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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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2. Case law Until now, the Equal Treatment Commission (the national equality body, hereinafter ‘ETC’) has accepted an intersectional approach in only one case.103 In this case, the grounds of disability and race intersected (the case was not gender-related) and the combined effect was acknowledged by the ETC. This combined effect was no reason to apply other standards of scrutiny regarding the question whether the facts of the case violated the principle of equal treatment. The ETC has shown willingness to apply different grounds of discrimination collectively in some other cases (with gender aspects as well), but the claimants failed to substantiate or to prove the combined effect of intersecting grounds in these cases.104 As far as the author is aware, there are no instances of cases of multiple discrimination before Dutch courts.

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

The author does not know of any.

4. Proof and procedural problems In the gender-related cases before the ETC that are mentioned under 2, the complaints were rejected due to a lack of evidence. This is also true for some other cases of alleged multiple discrimination (e.g. ETC Opinion 2006-133, in which a 52-year-old applicant complained about being rejected for a position because of his age and race).

These, however, did not seem to be issues that can be linked to the phenomenon of multiple discrimination in particular. Under Dutch equal treatment law, the burden of proof shifts to the defendant if the claimant manages to substantiate a presumption of discrimination. Therefore, in a case of alleged multiple discrimination, the claimant has to give a more detailed explanation of the combined effect of the grounds in question, rather than the mere accusation that there was discrimination. This requirement does not seem unreasonable or unduly damaging.

5. Description of a specific case ETC Opinion 2007-40 In this case, a Dominican woman complained to the Commission of having been the victim of sexual harassment and discrimination by employees at the location of her temporary job as a cleaning lady and in the termination of her contract as well. The claimant requested the Commission to assess whether her former employer had acted in contravention to equal treatment law by racially and/or sexually discriminating against her during working hours and in terminating her contract, or by inadequately handling her complaints of discrimination and sexual harassment. In support of her claim, the claimant recounted several events. However, in the respondent’s version of the events, the claimant had complained only once about the behaviour of one other employee, which was then dealt with in an appropriate way and the claimant never complained about other acts of discrimination or sexual harassment. Her accusations ETC Opinion 2006-256 (complaint of a blind Turkish woman against an employment agency for not being subjected to an adapted examination); accessible in Dutch on http://www.cgb.nl/opinionfull.php?id=453056545 (accessed 13 May 2009).

ETC Opinion 2006-67 (complaint from a divorced father against a hospital for not giving adequate information about his son; alleged intersecting grounds: sex and marital status; presumption not substantiated, no breach), ETC Opinion 2007-40 (complaint of a female cleaner about dismissal and (sexual) harassment; alleged intersecting grounds: sex and race; presumption not substantiated, no breach); accessible in Dutch on http://www.cgb.nl/opinion.php?id=453055819, (accessed 13 May 2009).

96 Multiple Discrimination in EU Law were denied by several other employees as well. Lastly, the claimant argued that she had been discriminated against on the basis of her race and/or gender. Arguing that she had never received complaints about her job performance, she thought she might have been employed only until a Dutch female could be found to replace her. (The cleaner hired after the claimant was indeed a Dutch female. Yet at the time of the judgment the cleaner who held the job was a Turkish female). The respondent, in contrast, stated that the reason for the dismissal of the claimant was the insufficient performance of her tasks, towards which her race and gender had played no part at all.

Finally, the ETC found no breach of equal treatment law, as the accusations could not be substantiated by any evidence.

First of all, this case is an example of the difficulty of proving or establishing discriminatory treatment legally in general, as discriminatory interaction between persons often occurs subtly and in private, and is thus hard to prove.

If the view of the Dominican woman was right in this case, it would have been likely that the treatment resulted from a combination of the grounds of race and sex. It is, however, still difficult to assess the possibility to use a multiple discrimination approach to such a case and to assess its added value. It might further the understanding of discrimination as a social phenomenon (which is important), but the current legal approach – arising from the directives – hardly takes account of the perpetrators’ intentions and social backgrounds of discrimination.

However, had it been available, statistic evidence about intertwining grounds of discrimination with regard to the labour market might have been of added value here.

It might have proven a possibly significant under-representation of females of foreign descent in this particular sector of the labour market. Such a fact could have helped the Dominican women to underline her weak position and could have substantiated her accusations.

6. Effects of legislation and case law in practice There is no specific legislation concerning the issue of multiple discrimination. The only case before the ETC in which there was a judgment (Opinion) based on a intersectional approach has not had any perceptible effects yet.

7. Role of equality bodies As mentioned above, the ETC has applied the GETA only once in such a way that the intersecting grounds can constitute discrimination together, and it has shown willingness to accept such an effect in other cases (however, there was a lack of evidence in these cases). Apart from this, the Dutch ETC has not yet taken a specific role regarding this issue.

The Dutch ETC has the competence to perform surveys and give advice about certain issues, apart from dealing with actual complaints. As there is still great unfamiliarity and uncertainty about the issue and the extent of the problem of multiple discrimination, the ETC could consider to conduct research into this issue, or perform specific statistical surveys of the labour market.

8. Reinforcement of legal approach at EU level necessary?

There still seems to be too little knowledge about the actual extent of the problem.

The author is not yet convinced if, and if so, what kind of special legal approach could be of added value. Non-legal research, such as statistic evidence about intertwining grounds of discrimination with regard to the labour market might, however, be of added value for the legal position of victims of discrimination (in terms of

–  –  –

9. Community-law definition of multiple discrimination necessary?

This is not necessary; see under 8.

10. Available literature or research?

– Ellen-Rose Kambel ‘Op het kruispunt van gender en etniciteit. Zmv-vrouwen in het Nederlands werkverkeer’ (At the crossroads of gender and ethnicity. B(lack), M(igrant) and R(efugee) women on the labour market highways) (editorial), Nemesis 2001 No. 4 pp. 103-106.

– Toni Lester ‘Race, Sexuality, and the Question of Multiple, Marginalized Identities in the U.S. and European Discrimination Law’ in: Toni Lester (ed.) Gender Nonconformity, Race and Sexuality: Charting the Connections pp. 84-101 Madison, WI, University of Wisconsin Press 2002.

– Mieke Verloo ‘Multiple Inequalities, Intersectionality and the European Union’, European Journal of Women’s Studies Vol. 13(3) 2006 pp. 211-228.

– Virginia W. Wei, ‘Asian women and employment discrimination: Using intersectionality theory to address Title VII claims based on combined factors of race, gender and national origin’, Boston College Law Review Vol. 37:4 1996 pp. 771-812.

11. Further research

The following legal and non-legal research questions could be addressed:

– Is there any statistic evidence about under-representation in different sections of the labour market of persons with multiple features which are grounds discrimination findable?

– What is the real extent of the actual problem?

– What kind of legal approaches might be of added value in this respect? Can they be fit into the present framework of equal treatment law, as it arises from the directives, or is a whole new approach necessary?

–  –  –

1. Concept of multiple discrimination in legislation multiple discrimination is not explicitly prohibited in statutory legislation or statutory legal instruments in the field of non-discrimination.

2. Case law Case No. 1/2008 is the first case where the Equality Tribunal recognized genderrelated multiple discrimination. Two women with an Asian background entered a hotel in downtown Oslo and asked for a room for the night. When the receptionist on duty discovered that the women’s home address was in the Oslo area, they were asked why they were not going to spend the night at home. The women were subsequently refused a room at the hotel. The hotel had issued written guidelines permitting staff to refuse access to people domiciled in Oslo and its environs. The women asked for an explanation as to why they had been refused a room. The receptionist informed them of the hotel’s guidelines, explaining that the reason was that guests living in Oslo and its environs could be prostitutes or drug addicts who sought access to the hotel in 98 Multiple Discrimination in EU Law order to cause trouble. The Tribunal assessed the case pursuant to Section 3 of the Gender Equality Act and Section 4 of the Anti-Discrimination Act. The Tribunal found circumstances which gave grounds to believe that the hotel had attached negative importance to the women’s gender and ethnicity background when they were refused a hotel room. In this connection, the Tribunal referred to another clause in the guidelines which nevertheless allowed staff members to offer a room to guests whose home address is in Oslo and its environs. A concrete assessment was thus made in each individual instance. The women had no luggage with them, only shopping bags, when they arrived at the hotel. They explained that they were decently dressed, were not wearing make-up, and that they were not intoxicated. Further, the Tribunal attached importance to the receptionist’s comment about prostitutes and drug addicts.

This explanation of the guidelines was given in spite of the fact that there was nothing to indicate that the two women could be linked to the risk groups against which the hotel wished to protect itself using the guidelines. The burden of evidence was therefore passed to the hotel pursuant to Section 16 of the Gender Equality Act and Section 10 of the Anti-Discrimination Act. The hotel was unable to substantiate that only circumstances other than gender and ethnicity lay behind the two women being refused a room. Apart from a general reference to the fact that the guidelines allow hotel staff to turn away people domiciled in Oslo and its environs, the hotel offered no explanation as to why the receptionist considered it necessary to use the opportunity to refuse access in this instance. The receptionist was aware that discretion could be shown. The Equality Tribunal found both grounds of discrimination to have been violated, both Section 3 of the Gender Equality Act of 9 June 1978 No. 45 and Section 4 in the Discrimination Act of 3 June 2005, No. 33.

The Tribunal found that ‘there are circumstances that give grounds to believe that the hotel attached negative importance to B and her girlfriend’s gender and ethnicity when they were refused a room at the hotel, where the combination of gender and ethnic background was the basis for turning them away. The Tribunal does not find that the hotel has substantiated that only other reasons lie behind why B and her girlfriend were refused a room at the hotel’.105 Case 8/2008 was the second case that the Tribunal handled which specifically addressed multiple discrimination. A municipality discriminated on the grounds of age and gender in connection with the appointment of a person to a temporary position and the subsequent permanent position as a fire-fighter. The Tribunal found that both age and gender, each separately, had been given negative weight during the application and hiring procedure of a female fire-constable. The Tribunal evaluated the case both under Gender Equality Act Section 3 and 4 and under the Working Environment Act Section 13-1 and Section 13-2.

The case concerned a female fire-fighter aged 41 who was employed in the parttime fire brigade. She first applied for a temporary position with the opportunity of an extension and subsequently for a permanent position in the full-time fire brigade. A male fire-fighter aged 27 who was also employed in the part-time fire brigade was appointed to both the temporary position and subsequently to the permanent position.

The Tribunal found that negative importance had been attached to the complainant’s

age in connection with the appointments. In the announcement, it was stated:

‘Applicants should be between 22 and 35 years of age’. In the case material concerning the position as a substitute, it was explicitly stated that importance would The full English text the case can be accessed on http://www.diskrimineringsnemnda.no/sites/ d/diskrimineringsnemnda.no/files/62958820.doc, accessed 20 April 2009.

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