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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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Multiple Discrimination in EU Law 99 be attached to age when assessing the applicants. Further, it was stated: ‘Of the applications received, there is one applicant – C – who fulfils the requirements set forth in the announcement.’ In the case material concerning the permanent position, it was stated: ‘As regards the announcement, age has been included (...)’ and ‘C is 27 years old and within the preferred age group (see the announcement).’ In the recommendation, the applicants were ranked according to age. The complainant, who was the oldest of the three applicants, was recommended as number three. The Tribunal also found it proven that negative importance was attached to the complainant’s gender in connection with the appointments. Among other things, the Tribunal attached importance to the fact that the complainant was just as qualified as the man who was offered the positions. Only the male fire-fighter who was appointed to the positions was recommended for the substitute position. The complainant’s qualifications were not assessed at all, despite the fact that she had worked at the municipal fire brigade for four years and that both unions pointed out that the complainant, as a woman, had the first right of refusal to the position. Further, the announcements contained no wording urging women to apply, despite the fact that women are clearly underrepresented in the municipal fire brigade. The Tribunal pointed out that pursuant to Section 1 a of the Gender Equality Act, the municipality has a duty to actively, regularly and in a targeted manner in order to achieve equality between the genders within its operations. The Tribunal also attached importance to the link between the lack of assessment of the complainant as being qualified for the temporary position, the fact that she was the only woman in a male-dominated environment and that after she had brought up matters worthy of criticism she was considered by her employer to be a difficult employee. The municipality’s appointments thus represented a breach of both the ban on discrimination on the grounds of age in Section 13-1 of the Working Environment Act and the ban on discrimination on the grounds of gender in Section 3 of the Gender Equality Act. The Tribunal’s decision was unanimous.

The multiple character of discrimination has not been reflected in higher sanctions or damages. So far we only have the above-mentioned cases from the Equality Tribunal, and the Tribunal is not entitled to award damages. There are no cases from the civil courts, but the regular rules of compensation laws do allow increased compensation where multiple causes may constitute a double burden.

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

Apart from the two cases mentioned above, there are no specific cases in which gender-related discrimination was overlooked. However, the Ombud has in previous press interviews addressed the issue of the intersectionality between gender and religion, as there are a number of cases relating to wearing the hijab, where the woman who was discriminated against defined this as discrimination because of religion, but not because of her gender. In a landmark case from 2001, the Gender Equality Board of Appeals stated that this was discrimination because of gender. In 2001, religion was not yet a legal ground of discrimination, and the question of intersectionality was thus not addressed by the Board. From research analysing the gender perspectives in Norwegian case law – or lack thereof – I found that the gender perspective was hardly addressed.106 I would thus assume that the gender perspective Helga Aune Deltidsarbeid. Vern mot diskriminering på individuelt og strukturelt grunnlag, PhD thesis, 2009, University of Oslo, to be published, in Norwegian, at Cappelen Damm Publishing House in the autumn of 2009. See Chapters 6-10 for an analysis of the civil case law and Chapter 11 for analysis of the Norwegian Labour Court cases regarding part-time work.

100 Multiple Discrimination in EU Law is often overlooked in other parts of the legal system as well, except for the fairly new cases of the Tribunal as described above.

4. Proof and procedural problems Formally, there are no particular problems of proof and/or procedural problems and/or problems related to comparisons in cases of multiple discrimination. However, in case 8/2008 (age/sex) the Ombud included the rather odd statement that as long as the burden of proof had concluded that discrimination had occurred on basis of age, the Ombud did not see reason to apply the burden of proof rule regarding sex discrimination. The Tribunal did not agree with that view, and found that the rule on the burden of proof could be used for each of the separate grounds of discrimination, as long as ‘there are circumstances that give reason to believe that differential treatment had occurred’. The Tribunal was very brief in its reasoning on this matter.

5. Description of a specific case For the two cases available, see under 2.

6. Effects of legislation and case law in practice There is no information available.

7. Role of equality bodies The equality bodies are responsible for the enforcement of all prohibitions of discrimination regardless of sex, ethnic background, language, nationality, disability, sexual orientation and religion. However, the possibility of several grounds being violated at the same time has not been stressed by the equality bodies. The latest quite heated media debate in Norway concerned the issue of whether or not the Muslim headscarf should be allowed as an integrated part of the Norwegian police uniform.

The debate tends to focus quite simply on the matter of freedom of religion and not as much on the gender stereotypes and the freedom of the individual. The Ombud should take a careful approach in the complex weighing of the various values, including women who are forced to wear the headscarf as a result of internal pressure in various communities.

8. Reinforcement of legal approach at EU level necessary?

Multiple discrimination is very often a result of mixed structural patterns (social, economic and socio-economic), e.g. both belonging to a certain group of women and to a specific ethnic immigrant group where religion may put strong pressure on gender stereotypes. Identification of these structures is important in order to be able to initiate changes, which in turn may be important in order to prevent indirect discrimination in the long run. Technical rules stressing the double wrong in multiple discrimination in itself will not tackle the problem, but will be a small step in that direction. The legal technique that may constitute a bigger step will, as I see it, be to increase the obligation to work on changing the gender stereotypes in line with CEDW Article 5a) (and Articles 10 and 11), and connect this more directly with the prohibition against indirect discrimination. The stereotypes are the commonality in most cases of indirect discrimination.

9. Community-law definition of multiple discrimination necessary?

Yes, see my answer under 8. A community-law definition of multiple discrimination may help identify structural patterns which in turn may be a cause of discrimination.

Multiple Discrimination in EU Law 101 That type of legislation should in my opinion be combined with reporting and activity obligations for public authorities as well as for private enterprises as regards surveying various structural/systemic mechanisms that may lead to multiple discrimination. A definition of multiple discrimination will most likely add to the awareness that multiple factors may coincide and together place persons in doubly weak positions. However, it is important in my opinion that thought is given to the question whether or not the level of sanctions should also reflect that a person has been the victim of multiple discrimination, perhaps even more than if only one ground of discrimination is violated.

10. Available literature or research?

There is little Norwegian literature specifically on multiple discrimination. Hege

Scheie has published the following articles on the topic:

– Hege Skjeie ‘Multiple equality claims in the practice of the Norwegian anti discrimination agencies’ in: Dagmar Schiek and Victoria Chege (eds.) European Union Non-Discrimination Law. Comparative Perspectives on Multidimensional Equality Law London and New York, Routledge pp. 295-309.

– Hege Skjeie ‘Headscarves in Schools: European Comparisons’ in: Jenny Goldschmidt and Titia Loenen (eds) Religious pluralism and human rights in Europe: Where to draw the line? Intersentia 2007 pp. 129-146.

– Birte Siim and Hege Skjeie ‘Tracks, Intersections and dead ends. Multicultural challenges to state feminism in Denmark and Norway’, Ethnicities, Vol. 8 (3) (2008), pp. 322-344 In addition, I would like to refer to Ronald Craig’s PhD thesis: Systemic Discrimination in Employment and the Promotion of Ethnic Equality. Craig107 discusses various ways of identifying systemic structures (regarding ethnic discrimination) as well as the need to strengthen the control and enforcement of activity duties for enterprises.

I would also like to refer to my PhD regarding part-time work with special focus on sex discrimination, which discusses the relationship between the protection against discrimination on an individual as well as on a structural level, as well as CEDAW Article 5a.108

11. Further research Yes, see my answer under 8.

–  –  –

1. Concept of multiple discrimination in legislation In Poland, there is no definition of multiple discrimination and there is no explicit prohibition of such discrimination, neither in the Labour Code nor in any other statutory acts, providing for the prohibition of discrimination in relation to access to the labour market or in social security regulations. The draft law of 22 December 2008, implementing several EU equality directives, including the Race Directive and R. Craig Systemic Discrimination in Employment and the Promotion of Ethnic Equality, Martinus Nijhof Publishers 2007, http://www.brill.nl/product_id25533.htm, last accessed 19 May 2009.

Helga Aune Deltidsarbeid. Vern mot diskriminering på individuelt og strukturelt grunnlag, PhD thesis, 2009, University of Oslo, to be published at Cappelen Damm Publishing House in the autumn of 2009.

102 Multiple Discrimination in EU Law the Service Directive, does not refer to this notion either. However, the Polish legislator did acknowledge that discrimination may occur on more than one ground. In the definition of the concepts of direct and indirect discrimination, the laws state that each form of discrimination may occur on the basis of one or several grounds (Article 18(3a) (3) for direct and Article 18(3a) (4) for indirect discrimination). In addition, these anti-discriminatory provisions, since they jointly refer to all possible grounds of discrimination, seem to create favourable conditions for special protection against multiple discrimination. The same may be said for the attempt, provided for in the draft law of 21 December 2008, to confer on one body (the Commissioner for the Protection of Citizens’ Rights) the duty to assist all victims of alleged discrimination, without regard to the ground of discrimination and area in which it occurs.

Nevertheless, those who drafted the law, seemed to be unaware of this opportunity since the notion of multiple discrimination does not appear in any official explanation of the respective law amendments.

2. Case law An example of the recognition of gender-related multiple discrimination may be the decision of the Supreme Court (the Labour and Social Security Chamber) of 4 October 2007 (I PK 24/07),109 in which the Court considered as ill-founded the cassation claim brought by an employer against a female employee, who had alleged that she has been harassed and discriminated against on the grounds of age and appearance. The perpetrator was a female superior who, in the opinion of the claimant, had treated unequally – without any rational justification – all her female subordinates who were young and attractive. Amongst them was the claimant who had been offended and humiliated by her actions. She was also forced to work overtime, subject to unequal conditions, compared to the other employees. The claimant informed the perpetrator’s superiors about this situation, but they did not react and did not prevent her dismissal. The Court of First Instance acknowledged that discrimination had taken place and that the behaviour of the employer violated Article 18(3a)(1) of the Labour Code.110 The Court decided that the claimant should be awarded compensation, amounting to PLN 10 000 (approximately EUR 3 000). This verdict was upheld by the Appeals Court and by the Supreme Court. The Supreme Court explained, while dismissing the cassation claim filed by the employer that, firstly, the claimant had been harassed within the meaning of Article 18(3a)(5) point 2 of the Labour Code111 by the superior’s conduct, which violated her dignity and humiliated her. The employer was found liable for discrimination, since he tolerated such situation. Secondly, it was established that the claimant’s young age and Case I PK 24/07, unpublished.

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