethnic origin is prohibited beyond the field of employment, while discrimination on other grounds, i.e religious or other beliefs, age, disability and sexual orientation, is prohibited only in employment-related areas.

Therefore, it is unclear whether and to what extent persons are protected against discrimination on the latter grounds. According to Estonian constitutional theory, fundamental rights have to be applied between private persons.26 This implies that in cases where the alleged discrimination takes place outside the areas regulated by the ETA, the principle of equal treatment has to be observed. Nevertheless, it is unclear to what extent the concepts of discrimination and corresponding principles as established under the ETA can be applied by recourse to analogy in such cases. Even if the substantial principles can and should be applied analogously, it is doubtful whether the procedural principles, such as the principle of shared burden of proof, can be applied in areas not explicitly regulated by the ETA. This means that in cases of multiple discrimination, where different grounds intersect and the scope of protection of the respective grounds is different, it might be difficult to apply the principle of shared burden of proof.

5. Description of a specific case No case law exists on gender-related multiple discrimination.

6. Effects of legislation and case law in practice No information is available on the legal aspects of multiple discrimination in Estonia.

A few studies were carried out under the auspices of the European Year of Equal Opportunities, investigating the sociological aspects of multiple discrimination.27 Article 19 of the Estonian Constitution stipulates the following: ‘Everyone has the right to free selfrealisation. Everyone shall honour and consider the rights and freedoms of others, and shall observe the law, in exercising his or her rights and freedoms and in fulfilling his or her duties.’

The following studies addressing the issue of multiple discrimination were carried out:

M. Lagerspetz et al. Isiku tunnuste või sotsiaalse positsiooni tõttu aset leidev ebavõrdne kohtlemine:

elanike hoiakud, kogemused ja teadlikkus: uuringuraport (Unequal treatment on personal characteristics or social position: expectations, experience and awareness of persons: report of the

study), Tallinn, 2007. Available at:õisõtsiaalsepositsioonitõttuasetleidevebavõrdne kohtlemine_Uuringuraport/$file/Isiku%20tunnuste%20või%20sõtsiaalse%20positsiooni%20tõttu% 20aset%20leidev%20ebavõrdne%20kohtlemine_%20Uuringuraport.pdf (in Estonian, accessed 22 February 2009); M. Tali et al. Naised Eesti mustlaskogukondades, uurimuse aruanne (Women in

Estonian Roma communities, a report of the study), Tallinn, 2007. Available at:

–  –  –

7. Role of equality bodies No information is available on opinions delivered by equality bodies in cases concerning gender-related multiple discrimination.

The Gender Equality Commissioner (since 1 January 2009 ‘Gender Equality and Equal Treatment Commissioner’) has pointed out that she has not yet handled any cases concerning multiple discrimination, although she intends to look into this issue more thoroughly in the future.28 As of 1 January 2009, the Commissioner has the power to also supervise the requirements of the Equal Treatment Act. This should make the powers of the Commissioner to tackle the issue of multiple discrimination more effective, as in addition to gender inequality she now has the competence to address discrimination on the grounds of race, ethnic origin, colour, age, disability, religion and beliefs and sexual orientation.

The Chancellor of Justice has pointed out the effects of the provisions of the ETA with regard to multiple discrimination. As noted above, discrimination on the grounds of gender and race or ethnic origin is prohibited beyond the field of employment, while discrimination on the grounds of age, disability, religion and belief and sexual orientation is prohibited in employment-related areas only. The Chancellor of Justice pointed out in his letter to the Constitutional Affairs Commission of Parliament that the different scope of protection makes it more difficult to address cases of multiple discrimination. However, Parliament did not follow the recommendations of the Chancellor of Justice when adopting the ETA.

The role of the equality bodies could be considerable in tackling multiple discrimination.

According to the ETA, the Gender Equality and Equal Treatment Commissioner has the power to monitor the fulfilment of the requirements of the ETA and GEA; to analyse the impact of laws on the situation of men and women and persons who have certain characteristics as provided in Article 1 of the ETA (i.e. race, ethnic origin, colour, age, disability, religion or belief, sexual orientation); to make proposals to the Government, government agencies, local governments to amend laws etc. (Article 16 of the ETA). The Commissioner has made some recommendations regarding the need to amend laws to address certain issues that have emerged in practice (such as an amendment to the Labour Contracts Act which would prohibit questions to the job applicant regarding his or her civil status and children, and the need to amend the powers of the Commissioner to carry out her tasks).

Further, the Chancellor of Justice has the power to promote equality and the principle of equal treatment. To this end, the Chancellor of Justice has inter alia the following responsibilities: to analyse how the implementation of the legal acts influences the members of society and to make proposals to Parliament, the$file/Naised %20Eesti%20mustlaskogukondades_uuringuraport.pdf (in Estonian, accessed 22 February 2009);

S. Anspal, E. Kallaste Vähemusrahvustest naiste olukord Eesti tööturul (The situation of women belonging to national minorities in Estonian labour market) – Poliitikauuringute keskus Praxis,

Tallinn, 2007. Available at:ähemusrahvustestnaisteolukordtooturul/$file/Vähemusrahvu stest%20naiste%20olukord%20tööturul.pdf (in Estonian, accessed 22 February 2009).

Presentation by the Gender Equality Commissioner at seminar ‘Rights of national minorities, civil society and actual problems in the fight against discrimination’, 21 November 2008, Tallinn.

48 Multiple Discrimination in EU Law Government, state agencies, local governments and employers to amend legal acts.

However, in practice, these tasks are interpreted in line with the other tasks of the Chancellor of Justice to monitor the compliance of legislative acts with the Constitution.

8. Reinforcement of legal approach at EU level necessary?

Two aspects of concern could be addressed to strengthen the existing legal protection at the EU level.

Firstly, as noted above, the different scope of protection for different grounds of discrimination makes it more difficult to effectively tackle discrimination. It is difficult to see any justification for discrimination on some grounds being prohibited only in the field of employment. The different standards of protection also make the enforcement of the principle of equal treatment more difficult in cases of multiple discrimination. Therefore, the review and amendment of the respective EU legislation is necessary to harmonize the scope of protection for the different grounds of discrimination as far as possible.

Secondly, as it is generally recognised that the concept of multiple discrimination has its own legal meaning and particularities, it may be worth regulating the main legal aspects of this concept in legislation. This would make the concept more visible and enhance legal clarity in this field. This would enable persons to more effectively enforce their right to equal treatment.

9. Community-law definition of multiple discrimination necessary?

As pointed out above, it would be advisable to define multiple discrimination in legislation. This would enhance clarity as regards the meaning of the concept and the standards of protection.

10. Available literature or research?

No information is available.

11. Further research Further research on multiple discrimination would appear to be necessary. At the EU level it is necessary to analyse which amendments of the legislative framework could effectively address cases of discrimination and particularly multiple discrimination.

There would also appear to be a need for studies to analyse which forms of multiple discrimination are critical in Europe today and what measures could remedy the problems arising.

At national level the purpose of research ought to be finding out the following:

which forms of multiple discrimination are common in the Member States; what are the effects of existing legislation; and the question whether and what kind of legislative amendments are necessary to prevent or to compensate for the situations of multiple discrimination. As pointed out above, some studies exist in Estonia exploring the sociological aspects of multiple discrimination, but no research has been carried out on the legislative aspects of multiple discrimination.

–  –  –

1. Concept of multiple discrimination in legislation Multiple discrimination is not explicitly prohibited or defined in Finnish legal instruments.

2. Case law No case law seems to exist. Two equality bodies, the Equality Ombudsman, who monitors the Act on Equality between Women and Men (609/1986), and the Minority Ombudsman, who monitors the Non-Discrimination Act (21/2004) as to ethnic origin, have consulted on problems that arise when both gender and ethnic discrimination are involved. A matter that is being handled by several authorities concerns gendersegregated time slots for women only in municipal swimming pools in Helsinki. One motivation behind reserving women-only time slots is that immigrant women would not use swimming halls that are open to both sexes. The case was presented both to the Equality Ombudsman and to the Minority Ombudsman, and even to the Parliamentary Ombudsman. In such cases, several authorities may consider that they have a mandate to deal with the matter. In practice, cases are also transferred from one Equality Body to another, if they are clearly misdirected, or if the authority in question considers that the strongest prohibited ground is not the one that she has powers to deal with. In all these cases, discrimination is treated as a single-ground case, involving either gender or ethnic origin.

The occupational safety officials monitor discrimination on other prohibited grounds besides gender and ethnic origin, and even labour market discrimination on the ground of ethnic origin. The occupational safety officials tend to consider discrimination as an issue of violation of labour law, and aggravated cases such as violations of the Penal Code are reported to the public prosecutor. The combination of age and gender seems to come up often in the context of occupational safety officials monitoring the Non-Discrimination Act.

No case law involving several grounds has surfaced to the media or to the higher courts.

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

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