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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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Therefore, the multiple (sometimes only potentially multiple) grounds of discrimination could not be reflected in increased sanctions or damages.

No cases are known where multiple discrimination – gender together with another characteristic recognized as the ground of discrimination – would have led to more serious consequences. Although there are many cases, the multiplicity of grounds is never addressed, or it is overlooked. However, this frequently happens because the victim herself fails to include reference to one of the grounds; e.g. discrimination is claimed due to ethnicity or age, while the sex of the victim might have contributed to the discriminatory measure, even if this element remained covered.

‘Compounded discrimination’ is widely known, e.g. in discrimination against Roma women, who are not only discriminated against as Roma, and not only discriminated against within their own ethnic group as women, but rather discriminated against as ‘Roma women’ (e.g. they get even less assistance against domestic violence than the already unsatisfactory assistance provided in cases of violence against women, because the violence is considered to be ‘part of their culture’), or in their discrimination connected to reproductive health problems. This type of discrimination is addressed by politicians in general statements, but not addressed by concrete measures.

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

When both gender and age are raised in the complaint, the ETA more readily accepts discrimination on the basis of age, and the gender aspect usually remains in the background. Again, it is also true that women are more willing to refer to grounds other than that of gender. In one case, a travel agency dismissed three women over fifty. Discrimination on the ground of age was found by the Authority and confirmed by the court. The issue of gender was not considered, although it might have played a role (with special regard to the fact that the pensionable age in Hungary was 55 for women before the pension reform, and thus women over 50 were in the specially protected ‘pre-pension’ age). In another case, No. 57/2006, the representative body of dismissed public employees contacted the ETA, submitting the claim that a collective redundancy measure applied by a certain state agency primarily affected women, 66 Multiple Discrimination in EU Law older employees, and those employees who were raising children as single parents or were taking care of a sick family member. In spite of the lack of proper authorization of the trade union, the ETA carried out an investigation ex officio. On the basis of the data and figures supplied by the employer, the Authority concluded that there was no violation on the basis of any of the grounds mentioned by the trade union.

The slightly hesitant attitude of the ETA towards discrimination on multiple grounds is also clear from the fact that in other cases which involved a double ground (usually a combination of a classic ground and a so-called ‘other ground’), the ETA in most cases found discrimination on the ‘other ground’ and dropped the ‘classic’ (gender) one. Interestingly, however, the case described above appears under both grounds – the accepted and the rejected one – in the Authority’s case-law records, in which cases are classified on the basis of the characteristic that was the ground of the discrimination complaint. (Not surprisingly, the records include no ‘box’ yet for multiple-ground cases.)

4. Proof and procedural problems The burden of proof has not yet been reversed in practice, although this is an explicit requirement in the Equality Act. Although formally the burden of proof is on the discriminating actor, this rule is not applied as strictly as it would be in other cases;

the discriminating actor is required to show a major likelihood of non-discrimination rather than to prove non-discrimination in a way that excludes the opposite. This does not only characterize the Authority, but the courts as well, and is illustrated by the cases described above, where information and data were accepted from the employer with almost no questions asked.

In case 534/2006, a job applicant claimed that she was rejected due to her age and sex. The ETA rejected the claim on both grounds because the employer certified that they had nearly three times as many female employees as male employees, and that there had been no questions in the job application form regarding age.

5. Description of a specific case The ETA issued an interesting decision in case 2076/2007, in which a female employee wanted to resume work in her original executive position during her ‘childcare leave’62 and was rejected with reference to the termination of the position (which proved false later). She was offered a lower position, suggesting that ‘it can be done from home’. She claimed before the ETA that she was discriminated against on the ground of her family status (having two small children). The ETA found discrimination on a double ground, on the basis of family status and on the basis of ‘another ground’, namely her original executive position. This case calls attention to the higher likelihood of being discriminated against on the ground of ‘traditional’ reasons when the victim is in a (higher) position that is not common or regular for her group. In other words, the combination of traditional gender-related grounds (sex, A somewhat peculiar legal situation in Hungary is that, in order to promote the increase of female employees on the labour market, legislation has made it possible for women on ‘childcare leave’ to take a job, either part time or full time, with their original employer or with another employer, thus converting the former income-compensatory childcare allowance into an almost merely financial grant. Still, women retain their status of ‘being on childcare leave’, in the sense that they are protected against dismissal and that they retain their right to return to their original job after the expiry of the childcare leave. Previously, they had the right to work without losing the benefit, but not the right to return to their original job.

–  –  –

6. Effects of legislation and case law in practice No systematic information is available on multiple discrimination in Hungary. There are declarations, plans, programmes – e.g. declaring the importance of discovering facts about multiple discrimination – but no targeted survey has been made public yet.

There are scattered statements about the social facts, mainly the multiple discrimination of Roma women.

In addition to political statements on the importance of the matter, some private individuals and NGOs have published information. NANE and PATENT (two major Hungarian NGOs for the combat of violence against women) published a book on their 2008 litigation cases, which describes a case where sex and health condition were multiple grounds, underlining the multiple discrimination element. In one case they represented a woman, whose serious injuries caused by the husband evidenced repeated violence by the husband, whose emotional threats were also proved. The wife’s deteriorated condition caused her psychiatric problems. When, after two years, the court (which was reluctant to decide on a restraining order in the long-stretched procedure, facilitating the continuation of intimidating violence) asked for a psychological expert opinion, it was regarding the battered wife, to ascertain whether her mental condition made it impossible for her to act rationally, whereas the man, who admitted that he used battery as a regular way to ‘discipline’ his wife, was not examined for any psychiatric or mental disorder.

7. Role of equality bodies Equality bodies (ETA in Hungary) can promote general awareness of multiple discrimination, provided that they themselves are aware of it and also of hidden forms of multiple discrimination. Their case procedures and case law should automatically check incoming cases for possible multiplication of grounds and, within their powers, assist complainants if their complaint would not extend to grounds that are present in the documents.

Raising awareness is a major objective. Awareness of lawyers adjudicating incoming cases could be more aware of the possibility of multiple discrimination and its role in the fight for equal treatment. However, I attach greater importance to detecting multiple discrimination and clarifying this type of discrimination and its grounds in unusual situations, as described above under 5 or below under 8. As the concept of multiple discrimination becomes generally accepted, related case law may gradually develop.

8. Reinforcement of legal approach at EU level necessary?

In my view, the phenomenon of multiple discrimination is more a problem of not properly addressing ‘simple’ discrimination, especially when it is combined with serious social segregation, as is true for disabled people and the Roma. (Programmes on ‘health food’ cannot be efficient, until starvation is the main problem.) On the other hand, I think that it would also be useful to focus on multiple discrimination – which, in spite of all rhetoric is still treated as a peripheral issue – in order to attract more attention to other discrimination areas that are also treated as less It is impossible to analyse here whether the ETA’s case law exceeds the boundaries of discrimination on ‘other grounds’.

68 Multiple Discrimination in EU Law central (if not peripheral), e.g. discrimination on the ground of age or sexual orientation. For example, if the issue of elderly homosexuals or homosexual disabled people were addressed, this might bring a breakthrough in the less-addressed issue of discrimination on the ground of sexual orientation.

9. Community-law definition of multiple discrimination necessary?

The definition needs further clarification and specification, together with the also existing term of ‘diagonal’ discrimination.

10. Available literature or research?

Not on Hungary, but on a situation similar to situations in Hungary, Enikő MagyariVince has published a study among Hungarian-speaking Roma in a Romanian (Transylvanian) town, addressing the lack of reproductive health and freedom due to their educational, social and economic disadvantages.64

11. Further research The detection and proper treatment of multiple discrimination cases could be somewhat promoted by specially recording such cases in the judicial and/or in the administration system. Perhaps systematic research at European level would be too early at this stage; not much more could be addressed there than in the research paper mentioned in the introduction of the questionnaire.

ICELAND – Herdís Thorgeirsdóttir

1. Concept of ‘multiple discrimination’ in legislation The Constitution of Iceland does not address the concept of multiple discrimination as such. Article 65 of the Constitution contains the main basis of legal protection against various forms of discrimination. Under this provision, everyone is equal before the law and enjoys human rights irrespective of gender, religion, opinion, ethnic origin, race, colour, property, family origin or ‘other status’. The wording ‘other status’ is to refer to other grounds that may be the source of discrimination such as physical condition or health, according to the explanatory report with the amendments to the Constitution. There is no indication that it was meant to cover the possibility of discrimination based on a combination of grounds, but neither is this excluded. The non-discrimination principle is above all a policy statement which is not to be interpreted too narrowly or literally without taking into consideration the conditions affecting peoples’ lives and which therefore takes into account the necessity to assist by legislation those whose conditions need to be corrected in order to achieve greater equality. Hence the concept of multiple discrimination may be derived from the principle of non-discrimination in the Constitution.

2. Case law No cases have been brought before the Gender Equality Complaints Committee or the courts concerning multiple discrimination or the intersection of gender discrimination with other grounds of discrimination.

Enikő Magyari-Vince Social exclusion at the crossroads (of ethnicity and gender);

http://www.policy.hu/news/Magyari-Vincze-PS/10, accessed 2 April 2009.

Multiple Discrimination in EU Law 69

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

There are no cases that I know of. The extent and depth of gender discrimination is such that gender-related violations are probably often treated as breaches of other statutes and regulations, rather than violations of a fundamental human right.

4. Proof and procedural problems As there are no cases regarding multiple discrimination, no problems regarding proof or procedures can be reported.

5. Description of a specific case See under 2 above.

6. Effects of legislation and case law in practice The term ‘multiple discrimination’ is relatively new and it is not a legal concept or rooted in legal discourse yet. There have been discussions on the forum of the academia on women with disabilities, but these have not been prominent enough to attract general attention to the problem. The term mainly seems to be familiar to those who are actually dealing with the problem in practice, such as in the cases of immigrant female workers on the forum of NGOs. There are attempts to raise awareness of their rights, as many of them find themselves in a situation of excessive dependence on their employers and many are victims of domestic violence.

A working group established by the Minister for Social Affairs has issued its recommendations on implementing EU Directive 2000/43 implementing the principles of equal treatment between persons irrespective of racial or ethnic origin and EU Directive 2000/78 establishing a general framework for equal treatment in employment and occupation. This working group has suggested inter alia that the Centre for Gender Equality should have a staff member to offer objective assistance to those who have allegedly been discriminated against on the basis of multiple discrimination.

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