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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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11. Further research In a country such as Italy, where multiple discrimination is currently overlooked, further research at European and national level would be crucial in order to increase the capacity to recognize and identify it and to raise awareness of the problem.

Research initiatives ought to be targeted at raising awareness amongst decision makers, public authorities and the judiciary. Research should develop the conceptual tools to analyse multiple discrimination in all its forms and to identify the intersectional groups where it is likely to manifest itself. Moreover, as one of the obstacles to the recognition of multiple discrimination is the so-called ‘single-ground approach’, which appears to be very frequent in Italian legislation, case law and literature, research should be aimed at constructing a comprehensive approach geared to putting an end to the segmentation and the hierarchical appraisal of discriminatory grounds and promoting intersections and communication across the various grounds in order to recognise the combined effect of different grounds of discrimination on the victim. Research should address not only the problem of how to process intersectional cases, but also the issues of the burden of proof and that of comparison regarding multiple discrimination hypotheses. Another question to be answered ought to be that of how damages in cases involving two or more grounds should be assessed.

–  –  –

1. Concept of multiple discrimination in legislation Multiple discrimination is not explicitly prohibited by statutory legislation.

2. Case law There is no case law in Latvia in which the concept of multiple discrimination would have been recognized as such. However, there have been three relevant cases dealing with discrimination on two grounds – one decided by the national court, one reviewed by the National Equality Body, and one by the Constitutional Court.

82 Multiple Discrimination in EU Law In one case, the national court recognized discrimination on two separate grounds.94 This was the case where a Ms Stūriņa was dismissed from the post of stoker, because, as the court established, the employer (a municipality) considered this profession as a ‘male’ profession, thus ‘females should not have to stoke anymore’. In addition, the national court discovered that there was another reason why a particular male person was employed instead of Ms Stūriņa. It was because the employer considered that his pay was low in another job. In the provisions on discrimination grounds, Latvian Labour law explicitly provides for the prohibition of discrimination on the grounds of property status. Based on this, the national court decided that Ms Stūriņa had been discriminated against on two grounds: sex and property status.

Another case where multiple discrimination was found was reviewed by the National Equality Body (Ombudsman Office). This case was about gender and age harassment during a recruitment procedure. Mr O., a middle-aged male applied for the published position of waiter in a rest house. During the job interview, the employer announced that she expected to employ ‘young girls, because waiters working in rest houses must be very quick and guests want to see young girls as waiters’. When the case was brought before the Ombudsman Office for investigation, they found multiple discrimination and decided to represent Mr O. before the national court (because the National Equality Body in Latvia may make legally non-binding recommendations only, but may also represent a person’s interests before the court in discrimination cases). After this, the parties reached an amicable settlement. Because of this, no national court has analysed whether multiple discrimination is compound or intersectional. It seems that in this case, discrimination was intersectional, although statistics in general do not reveal any evidence that middle-aged men would experience a disadvantage in the labour market in comparison to young girls, rather the opposite. In addition, it is more likely that this case was more about age discrimination, because of the stereotype that the profession of waiter is more appropriate for young persons. This makes it likely that in this situation middle-aged female candidates would not have been successful either.

The third case was decided by the Constitutional Court of Latvia and could also be considered as relating to multiple discrimination.95 In 2003, the Constitutional Court delivered a decision on the compatibility of the Civil Services Law stipulating an age limit for the civil service (until retirement age) with the Constitution of Latvia, and on the compatibility of the same provision of the Civil Services Law with the Law on State Pensions stipulating different retirement ages for men and women with the Constitution. The claimant was a civil servant who was dismissed from the civil service at the age of 58 because she became entitled to the old-age pension, while if she had been male this would have been four years later, at the age of 62.

The Constitutional Court found, first, that the age limit for civil servants is compatible with the Constitution on the condition that in each case it is possible to prolong service based on the decision of a head of institution or minister, and second, that the Law on State Pensions in conjunction with the Civil Services Law is not discriminatory on the grounds of sex. This is because the different retirement ages for men and women are stipulated by transitional provisions of the Law on State Pensions, envisaging progressing equalization of the retirement age for both sexes by 2008, but the current norms of the Law on State Pensions provide for the same Decision of the Cēsis District Court of 5 July 2005 in case No. C 11019405, not published.

Decision in case No. 2003-12-01 ‘On the Conformity of Section 41 (Item 1, Sub-item ‘f’) of the State Civil Services Law with Articles 91, 101 and 106 of the Satversme (Constitution)’, available in English on http://www.satv.tiesa.gov.lv/upload/2003-12-01E.rtf, last accessed 20 April 2009.

Multiple Discrimination in EU Law 83 retirement age. Accordingly, this is a problem of proper application of the law, rather than the Law itself. The Court concluded that within the meaning of the Civil Services Law, the equal retirement age must be applied as provided by the basic text of the Law on State Pensions.

In all of these cases, discrimination grounds were addressed separately. The reason is simple: Latvian law does not explicitly provide for the concept of multiple discrimination and the knowledge of Latvian lawyers on discrimination in general is weak, because this concept was only introduced by the implementation of EC law.

Gender as a discrimination ground was explicitly identified in all three cases, but there is a lack of analysis whether the gender aspect has any connection to or impact on the other discrimination ground. This could be true in the case of Ms Stūriņa, where property status was involved with regard to the male person employed after Ms Stūriņa. There are strong stereotypes in Latvia about the male as the bread winner, thus they should be supported when looking for extra work.

In the case of Mr O., the grounds were intersected. This was recognized by the Equality Body, but due to the lack of a legal basis for claiming multiple discrimination before a court, it was prepared as referring to multiple discrimination but still dealt with addressing each ground separately.

So far, the multiple character of discrimination has not resulted in higher sanctions.

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

Cases where gender-related discrimination was overlooked have not been identified among the publicly available decisions. However, there are several decisions of the Constitutional Court on child-care allowance96 and child-care allowance for a disabled child97 where the gender-discrimination aspect was not reviewed.

4. Proof and procedural problems Problems with comparators appear in intersectional discrimination cases, because of the lack of a clearly defined comparator. Since Latvian law provides for ‘copy out’ of definitions of EU non-discrimination directives, there are requirements for the comparator and comparability of the situations within the framework of only one discrimination ground.

In Mr O.’s case, for example, the court addressed the two discrimination grounds separately, because of the lack of legal doctrine on comparators with more than one discrimination ground.

5. Description of a specific case Nothing to report.

6. Effects of legislation and case law in practice There is no information available (e.g. surveys) regarding multiple discrimination and the effects of legislation (if any) and case law in practice in Latvia.

Cases No. 2005-09-01 and No. 2006-07-01.

Cases No. 2006-08-01 and No. 2007-15-01.

84 Multiple Discrimination in EU Law

7. Role of equality bodies Currently only the National Equality Body is expressly aware of multiple discrimination. However, due to restricted financial means, it will not be possible in the near future to conduct any research of multiple discrimination on a national level.

The National Equality Body could start discussing the existence of multiple discrimination and represent the interests of the victims of discrimination before national courts. However, while there are no explicit provisions in national law prohibiting multiple discrimination, there is little chance of being able to address two or more grounds simultaneously.

8. Reinforcement of legal approach at EU level necessary?

There is an obvious necessity for EU law to provide a definition of multiple discrimination.

I believe that the definition of multiple discrimination must be included in all EU non-discrimination directives, although difficulties will arise with regard to incoherent coverage of the fields where discrimination is prohibited. It follows that a definition of multiple discrimination may be provided only in the field of employment for all grounds and with regard to the access to and supply of goods and services relating to sex, race and ethnic origin.

A definition of multiple discrimination by EU law would provide a legal basis for the concept under Latvian law.

9. Community-law definition of multiple discrimination necessary?

For Latvia, a community-law definition of multiple discrimination would be the best solution, because discrimination law is new here. Consequently, Latvia still has some problems with the proper and effective enforcement of the current provisions of EC law in the field of discrimination, and there has not been any legal or political debate on the necessity to combat multiple discrimination.

10. Available literature or research?

No literature or research is available on a national level on multiple discrimination in Latvia.

11. Further research Further research is necessary both at EU and at national level, because of the different social contexts of the Member States (composition of population) and the regions of the EU (e.g. Western and Eastern Europe). Western Europe, for example, has many immigrants from Africa and Asia, which involves not only ethnic but also religious aspects, while in Eastern Europe, the population is more homogeneous, but still with its own specific aspects, such as a large Russian-speaking minority, the majority of whom do not possess Latvian citizenship.

In my opinion, the most important legal aspect regards the issue of comparators and comparability of situations. A definition must be provided of multiple discrimination, allowing intersectional comparators.

–  –  –

1. Concept of multiple discrimination in legislation Statutory legislation in Liechtenstein includes no explicit prohibition of multiple discrimination.

2. Case law No gender-related multiple discrimination cases have been found.

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

Such cases have not occurred yet in courts.

4. Proof and procedural problems No such particular problems can be reported at the moment.

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

6. Effects of legislation and case law in practice No specific effects because of lack of legislation and case law can be reported.

7. Role of equality bodies According to information given on the homepage of the equality bodies, it seems that no specific approach exists in dealing with multiple discrimination. My impression is that different grounds are only dealt with separately. I did not even receive a reply to my direct question put by email to the manager of the Equality Office concerning multiple discrimination. In my opinion, the equality bodies should raise awareness among all stakeholders involved regarding the issue of multiple discrimination and should start dealing with multiple discrimination cases.

8. Reinforcement of legal approach at EU level necessary?

Yes, this will be necessary to promote national legislation and case law.

9. Community-law definition of multiple discrimination necessary?

Yes, this will be necessary to give more input and motivate national legislators and courts to regulate the matter.

10. Available literature or research?

No such specific literature or research is available in Liechtenstein.

11. Further research This is highly necessary in order to make all stakeholders involved aware of the issue of multiple discrimination.

–  –  –

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

On 30 June 2008, the Court of the First Instance in Vilnius announced its decision in a landmark case on the discrimination against a woman of Roma origin (Case No.

2-1189-545/2008). The case was the first significant case where under strong evidence of refusal to employ a person on discriminatory grounds the court had to apply national legislation in conjunction with equality legislation and EC directives.

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