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Available at www.gov.mt, accessed 20 February 2009.
Legal Notice 85 of 2007, as amended by Legal Notice 267 of 2007.
7. Role of equality bodies The NCPE has not been given, formally speaking, an explicit brief to cover multiple discrimination. It originally had a gender brief only. This was extended to race in 2007 (see above), but this was to the exclusion of employment matters, so that discrimination in employment matters on the ground of race was entrusted to the Department of Employment. This would make it difficult (well nigh impossible) for the NCPE to take a ‘multiple ground’ approach in the key case of alleged multiple discrimination in an employment context in relation to a key type of possible victim, namely a woman of different race, even though it has the remit both for gender and for race. Nor is it competent in the area of disability (another body is so designated). It is clear, from a multiple discrimination perspective, that the NCPE should be considered as a candidate to become a single equality body and that its brief should span all areas as well as grounds – and at the least all the areas for the grounds with which it is charged. At the moment, it has no brief regarding disability. Nor is there any equality body for age or sexual orientation. Yet sexual orientation is already giving rise to litigation in a private/family context, and in the light of what the Gay Rights movement has called ‘growing homophobia’ (as more LGBT persons ‘come out’) the argument for a single equality body with an all-embracing brief is certainly one that will become stronger. This being said, it is not intended here to pre-empt the debate – a debate that will have to happen sooner or later, and one that I hope that this report will bring forward – on the ‘pros’ and ‘cons’ of that particular result. At the moment, therefore, it cannot be said that the NCPE, or the equality body for disability, has any great role in this context. However, the NCPE has made a start with raising public awareness about the concept in some of its television spots, even without a formal brief. It is certainly adept at this form of action. A single equality body could take this sort of action even more comprehensively.
8. Reinforcement of legal approach at EU level necessary?
At EU level: In my view, a strong case can be made for action at EU level. At some point, Community law should clearly mention and prohibit multiple discrimination per se and in all contexts. Harmonisation in this area is deeply desirable on the same principle that justifies EU level action on the single grounds. It would be crucial in ensuring the application of a common definition(s) of multiple discrimination, which I advocate in principle, although much attention will need to be given to the substance of the definition. While further study is needed before proposals on the detailed content of any such measure were made, I would advocate the inclusion in such a measure of clear provisions on the questions of proof and of penalty, the content of which should flow from the full analysis of the nature of the phenomenon; for example, it might be that the penalty issue needs to be formulated other than with an ‘aggravated element approach’ (main ground aggravated), or even with more than a cumulative approach (double etc. penalty for discrimination on two or more grounds), on the basis that some other approach (the ‘inter-sectional’ approach) is indicated.
At national level: The experience of some Member States with legislation that expressly addresses multiple discrimination can be most helpful. However, I feel that See however www.quing.eu/files/results/so_malta.pdf, accessed 20 February 2009.
92 Multiple Discrimination in EU Law the impetus will need to come from Community law. National action will then follow EU action. This will be at the legislative level (parliaments) and at the protective/enforcement level (led by the Equality Body or equality bodies). In my view, EU action is needed in particular in order for the kind of legislation and structures needed to address all types of multiple discrimination to be put in place.
Secondly, because some Member States will otherwise resist the sort of moves that I think should be considered deeply in a multiple discrimination context. However, it may be that these moves can be more readily argued for in this context, with a beneficial spill-over effect into EU and national law effectiveness even regarding the single grounds.
Therefore, I regard action at both levels, inter-relatedly, as being necessary for the sake of harmony across systems in law and in fact. It is important that the appropriate legal tools be put in place. The latter could include appropriate (and, in the EU context, common) definitions, modalities of enforcement, including as to proof, and guidance as to remedies. In the context of multiple discrimination, one would need to consider whether special rules were required in these areas. As to remedies, the question is how much discretion can remain with the national legislators or the national courts, or whether a common rule should be agreed. I would normally expect rules to find the right balance such that they would effectively deter the offender or potential offender. However, I accept that more academic/expert work on this is needed. Also, equality bodies must by law be given appropriately comprehensive competence (briefs), authority and capacity.
9. Community-law definition of multiple discrimination necessary?
Yes, a definition at Community level would put all Member States on the same track, by opening eyes to reasons that are not readily discernible by focusing on single grounds, and covering all angles. From this perspective, the prohibition against multiple discrimination would also be attacking something more than ‘just’ discrimination on more than one ground. Recent studies have identified at least three forms of multiple discrimination (that properly so-called, so-called ‘compound’ discrimination and so-called ‘intersectional’ discrimination). I believe that all forms should be addressed, albeit under the banner heading of ‘multiple’. The nuances (at least the main ones) can probably only be brought out through a definition, however basic, so I would support the suggestion that we formulate a definition and then prohibit it, even if only adding it on (‘tacking it on’) to existing lists or catalogues in the legislation already in place. The formal definition would then of course be reinforced or further elaborated and itself further defined by any substantive and procedural provisions based on the most enlightened theory and experience as to the operation of rules of proof, access to court, penalty provision and so on, with this whole ‘package’ instilling a common appreciation of the nature of the phenomenon in its various guises.
It seems clear, even at this early stage, that multiple discrimination is or can be regarded as a particularly individually damaging and socially insidious phenomenon different from discrimination on one ground, also in the complex approach needed to fight it. The difficulties of establishing a definition should not deter us from seeking one. Without a common legal concept of what it is or can be (transmitted through a legally binding, and therefore judicially cognisable, definition) it is unlikely that there will be any harmonious recognition, interpretation or application (indeed any certainty even about its existence) of any true Community desire to impose and follow through on a prohibition against a particularly noxious phenomenon.
Multiple Discrimination in EU Law 93 An added complication is that other factors, not yet included in the list of grounds covered by Community legislation, can play a part in explaining the unequal treatment of a person, and some legal basis should be found for permitting (requiring) account of these to be taken singly and as part of the multiple discrimination phenomenon (socio-economic status, political opinion, language, social origin, property and birth, among others).
10. Available literature or research?
No professional studies directly in point have been published. The Malta Confederation of Women’s Organisations has designated ‘multiple discrimination and women’s diversity’ as one of eight policy priorities for the confederation for 2008/2009, and it is hoped that this will lead to an important policy paper.101 Some reference to the issue in the immigration context is made by the ENAR shadow report on Malta for 2007.102
11. Further research
Issues that need further research include:
Empirical research to ascertain the prevalence of various forms of multiple discrimination, based on a working definitional model, and testing that model, across the Member States. However, this should not hold up legislative initiatives based on the current state of knowledge and the experience of some Member States. There is a need for such research in Malta.
The main legal issues include the question whether all gaps in current Community-law protection, as exist between the different grounds and the areas or spheres in which protection is necessary, have been addressed. Can new grounds and areas be envisaged? Discrimination on grounds of political or voting bias (including by association), social distinctions, civil status and even language differences (for example: the predilection for the use of a particular language from among two official languages, or particular language characteristics. This is in itself often associated with a certain presumed political allegiance) can come into the discrimination equation in several Member States, including Malta.
Another legal issue is the question whether the ban on discrimination should be extended to cover all the functions of public authorities or of a public nature. The experience of all the Member States has shown that the specific measures of enforcement must be complete to ensure that the law is effective. Then, we need to research further how and on what conditions a measure on multiple discrimination will supply spill-over effects for protection on the individual grounds.
Then, the general legal background, including international law and regional treaties (European Convention on the Protection of Human rights and Fundamental Freedoms of 1950) and national human rights provisions: The human rights basis for further action needs to be explored. A particular issue here is the question of the rights of immigrants, and especially refugees and asylum seekers, and the question of positive action. This is a highly sensitive and contested area. This is also true, by extension, for the rights of ethnic minority women, young men and children.
However, positive action may have to be at the core of any approach to effectively tackle the ‘reality gap’ between rights on the statute book and (individual) enforcement of those rights in practice.
www.mcwo.net/the_way_forward.html, accessed 20 February 2009.
www.enar-eu.org/malta, accessed on 21 February 2009. See also www.um.edu.mt/pub/ praxeological_gerogogy.html, accessed 21 February 2009.
94 Multiple Discrimination in EU Law While Community/EU law has an obvious role in tackling the problems of enforcement and having a good record to put in place individual rights, it remains true that such can be circumvented by mechanisms or ploys that make it virtually impossible for an individual to know that discrimination has occurred in regard to that individual or to the group to which they belong. ‘Collective enforcement mechanisms’, in the same way as positive action, can address this lacuna, and it may well be that a multiple discrimination measure that is strong on this front (for example, by raising an irrebuttable presumption of discrimination where, in defiance of all ordinary reason and odds, the workforce of an employer of a certain size in a certain community shows an ‘exclusionary’ picture) will be more readily accepted and effective, having this spill-over effect into the reality gap of individual enforcement.
One key issue, in my view, is therefore the question whether Member States are prepared to permit independent actions by relevant organisations and by a single equality body whose competence to act across grounds is legally secure. Arguably, the integrity of any system of rights protection requires that this option be available where it appears clear to such an association or body that discrimination is occurring, and the evidence clearly points in this direction, but individual cases are not pursuable either because individual victims cannot be identified or because they will not come forward. In this context, perhaps, our discrimination law can begin to speak also of group rights, to mean the rights of groups who are categorised around a particular intersection of characteristics that may be used as a ground for discrimination. Where the problem is large, multiple discrimination-specific NGOs (say, an NGO dedicated to the plight of black immigrant women) might be the answer, as long as they can take legal action independently in the interests of the group they represent (in their own name).
Another issue might be to what extent the nature itself of multiple discrimination points in the direction of developing the law on the ‘positive duties’ side, that is, taking more seriously at Community level the substance and the enforcement of positive duties on the States and on employers and others (so the promotion of equality) going beyond the obligation to abstain from or sanction discrimination.
Going with this is the use of the idea of ‘reasonable accommodation’ and its possible reach.
NETHERLANDS – Rikki Holtmaat
1. Concept of multiple discrimination in legislation The concept of multiple discrimination is not explicitly addressed in Dutch equal treatment legislation. Although the General Equal Treatment Act (Algemene Wet Gelijke Behandeling, hereinafter ‘GETA’) contains an exhaustive list of nondiscrimination grounds, parliamentary history does not exclude the combination of grounds. Moreover, including the possibility of discrimination based on a combination of grounds seems to be in line with the legislator’s objectives with this legislation.
Multiple Discrimination in EU Law 95