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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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The Discrimination Board imposed a conditional fine to the municipality of Enontekiö in a recent case concerning discrimination against the Sami.29 The Minority Ombudsman had asked the Board to decide whether the municipality had arranged day care for children, health services, services to the elderly and basic education in a manner that violates the Non-Discrimination act and the Act on Sami Language. The Minority Ombudsman referred to the Act on Day Care which states that municipalities shall offer day care in three languages: Finnish, Swedish and Sami. The municipality of Enontekiö is in the Sami region, where authorities have a heightened duty to provide services in the Sami language. Thus, the case involved the right to services in a minority language, rather than ethnicity as such. The Discrimination Board considered that the right of the Sami children to receive day care in their own language was not equal to that of children whose mother tongue was Finnish, and therefore the children had been disadvantaged on the ground of their ethnicity. On the other hand, the lack of day care in the languages used by the ‘old’ Finnish minorities of the Sami and Roma have been considered as cases of gender discrimination in the Discrimination Board; decision 17 December 2008.

50 Multiple Discrimination in EU Law context of national reporting to the CEDAW Committee,30 because in practice the lack prevents women (who are considered as the main preservers and transmitter of the ‘mother tongue’ of these groups between generations) from accepting gainful employment. This aspect of the case was not considered by the Discrimination Board.

The municipality has brought the decision of the Board before the Administrative Court where it is now pending.

There have been several cases of ethnic discrimination concerning Roma in the caseload of the Minority Ombudsman. A recurring issue has been the clothing of Roma women. Both in employment and in access to services, the specific ethnic dress that Roma women wear has had a role in the alleged discrimination. The Minority Ombudsman is reviewing the cases in order to see to what extent these cases can be considered as multiple discrimination.

Issues of harassment are in practice often treated as violations of the Act on Safety at Work, which also contains a provision against harassment. ‘Harassment’ is thus defined as a threat to occupational safety, rather than discrimination, which is a violation of human or fundamental rights. It seems that cases of occupational ‘harassment’ very often involve at least one dimension that could be defined as sexual harassment or harassment on the ground of sex. Here, the fact that monitoring is done by the Safety at Work officials has an impact on the outcome. These officials have an organisation on the local level, whereas the equality bodies only have an office on the national level. While the occupational safety authorities may have more effective access to the work place conflicts, they have little experience about discrimination or protection of civil or human rights. Harassment as an occupational safety issue includes many types of behaviour such as bullying, but only if it presents a health hazard.

4. Proof and procedural problems So far, as no cases have appeared to test procedural or evidence problems in courts, what can be said is based merely on legal definitions, preparatory works for the Act on Equality, and legal doctrine. It can be difficult to find a comparator in cases involving several prohibited grounds. The definition of direct discrimination under the Act on Equality involves comparison, as direct discrimination means ‘1) treating women and men differently on the basis of gender, or 2) treating someone differently for reasons of pregnancy or childbirth’. Where pregnancy and childbirth is in question, a comparator has not been considered necessary. In the preparatory works for the amendment of the Act of 2005, it was clearly stated that recognition of pay discrimination does not always require a concrete comparator that would have been treated better. Nor is a comparator necessary in order to prove discrimination as to other conditions of employment.31 The wording of the provision on pay and other conditions of employment under Section 8(1)3 defines discrimination on these grounds as a situation where an employer ‘implements conditions of pay and other conditions of employment in such a way that one or more employees find themselves in a less favourable position than one or more other employees in the employer’s The latest report for Finland was presented in 2008, see UN Committee on the Elimination of Discrimination against Women 42st Session: Finland, combined 5th and 6th report, 9 July 2008.

Also the UN Committee on the Cultural, Economic, and Social Rights, Consideration of reports

submitted by State Parties under Articles 16 and 17 of the Convention. Concluding Observation:

Finland, 38th session, 18 May 2007, para 13, 14, 22 and 23, E/C.12/CO/FIN/5.

Committee Report 2002:9, 79, K. Ahtela et al. Tasa-arvo ja yhdenvertaisuus, Talentum Helsinki 2006, p. 120.

Multiple Discrimination in EU Law 51 service performing the same work or work of equal value’. The wording was selected such that it is up to the claimant to choose the comparator, and it is enough to find a comparator that is of the opposite sex and is paid more for the same work or work of equal value.32 Whether a claimant who claims discrimination on grounds of ethnicity and gender is able to present a comparator within these parameters as easily as a person claiming discrimination on the single ground of gender is an open question.

5. Description of a specific case No such case can be presented.

6. Effects of legislation and case law in practice Information regarding multiple discrimination can be found in the national CEDAW reporting referred to under 3.

7. Role of equality bodies The on-going review of the equality legislation has certainly brought the issue more to the fore, because a better way of handling cases of multiple discrimination is one of the aims of the review. The equality bodies are not unaware of the problem of multiple discrimination. They do confer with each other on the issue, and last year the Equality Ombudsman organised a seminar on multiple discrimination.33 The Ombudsman stated that the topic was little known in Finland, and that she wanted to learn about it, rather than direct others on the issue.

8. Reinforcement of legal approach at EU level necessary?

A legal approach at EU level could be useful or even necessary. The problems of less than harmonised legal provisions on various grounds of discrimination, as well as the strong emphasis on a suitable definition of multiple discrimination, could and probably should be solved at EU level. Merely combining the tasks of specific equality bodies into a single equality body could, in the worst case, reduce the resources that are available for the specific grounds, especially gender, where previously specific bodies for gender existed, and still not offer any tenable remedies or appropriate sanctions in cases of multiple discrimination.

9. Community-law definition of multiple discrimination necessary?

A Community-law definition (which should be able to deal with the problems caused by the required comparator) would probably help to strengthen the national legal protection.

10. Available literature or research?

– K. Nousiainen ‘Utility-based equality and disparate diversities’ in: D. Schiek and V. Chege (eds) European Union Non-Discrimination Law. Comparative Ahtela et al., p. 122. The writers note, however, that the Supreme Administrative Court used a different reasoning in case KHO T 1902, Dnro 3772/03 in 2005. It no longer seems quite obvious that the alleged victim of employment discrimination chooses the comparator, not the employer.

The seminar was the annual thematic seminar organised by the Equality Ombudsman on 30 October

2008. The choice of subject was, according to the Ombudsman, motivated by the fact that the issue of multiple discrimination is on the agenda of the Equality Committee, which is nominated to propose a reform of equality legislation; see http://www.tasa-arvo.fi/Resource.phx/tasa-arvo/ moniperusteinensyrjinta.htx, accessed 16 April 2009.

52 Multiple Discrimination in EU Law Perspectives on Multi-Dimensional Equality Law pp. 187-214 London 2008 considers multiple discrimination based on gender and ethnicity in Finland.

– J. Kantola and K. Nousiainen, ‘Pussauskoppiin? Tasa-arvo-ja yhdenvertaisuuslakien yhdistämisestä’, Naistutkimus – Kvinnoforskning 2/2008 pp. 6-20, discusses the on-going reform of equality legislation also from the point of view of multiple discrimination.

11. Further research Further research is certainly needed. Not only combating multiple discrimination by prohibition, but also by taking positive measures aimed at reducing multiple discrimination should be studied. Research should seriously study the point presented by the Commission’s communication (COM (2008) 420 final) that attention should be paid to the need to ‘tailor’ the approach to the combat of discrimination on various grounds, due to the fact that the grounds and structures that uphold discrimination differ.

FRANCE – Sylvaine Laulom

1. Concept of multiple discrimination in legislation French employment law prohibits various grounds of discrimination and the list of these prohibited types of discrimination is longer than the one provided by the European directives. Currently, the prohibited grounds for discrimination listed in Article L1132-1 of the Labour Code comprise: origin, sex, sexual orientation, lifestyle, age, family status, pregnancy, genetic features (actual or assumed), belonging to an ethnic group, nation or race, political opinion, trade union activities, religious belief, physical appearance, name, state of health and disability.

As such, multiple discrimination is not explicitly prohibited in France and until now there has been no debate on the question of multiple discrimination, at least, not among lawyers. For example, there have been no articles in legal reviews on this issue. French law has not addressed multiple discrimination until now.

One of the questions to be raised could be whether the current legal framework is consistent with the fight against that specific form of discrimination. It could be argued that the French anti-discrimination legislation could address the issue of multiple discrimination. Generally, despite the existence of specific provisions relating to certain grounds of discrimination, French anti-discrimination legislation cannot be considered as ground specific and the same principles apply for every form of discrimination: direct and indirect discrimination are prohibited, specific sanctions apply with regard to discriminatory acts and the French equality body, the HALDE, has the responsibility to cover all grounds of discrimination and thus it should be able to address multiple discrimination. The way Article L1132-1 of the Labour Code is written seems to allow to combine the grounds of discrimination. Some grounds include certain overlap and this could also be favourable for a multiple discrimination claim. However, in practice, multiple discrimination issues are not raised or complaints brought before the tribunals and the HALDE tends to focus on one ground of discrimination.

2. Case law A review of the cases of the Cour de cassation reveals that the most common approach to discrimination claims is one that tends to focus on a single ground. One Multiple Discrimination in EU Law 53 of the reasons could be that for pragmatic reasons, claimants or their lawyers may prefer to choose one ground of discrimination because it is the easiest to prove or it is the one that tribunals are more familiar with. The process of selecting the discrimination ground may also be made by the court itself.

Between 2001 and 2009, out of some 600 judgments relating to discrimination claims, only 6 judgments could be found referring to more than one ground of discrimination34 and 4 cases are about sex and one other ground of discrimination (trade union activity or race).35 Those judgments are not considered ‘important’ cases of the Cour de cassation since they were neither published nor the subject of legal comment. They are very short decisions, not well motivated and thus difficult to analyse. Thus they could not be analysed as recognizing multiple discrimination and it is not possible to draw any general conclusions concerning the judicial approach to multiple discrimination. They merely indicate that it is possible to bring a case based on more than one ground of discrimination and that courts are capable of dealing with such claims.

In one case,36 the two grounds are dealt with separately. The court found a discrimination based on sex, and more precisely on pregnancy. The worker did not have the chance to be evaluated for a promotion as she was on a maternity leave. But the discrimination on trade unionism was not admitted because the Court of Appeal failed to analyse if the change in working conditions was justified by an objective aim. Referring to the definitions given by the report ‘Tackling Multiple Discrimination. Practices, policies and laws’, the case was not about a compound discrimination but a multiple discrimination defined as a situation where discrimination takes place on the basis of several grounds operating separately. Also, there was not really an interaction of grounds of discrimination or an addition of grounds of discrimination.

In the three other cases, the two grounds (sex and race or sex and trade unionism) are not addressed separately and no discrimination is found. In these cases, a comparison is made between the situation of the women and the position of other workers to conclude that there were no discrimination, in two cases because the difference was justified by the employer and, in the other, because the woman who asserts discrimination ‘for example on the ground on sex or race’ could not prove that there was any difference. The courts clearly do not distinguish between the grounds of discrimination and they seem to treat the two asserted grounds of discrimination as one ground of discrimination. It could be argued that here courts could treat multiple discrimination as a specific type of discrimination and not as an addition of two discrimination which should be treated differently.

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