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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 employer had refused to employ a female candidate in the position of washer and was ordered to pay her the minimum wage for the period from the day of unlawful refusal to employ until the day of her actual employment by another employer and to compensate non-material damage. The discrimination against race and ethnic origin was proved with no reference to the sex of the victim. However, it is still unclear whether the situation constituted a case of multiple discrimination, since successful candidates were Lithuanian females of a similar age. The Office of Equal Opportunities that is familiar with the notion of multiple discrimination actively participated in the litigation.

In general, the phenomenon of multiple discrimination is not even considered due to the lack of knowledge and understanding of the definition and, more importantly, of its manifestation.

4. Proof and procedural problems No case law is available.

5. Description of a specific case There have not been any cases, so a description of a specific case is impossible.

6. Effects of legislation and case law in practice No surveys or reports are available. In her Annual Report, the Ombudsperson of Equal Opportunities only referred to the notion of multiple discrimination as a general term, alleging that there ‘may be’ multiple discrimination of sex and age in conjunction; in the labour market, older women are less competitive than the men of the same age and it is more difficult for them to find a job. The same applies for young women; their employment and career options are more restricted due to possible future pregnancy or parental leave. However, no particular studies or cases were presented.

7. Role of equality bodies So far, the Office of Equal Opportunities has only supported a small number of conferences and public events devoted to multiple discrimination. The topic was declared as one of the Office’s priorities in its 2007 call for proposals for financing of antidiscrimination projects and a small number of supported projects have been devoted to the issue.

8. Reinforcement of legal approach at EU level necessary?

Yes, the definition of discrimination based on sex should also include cases of multiple discrimination.

–  –  –

10. Available literature or research?

There is no literature or research available.

11. Further research

Further research should address the following issues:

1. use of multiple comparisons;

2. use of specific justifications and exceptions for different grounds;

3. cumulative effect of application of provisions on discrimination on different grounds; and

4. levels and principles of damages awarded in cases of multiple discrimination.

–  –  –

1. Concept of multiple discrimination in legislation In Luxembourg, there is no explicit prohibition of multiple discrimination.

2. Case law There are no cases to be reported in which a combination of grounds of discrimination was addressed.

The national equality body has been operational since December 2008. Until now (February 2009), the Centre pour l’Egalité de Traitement (Centre for Equal Treatment) has been consulted on about 30 demands. No complaints for multiple discrimination have been registered yet.

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

Considering that there is no case law on multiple discrimination, it is impossible to answer this question.

4. Proof and procedural problems As there is no case law, problems of proof and procedural problems cannot be identified.

5. Description of a specific case As there is no case law, no description can be provided.

6. Effects of legislation and case law in practice Multiple discrimination is a concept which is rarely addressed in Luxembourg.

However, actions on multiple discrimination are regularly taken mainly by NGOs which try to raise awareness on the subject. If the concept is addressed, it generally appears in relation with the gender perspective. Problems encountered by specific groups such as disabled women or migrant women have for example been addressed by exhibitions or conferences on national level. But there are no specific surveys or publications available on the subject.

88 Multiple Discrimination in EU Law

7. Role of equality bodies The Centre pour l’Egalité de Traitement launched a media campaign in February.

Although the main aim of this campaign is to give public visibility to the Centre itself, the messages which are disseminated may also raise awareness on multiple discrimination, as each message refers to two or more discrimination grounds. As the equality body only started its activities a few months ago, multiple discrimination has not specifically been addressed. At the moment, its main concern is organizing and fixing procedures and informing people on existing legislation.

According to the law, the Centre pour l’Egalité de Traitement may conduct surveys on discrimination. Multiple discrimination could be one of its future research fields. As the national equality body is concerned with the six grounds of discrimination protected by EU law, it appears that it is the ideal platform to address multiple discrimination.

8. Reinforcement of legal approach at EU level necessary?

On the national level, considering that current legislation on discrimination is only used very little, by victims or by legal professionals, adding specific legislation on multiple discrimination may appear to make no much sense. One may assume that the national equality body will contribute to motivating victims and legal professionals to change their attitude, but even if so, this will probably take a few years. However, a legal provision consisting in obliging the equality body to provide figures on multiple discrimination could be useful.

Further reinforcement of legislation on multiple discrimination could even cause confusion and risk enhanced lack of motivation on proceedings in Luxembourg. As courts and tribunals are not familiar with anti-discrimination law, introducing specific legislation on multiple discrimination could result in a reinforcement of the hierarchy of grounds. In a general way, people seem to react to visible discrimination. As an example, a survey from the Centre pour l’Egalité de Traitement, which will be published in April 2009, shows that the respondents are oversensitive regarding discrimination on the grounds of race and disability. Excepting the pay gap, discrimination on the ground of sex does not seem to be perceived as very worrying.

Reinforcing legislation on multiple discrimination could emphasise this tendency by relaying sex discrimination to second ground added to a first ground which could be perceived as more important.

This hierarchy was instituted by excluding sex discrimination from the fields of media and education in the access to and supply of goods and services. There are no such restrictions on the five other grounds. As a result, one could assume that sex discrimination could be perceived as less worth to be protected.

9. Community-law definition of multiple discrimination necessary?

The concept of multiple discrimination is perceived as not very clear, even by professionals in the anti-discrimination field. Before providing a Community-law definition, parties involved have to be aware of the concept in order to avoid counterproductive interpretations. On a national Luxembourg level, gender equality seems to have been weakened during the last few years. Focusing on multiple discrimination as a legal provision could even amplify this tendency, because as a result, inequality between women and men may be perceived as not being ‘sufficient’ to identify a certain situation as discrimination.

Currently, courts, lawyers and victims can already invoke other grounds apart from gender, and such invocation should clearly remain a subsidiary option.

–  –  –

11. Further research Research on multiple discrimination should be encouraged. It could be important to analyze the opinion and the awareness of different crucial parties involved, such as courts, lawyers, equality bodies, government departments in charge of antidiscrimination legislation, social partners and NGOs. It could also be interesting to analyze how law professionals currently deal with discrimination in general and with multiple discrimination in particular. Finally, it would certainly be interesting to focus on the effects of the recognition of multiple discrimination by courts and equality bodies. Does multiple discrimination call for higher sanctions and what would be the implication of such an approach?

MALTA – Peter G. Xuereb

1. Concept of multiple discrimination in legislation In Malta, multiple discrimination is not defined, nor is it explicitly prohibited in nondiscrimination law. It is clear that discrimination on any one of the grounds mentioned in any piece of legislation that prohibits discrimination on more than one ground (for example, regulation 1 of the Equal Treatment in Employment Regulations of 2004, Legal Notice 461 of 2004, as amended) is prohibited, and that such legislation often uses the cumulative ‘and’ rather than the alternative ‘or’. However, it can be deduced from the subsequent provisions (or lack of specific provisions) in the body of the legislation that the assumption is that the grounds are to be ‘operated’ or ‘called in’ (by a claim or a complaint) singly. This interpretation is supported by the fact that much of the legislation was passed in order to implement the corresponding Community Law, itself formulated in a ground-specific way. In the above example of the Equal Treatment in Employment Regulations, these were enacted in order to give effect to the relevant provisions of Council Directives 2000/78, 2000/43 and then, by later amendment, Directive 2006/54. However, on the other hand, there is no legal principle that would prevent a person claiming discrimination on a number of different grounds. There is no case law on this point.

2. Case law The issue of multiple discrimination as such has not come up before the courts.

Without heightened awareness among the legal profession, I suspect that claims would be made on a number of grounds where several were suspected as possible grounds singly or even cumulatively, but that in any case they would be treated with a leaning towards a ‘single-ground’ approach in the same way as has happened in other jurisdictions that do not make any special provision for multiple discrimination. This is speculation and could well not be the case with heightened awareness of the work that has been done in some Member States on the concept. However, the law is not designed in such a way as to invite a multiple-ground claim by potential claimants or a multi-ground approach by the courts. Nor do the most recent reports of the National Commission for the Promotion of Equality (the NCPE), the national equality body, make reference to multiple discrimination as a concept. The latest annual report of 90 Multiple Discrimination in EU Law that body, published in February 2008 and covering the year 2007,98 listed complaints under two headings only and separately, namely ‘gender’ and ‘race’, reflecting its broadened brief since the latter’s extension to race besides gender, in virtue of the Equal Treatment of Persons Order 2007.99 Of course, there is general awareness of the concept of multiple discrimination within the equality body, but it cannot yet be said that a policy has evolved in relation to it.

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

There are no such cases known.

4. Proof and procedural problems There have been no cases where this has been raised as an issue. In general, at the level of principle, the law is consistent on each of the grounds, except that there is no shifting of the burden of proof in the case of disability under the Equal Opportunities (Persons with Disability) Act of 2000 (Chapter 413, Laws of Malta).

However, at one step removed from the courts, a matter that has a bearing on this point is that Malta still has no single equality body, which means that different grounds fall under the competence of different ‘bodies’. The NCPE has no remit over disability nor, for the ground of race or ethnic origin, for employment matters. Of course, this is one side of the same coin that applies in reverse in relation to the other bodies covering those grounds and areas. This can effectively mean that a ‘holistic’ or ‘multiple’ approach – or indeed even an unproblematic ‘simultaneous’ approach (that is a ‘single-ground approach’ for two or more grounds in a separate way) – cannot be taken under the current set-up in many cases. The relevant procedures would be those set out in the relevant legislation, and this legislation is doubly compartmentalised, that is, it is compartmentalised both by ground and also by area (for example, employment, self-employment, access to services, education). This remains the case, although recent years have seen a harmonisation of definitions and burden of proof rules. The key problem remains that the distribution of functions across different equality bodies renders the making of a ‘multiple discrimination case’ difficult in the absence of a liaison between them that currently does not exist, and that arguably cannot exist without a restructuring of the system in the sense of the creation of a single equality body.

5. Description of specific case There have been no decisions in cases that can serve as illustration. However, the multiple discrimination concept, and the approach devised to deal with its manifestations in reality, are arguably vital for properly addressing the full range of possible discrimination against women and helping women who are particularly vulnerable on account of the co-mixture of different factors or characteristics. There is no doubt that there is much room for analysis of the situation faced by minority ethnic women, by ethnic minority women of different religion, by older women seeking to enter/re-enter the labour market, and other permutations. A comprehensive study needs to be commissioned with a view to applying existing state of the art knowledge and research on multiple discrimination to the Malta case.

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