«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
5. Description of a specific case Given the dearth of pertinent case law in Germany, no specific cases can be described here. In the view of this expert, it may useful to consider the concept of multiple discrimination not by focussing on individual cases, but by looking at the policymaking level (both on the state level and on the institutional level, e.g. in companies, state bodies, etc.). It is submitted here that the particular added value of the concept of multiple discrimination, viz. intersectional discrimination, is that it emphasises that not all women are in the same situation, but that their identities are made up of other 100000005003%26overview=true.htm, accessed 3 March 2009 (press release of the Wiesbaden Labour Court).
58 Multiple Discrimination in EU Law factors as well, which may, or may not, increase their risk of becoming the victim of discrimination. Hence, gender mainstreaming can be targeted much better if these differences between women are taken into account and if, consequently, promotional measures are designed to meet the needs of these particular groups. In the same vein, diversity management policies must always bear in mind that women form at least half of the group sharing a particular characteristic, and that, as a consequence, diversity management strategies must be gender-sensitive to be fully successful.
6. Effects of legislation and case law in practice No surveys regarding multiple discrimination and the effects of legislation are available. The Director of the German Federal Anti-Discrimination Body (Antidiskriminierungsstelle des Bundes) expressed the intention of collecting information on anti-discrimination cases decided by German courts, but no such information has been published so far (the Equality Body was set up in 2007).
Reportedly, a study on the occurrence of discrimination is underway, but again, no results have been published yet.
7. Role of equality bodies The German Federal Anti-Discrimination Body (Antidiskriminierungsstelle des Bundes) has no power to initiate investigations in individual cases of alleged discrimination. It is only empowered to support persons who have contacted it alleging that they have been the victim of discrimination. This support may be in the form of general information on legal remedies, establishing contact of the alleged victim with institutions and providing help and advice. The equality body may also mediate a peaceful settlement between the parties. No such settlements have been reported so far. In the view of this expert, the Federal Anti-Discrimination Body should be more assertive and should make wider use of this latter power. The area of multiple discrimination appears to be particularly useful for such a pro-active approach, because most institutions or NGOs that provide support for alleged victims of discrimination follow the single-ground approach. Hence, they may not have much experience with cases of multiple discrimination, which might reach them in a haphazard way. In contrast, because of its horizontal approach, the Federal AntiDiscrimination Body is particularly well positioned to become the addressee of complaints of multiple discrimination and to develop expertise in this area. Although its activities in individual cases may require confidentiality, this would not prevent the Anti-Discrimination Body from publishing its findings of multiple discrimination (and its methods of determining the characteristics of multiple discrimination and the examination of possible justifications) in a way that respects this confidentiality.
8. Reinforcement of legal approach at EU level necessary?
In the view of this expert, it is too early to discuss ways of strengthening the existing legal protection against multiple discrimination at EU level. At this point, the concept is still too difficult to grasp. In particular, the question of possible justification is unclear (see under 11). At this point in time, it seems more promising to further the exchange between actors in the field of anti-discrimination law concerning their approaches to multiple discrimination, so as to institute a process of mutual learning.
In addition, measures should be taken to make institutional actors (public and private actors in the areas covered by EU anti-discrimination law) more sensitive to the issue of multiple discrimination.
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9. Community-law definition of multiple discrimination necessary?
A community-law definition appears helpful if it clearly distinguishes between the different types of multiple discrimination, which may require different approaches with respect to their determination and possible justification. However, an independent definition makes little sense; if the Community takes up the problem of multiple discrimination, it must deal with the concomitant questions, in particular the occurrence of direct and indirect discrimination on different grounds, justification, proof, procedure, and remedies (including sanctions). For this reason, it seems preferable to adopt a non-binding instrument defining multiple discrimination and to continue research on the issue before enacting legislation.
10. Available literature or research?
No literature or research on multiple discrimination is available.
11. Further research In the view of this expert, further research is necessary as to methods for examining whether multiple discrimination is justified. In particular, it is unclear whether the approach as chosen by German law, i.e. to require that such discrimination must be justified with respect to every ground of discrimination involved, is appropriate or whether it leads to breaking up interconnected factors and hence does not fully grasp the impact of multiple discrimination. If the latter proves correct, methods for establishing a comprehensive understanding of the differentiation and its possible justification must be developed.
GREECE – Sophia Koukoulis-Spiliotopoulos
1. Concept of multiple discrimination in legislation multiple discrimination is not explicitly prohibited in Greek legislation. Neither Act 3304/200542 transposing Directives 2000/4343 and 2000/78,44 nor any other piece of legislation mentions multiple discrimination. This is also true for collective agreements (at least national general collective agreements, which fix minimum standards that are mandatory for all workers under a private-law employment relationship throughout Greece).
2. Case law There does not seem to be any case law which recognizes discrimination on grounds of gender in conjunction with another ground of discrimination. If such case law develops, its added value would appear in both criminal and civil cases. Thus, in criminal cases, multiple discrimination can influence the determination of criminal sanctions. In particular where a minimum and a maximum sanction is provided, e.g. a criminal offence is punished with imprisonment of one to three years or with a fine of EUR 100 to EUR 500, in case of multiple discrimination, the court can impose a more severe sanction than for single-ground discrimination. Moreover, multiple Act 3304/2005 ‘on the application of the principle of equal treatment regardless of racial or ethnic origin, religious or other beliefs, disability, age, or sexual orientation’, OJ A 16/27 January 2005.
Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180, 19 July 2000, p. 22.
Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2 December 2000, p. 16.
60 Multiple Discrimination in EU Law discrimination may constitute more than one offence; in such cases, the criminal sanctions can be imposed accumulatively. In civil cases, the financial compensation consists in payment of the total of the actual damage (e.g. back pay or social benefits, plus legal interest). The added value can consist in the award of a higher compensation for moral damages due to multiple discrimination than for discrimination due to a single ground.
The Ombudsman, who is the Equality Body dealing with discrimination prohibited by Directives 2000/43 and 2000/78, as transposed by Act 3304/2005, and gender discrimination prohibited by Directive 2002/73,45 as transposed by Act 3448/2006,46 has recently successfully dealt with a case which he considered to involve a multiple-discrimination issue.47 More particularly, a joint Ministerial Decision48 provided that working (including self-employed) or unemployed mothers shall be granted places for babies, infants, children and adolescents in crèches, kindergartens and centres for the creative occupation of children, subject to certain conditions, including a means test. This action point was included in the framework of a more general campaign under the title ‘Harmonization of Family and Professional Life’, and in particular in its thematic axis ‘Measures of Support for the Promotion of Gender Equality in Employment’, and was financed by the European Social Fund.
According to the Joint Ministerial Decision, the above action shall be implemented by the ‘Workers’ Social Benefits Organization’ (OEE).49 Consequently, the OEE issued a ‘Call for the Expression of Interest in the Implementation of Actions within the Framework of the Action “Harmonisation of Family and Professional Life”’. This call required, inter alia, that the beneficiaries of the action be Greek nationals or nationals of an EU Member State, a condition that was not laid down by the Joint Ministerial Decision. Following a complaint by an immigrant mother, who was a third-country national, the Ombudsman considered that this condition was incompatible with the character of the said action as part of European policies for promoting the social inclusion of immigrants, and in particular women immigrants, and combating multiple discrimination, and requested the cancellation of this condition. This issue was also raised by trade unions and MPs who tabled a question in Parliament. As a result, a new Call for the Expression of Interest was issued, which included explicitly ‘mothers who are foreigners from third countries and reside legally in Greece’ among the beneficiaries.50 Directive 2002/73/EC, OJ L 269, 5 October 2002, p. 15.
Act 3488/2006 ‘on the implementation of the principle of equal treatment of men and women regarding access to employment, professional training and evolution, terms and conditions of work and other related provisions’, OJ Α 191/11 September 2006.
See the Ombudsman’s Press Release dated 24 September 2008, under the title ‘All foreign mothers legally residing in the country shall be granted benefits by the Workers’ Social Benefits Organisation’: http://www.synigoros.gr/allodapoi/news_archive.htm, accessed 20 February 2009.
Joint Decision of the Minister of the Interior, the Minister of Economy, the Minister of Employment and Social Protection and the Minister of Health and Social Solidarity, No. οικ. 46855/1622 of 26 June 2008, OJ B No. 1186/26 June 2008, as amended by Joint Decision of the same Ministers
No. οικ. 60460/2171 of 28 August 2008, OJ B No. 1739 of 28 August 2008:
http://www.synigoros.gr/allodapoi/news_archive.htm, accessed 20 February 2009.
Οργανισμός Εργατικής Εστίας (ΟΕΕ), a public agency under the supervision of the Ministry of Employment and Social Protection, whose task is to implement social policy for financially weak and socially vulnerable groups and to financially assist the trade union movement. The OEE management board is composed of representatives of the State and employers’ and workers’ organisations; the OEE is financed by workers’ and employers’ contributions: http://www.oee.gr, accessed 20 February 2009.
See http://www.oee.gr/docs/prosklisi_56396_4-9-2008.zip, accessed 20 February 2009.
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3. Any cases where gender-related discrimination is overlooked?
We did not find any judicial decisions where gender-related discrimination was overlooked in favour of another ground of discrimination. However, there is a case that (to our knowledge) has not been ruled on yet, but that is making the headlines and has aroused strong reactions from trade unions and the general public. This case revealed that certain workers, mostly women and foreign women from (new) EU Member States and third countries, are employed in the cleaning sector under conditions of servitude. A Bulgarian woman, employed by one of the many firms which provide, as subcontractors, cleaning services to owners of buildings, to private undertakings and even to undertakings of the public sector, such as hospitals, transport companies etc., had become secretary general of a trade union of the cleaning sector whose members are women and was very active in fighting for the rights of her colleagues. She and her union publicly declared that these subcontractors violate collective agreements and legislation regarding minimum wages, hours, health and safety and other conditions of work, including dismissal, social security legislation and the right of association; that they use all kinds of pressure, blackmail and harassment and try to silence the workers by dismissing and blacklisting those who claim their rights or disclose their working conditions. They also declared that the main victims of these practices are foreign women who are under the constant fear of deportation, and drew attention to practices of deceit of the Labour Inspection. In December 2008, this woman was attacked by individuals who soaked her in vitriol.
She is still in hospital, suffering from serious injuries.
This case and the cases of women who are in a similar situation seem to be dealt with as issues of gross violations of labour and social security law and uncontrolled flexibilization/deregulation of working conditions, in conjunction with intimidation, blackmail and attempts against the (physical and mental) integrity of the workers concerned, coupled with the inadequacy of controlling mechanisms,51 not as an issue of multiple discrimination.