«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
difficulties of proof; and absence of a policy of leading cases. This cautious attitude in applying anti-discrimination legislation is also evident in the cases where courts recognised the right of non-EU residents to social security disability benefits, although denied by the local authorities because they did not have a ‘green card’, by using other legal tools such as the non-retroactive nature of the new standard that banned these residents from benefits, rather than by recognising multiple discrimination on the grounds of nationality, disability and sometimes age (Cassazione 29 May 2007, No. 12605; Tribunale Trento, 11 November 2004;
Tribunale Verona 22 May 2006). As described above, the Constitutional Court recently intervened,declaring unlawful some of these standards on the double ground of nationality and disability (case No. 306/2008; case No. 432/2005).
4. Proof and procedural problems The case law mentioned above does not go into any problems of proof, procedural issues or questions related to comparisons.
5. Description of a specific case There are no cases of multiple discrimination involving gender discrimination and one or more other grounds of discrimination in our case law.
6. Effects of legislation and case law in practice There is no information available regarding multiple discrimination and the effects of legislation and case law in practice in Italy. A study has recently been carried out on multiple discrimination. This study has a sociological character and is based upon perceptions of persons at risk of multiple discrimination. It attempts to formulate a definition of multiple discrimination as ‘a phenomenon that, rather than depending on 78 Multiple Discrimination in EU Law people belonging to a group, is rooted in the structure of societies’; according to this definition, ‘multiple discrimination does not concern the individual person or his/her group or the intersection between groups, but it is caused by the fact that society as a whole gives rise to several forms of discrimination that involve different social groups and persons’. The report stresses the interviewees’ perceptions of the inadequacy of social services in handling cultural differences: the reasons of discrimination are perceived to be essentially cultural and rooted in a lack of education and information rather than in a lack of legislation.90 Another study, on gender discrimination at the workplace, is a trade union social policy study and contains a chapter on multiple discrimination. This research underlines the importance of the intersection between gender discrimination and race/ethnic discrimination in relation to the immigrant workforce and identifies empowerment of civil society and of multicultural associations as well as the acknowledgment of basic social rights as the appropriate instruments to prevent social exclusion.91 Moreover, on 9 and 10 October 2008, Equinet (European Network of Equality Bodies), with the support of the EU Commission and of the Department of the National Office against Racial Discrimination (UNAR), held a training seminar in Rome, entitled ‘How do we understand Multiple Discrimination and can we work to tackle it?’. The presentations of the members of UNAR at the seminar are available on the Internet.92
7. Role of equality bodies As regards tackling multiple discrimination (or better double discrimination, see under 1), the only equality body that could play an active role is the UNAR, recently set up under Decree No. 215/03 to promote equality and to tackle all forms of discrimination grounded on race or ethnic origin in all fields (employment and nonemployment). Article 7 states that the UNAR shall perform its tasks ‘also in a perspective that takes into account the different impact that the same forms of discrimination can have on women and men, and the existence of forms of racism with a cultural and religious character’. All other equality bodies operating in the field of gender discrimination are exclusively involved in this specific field both formally (i.e. under the Code for Equal Opportunities) and in actual fact.
Moreover, the very small number of cases, the limited dissemination of information on this matter and the lack of an institutional link between UNAR and the other bodies are probably the main factors reducing its intervention in tackling double (race/ethnic origin and gender) discrimination to a marginal aspect of its activity. The UNAR Report 2007 to Parliament on the effectiveness of the instruments to tackle race discrimination underlines the possible multiplying effect of cross-discrimination and the opportunity to broaden the grounds of discrimination that UNAR can take into account.93 In fact, for instance, discrimination on the grounds of religion and personal opinion is very similar to discrimination on the grounds of race and ethnic origin but Antidiscrimination European Networks, Progetto Antenne 2001-2002, with the support of the European Commission, Rapporto di ricerca sulla discriminazione multipla, edited by Claudio Baraldi, Università di Modena e Reggio Emilia, on www.comune.modena.it/antenne/reports/ RapportoFinaleMonitoraggio.pdf, last accessed 21 February 2009.
Rapporto discriminazione di genere nei luoghi di lavoro, CGIL, Roma, 2004, Chapter IV, on www2.no-discrim.fr/web/xmedia/etudes/NDp2ItalieEenI.pdf, last accessed 21 February 2009.
http://www.pariopportunita.gov.it/DefaultDesktop.aspx?doc=2035, last accessed 21 February 2009.
http://www.pariopportunita.gov.it/Pari_Opportunita/UserFiles/Il_Dipartimento/UNAR/Notizie/ relazione_2007.pdf), last accessed 23 February 2009.
Multiple Discrimination in EU Law 79 cannot be analysed as double discrimination, as Decree No. 215/03 only provides for a generic reference to ‘the existence of forms of racism with a cultural and religious character’. From a general point of view, the introduction of the right to bring actions directly to court and of the right to conduct official inquiries is also underlined as important necessary changes. Representing individuals in ‘leading cases’ would strengthen the effectiveness of the UNAR’s intervention, giving this body more visibility and authority, also in the pre-judicial but crucial stage of attempted conciliation or of giving advice. The UNAR Report 2007 also points out the necessity to coordinate positive action aimed at social inclusion and positive action in the employment field.
Actually, apart from the obvious consideration that any change aimed at strengthening the powers of UNAR, which is the only equality body charged, although partially, with tackling double discrimination, would be a step forward, it is not easy to say in general which role equality bodies could play exactly in tackling multiple discrimination.
The present situation shows a number of organisations which act in different fields with different powers, on the one hand, and no organisation charged with tackling discrimination on the grounds of religion or belief, disability, age or sexual orientation in employment and occupation, on the other hand. A more active and effective role of equality bodies in tackling multiple discrimination seems to depend mainly on the extension of the grounds of discrimination to be taken into account and on the attribution of this competence to one particular body, which would thus be enabled to analyse the specificity of these cases. The model of equality bodies provided by the Code for Equal Opportunities, which is well tried and structured, could be followed to add new competencies, on the condition that proportionate human and financial resources are allocated.
In this respect, it is very important to ensure that the equality body charged with tackling discrimination, including multiple discrimination, forms part of a coherent system, which would allow to exploit all different organisations already playing a role in this field (social parties, associations, public employment agencies, labour inspectorates etc.) as well as guarantee the independence of the body from the Government, which is even more crucial, considering that certain grounds of discrimination are less politically ‘neutral’ than gender.
Nevertheless, although combining all grounds of discrimination under the competence of one single equality body seems the appropriate choice to tackle multiple discrimination, this raises doubts regarding the risk of intervention in the employment field being mixed with intervention in other fields. The risk is that all interventions become muddled in too wide a scope of objectives. This could lead to the contact with the specificity of the discrimination in the employment relationship being lost. A similar objection could probably be made against mixing gender with other grounds of discrimination. Moreover, concentrating all competencies in one organisation to tackle multiple discrimination needs a complex reorganisation. The risk is, again, that of losing some of the acquis in terms of resources and rights, as regards different kinds of discrimination, first of all the gender ones.
8. Reinforcement of legal approach at EU level necessary?
The lack of legislation against discrimination outside employment and occupation on the grounds of age, disability, religion/belief and sexual orientation is a problem when these grounds are combined with existing grounds, because this does not allow the grounds being argued in an intersected or additive way, as is required in multiple 80 Multiple Discrimination in EU Law discrimination hypotheses. Furthermore, the fact that the two Anti-Discrimination Directives provide for an exhaustive list of discriminatory grounds rather than for an open list of prohibited factors does not promote protection against multiple discrimination.
In my view, plans should be made for the introduction, perhaps through a dedicated directive, of specific provisions to tackle multiple discrimination, such as: a definition of multiple discrimination; standards regarding the burden of proof and regarding comparison; provisions on the award of damages, including moral damages;
provisions geared to explicitly address the competence of national equality bodies to assist the victims of multiple discrimination, and consequently supplying them with the necessary human and financial resources; and provisions for the development of positive tasks and actions in the area of multiple discrimination as well as of equality mainstreaming in public and private sectors. A dedicated directive, rather than spiderweb changes to existing directives, would have the advantage of avoiding the loss of all acquis as regards each single ground of discrimination. I am afraid that a softer approach, for example, only by mainstreaming or by positive action, would be insufficient to promote domestic legal and judiciary developments. Finally, at a more general level, gender policies and non-discrimination policies should not be kept separate, because this does not promote the development of coordinated action to tackle discrimination and, in particular, endangers those intersections and communication across the various grounds that are necessary to recognise the combined effect of different grounds of discrimination.
9. Community-law definition of multiple discrimination necessary?
One of the reasons why the Italian judiciary and legislation fail to address multiple discrimination is the lack of explicit provisions in domestic legislation. Lawyers generally tend to choose the strongest ground to argue their case before court and to leave out the grounds which are difficult to prove either singularly or in combination.
Most of the time they do not even consider the possibility of arguing on the basis of more than one ground. Thus an EU definition of multiple discrimination and a specific prohibition of it to be implemented by national legislation would be crucial to introduce into domestic legislation the protection against this form of discrimination.
It would also raise awareness of the problem among public authorities and the judiciary and this would enhance the protection for individuals and groups experiencing multiple discrimination. Moreover, an EU definition of multiple discrimination would play an important role in creating a common understanding of the concept, as has happened before in relation to concepts contained in the Race and Employment Equality Directives.
10. Available literature or research?
Literature and research on multiple discrimination is very limited in our country. The theoretical elaboration of this concept has only just begun.
The following are social policy and legal essays that contain paragraphs on
multiple discrimination or refer to double discrimination:
– O. Bonardi ‘Le discriminazioni basate sull’età’ in: Marzia Barbera (ed.) Il nuovo diritto antidiscriminatorio pp. 168-169, Milano, Giuffrè 2007, ISBN 88-14X.
– D. Gottardi ‘Le discriminazioni basate sulla razza e sull’origine etnica’ in: Marzia Barbera (ed.) Il nuovo diritto antidiscriminatorio pp. 24-28 Milano, Giuffrè 2007, Multiple Discrimination in EU Law 81 ISBN 88-14-12907-X, on http://www.donatagottardi.net/appunti.htm#pub, last accessed 21 February 2009.
– D. Gottardi ‘Dalle discriminazioni di genere alle discriminazioni doppie o sovrapposte: le transizioni’, Giornale di diritto del lavoro e delle relazioni industriali 2003 p. 447, ISSN 1720-4321, on www.donatagottardi.net/testi/ dalle_discriminazioni.doc, last accessed 21 February 2009;
– C. Ingrao ‘Differenza di genere e razzismo’ in: Donne, migrazioni, diversità.
L’Italia di oggi e di domani, Commissione nazionale per la parità Roma, Istituto Poligrafico dello Stato 2002, ISBN 9788824035255.
– IRES, Combattere le discriminazioni delle donne immigrate. Progetto europeo Codelfi, Working Paper No. 16, Luglio 2001, on training.itcilo.it/esf/ tantetinte/docs/discriminazione_donne_migranti.doc, last accessed 21 February 2009.
– P. Patel ‘Discriminazione razziale e discriminazioni di genere’ in: Donne, migrazioni, diversità. L’Italia di oggi e di domani, Commissione nazionale per la parità Roma, Istituto Poligrafico dello Stato 2002, ISBN 9788824035255.
– C. Romany, Razza e differenza di genere: una rilettura del diritto internazionale, on http://www.dirittiumani.donne.aidos.it/bibl_1_temi/g_indice_per_temi/ razzismo/d_romany.html, last accessed 21 February 2009.