«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
The project sought to describe and improve the understanding of the situation of Romani women, with regard to the vital subject of healthcare, to examine it in terms of applicable standards and the genuine needs of the population, as well as to draw appropriate conclusions and make practical recommendations. The countries visited were: Bulgaria, Finland, France, UK, Greece, Hungary, Ireland, Lithuania, Moldova, Poland, the Netherlands, Romania, Serbia and Montenegro, Slovakia and Spain; http://www.eumc.eu.int/eumc/index.php?fuseaction=content.dsp_cat_content& contentid=3fb3ffb26b5db&catid=3fb3fa7f43f49&search=1&frmsearch=Breaking%20the%20barrie rs&lang=EN, accessed 20 February 2009.
Report from the programme ‘Phare 2003: Enforcement of the justice system from a Roma perspective’, carried out in 2005-2006 (written by Anna Lipowska-Teutsch, Marcin Dziurok and Ewa Ryłko) and the report on the project ‘Facing hate crimes’ (written by Anna Szul Szywala), studying the attitude of public authorities towards Roma in the context of the protection of human rights, in particular the principle of equality, carried out in 2007, both by the NGO Association of Crisis Intervention, in Krakow (crisisintervention.free.ngo.pl), with the financial support of the Ministry of Labour and Social Policy. The reports are unpublished. I received the information by courtesy of the Director of the Association mentioned above, Dr. Anna Lipowska-Teutsch.
Legal consultations for persons especially vulnerable to discrimination have been conducted in 2007, as part of the project named ‘Facing hate crimes’.
This project was carried out by the Foundation ‘Autonomia’ with the participation of several other feminists or lesbian NGOs; www.zumi.pl/1450587,Fundacja_Autonomia,Krakow,firma.html – 27k, accessed 20 February 2009.
http://www.bezuprzedzen.org/aktualnosci/art.php?art=264. Sources of this information are the
report of the Commission ‘Tackling Multiple Discrimination: practices, policies and laws’:
Multiple Discrimination in EU Law 107 persons working with women and girls who are especially vulnerable to multiple discrimination (teachers, psychologists, educators, social workers, health providers, police officers and persons working for the system of justice). In the framework of this project, another publication was translated into Polish: Homophobia – A weapon of Sexism, written by Suzanne Pharr, also available online.124
11. Further research In my opinion, further research might be useful in Member States that have already introduced a legal definition of multiple discrimination. The goal of such research should be to establish whether the introduction of the notion of multiple discrimination into legislation has improved the protection of individual victims of discrimination in the practice of conciliatory or litigation proceedings and to assess, in accordance with the principle of gender mainstreaming, the impact of such a legal amendment on the situation of women and men.
PORTUGAL – Maria do Rosário Palma Ramalho
1. Concept of multiple discrimination in legislation Multiple discrimination (as a comprehensive notion, including compound and intersectional discrimination and all other forms of discrimination consisting of any combination of two or more grounds) is not defined as such in national legislation. In the Labour Code,125 where discrimination issues are addressed in a general and comprehensive way, several grounds of discrimination are listed (discrimination based on association, age, sex, sexual orientation, civil status, economic situation, origin or social condition, genetic features, race, ethnic origin, age, disability, reduced working skills, political or ideological beliefs, union affiliation, language or religion)126, so the situation of some of them arising together in one particular situation and being considered together is not unlikely. However, the law does not develop the concept of multiple discrimination as such and the prohibition of multiple discrimination arises only indirectly from the general prohibition of any form of discrimination which is explicit in the law (Article 24 No. 1 of the Labour Code).
2. Case law We are not aware of any cases having been initiated. Anyway, we would like to emphasise that in Portugal, discriminatory issues (even when based on a singular ground) are seldom brought before court, except when maternity issues are also involved.
3. Any cases where gender-related discrimination is overlooked?
We have no knowledge of such cases.
‘Multiple discrimination: the need for justice for the whole person’; http:///www.era.int, and publications of K Crenshaw, K Zappone and S. Fredman.
http://www.bezuprzedzen.org/doc/homofobia_web.pdf, accessed 30 March 2009.
A new Labour Code entered into force in Portugal just a few days ago. The new Code was approved by Law No. 7/2009, on 12 February 2009.
Article 24 No. 1 of the Labour Code.
5. Description of a specific case This question does not apply to Portugal, given our previous answers.
6. Effects of legislation and case law in practice We have no knowledge of any specific information on this issue.
7. Role of equality bodies We have no knowledge of any specific work performed by the Portuguese Equality Bodies in this area. However, we think that an important role of the agencies in this area could be to disseminate information on the subject at several levels (unions, enterprises, employees, labour inspection services and the general public) and to conduct surveys in this field, to make this issue more visible, since even the concept of multiple discrimination is still relatively unknown in Portugal.
8. Reinforcement of legal approach at EU level necessary?
Both at EU level and at national level, it is important to develop a clear approach to the notion of multiple discrimination, mainly in order to make the practice of gender discrimination together with other sources of discrimination more visible, since these various sources of discrimination combined with gender discrimination are very common and may be misunderstood (or even ignored) when they are viewed separately on each ground.
The development of this new concept would also be important to make more visible insidious forms of gender discrimination that may in practise arise from other rights (even from fundamental rights) – for instance, different treatment of women based on religion and on the fundamental right of religious freedom.
Finally, we think that this new concept may be useful to combat multidisciplinary problems in a more effective way, since the proof of each single source of discrimination can be more difficult than the proof of a combination of several grounds of discrimination. But, at this level, it is very important to ensure that the notion of multiple discrimination will be able to facilitate the proof, rather than to make it more difficult. In this sense, the reversal of the burden of proof attached to this new concept is essential in our view.
9. Community-law definition of multiple discrimination necessary?
Yes. Such a definition would at least make the issue of multiple discrimination more visible to the Member States and would enable them to develop an integrated approach regarding discriminatory issues at the national level.
10. Available literature or research?
We have no knowledge of any specific literature on this topic in our country.
11. Further research Yes, further research is necessary, since this is a very important issue in our opinion.
We believe that the first aspect that should be addressed is the importance and visibility of this issue at a national level, since the concept of multiple discrimination is a new concept.
Multiple Discrimination in EU Law 109 ROMANIA – Roxana Tesiu
1. Concept of multiple discrimination in legislation The concept of multiple discrimination is foreseen in Romanian legislation in such a simplistic manner that it makes it rather impossible to be applied in practice. The provisions of Article 4(h) of the reissued 2002 Act on Equal Opportunities127 stipulates that ‘multiple discrimination is understood to be any discriminating action based on two or more discrimination criteria’. The concept as provided for by law does not detail elements of compound or intersectional discrimination. Although not directly provided for by the Governmental Ordinance 137 of 2000128 (hereafter referred to as 2000 Anti-Discrimination Act), the concept of multiple discrimination is implied, however, by the legal provisions of the Governmental Ordinance 77 of 2003129 which state that any difference, exclusion, restriction or preference based on two or more grounds of unlawful discrimination constitutes an aggravating circumstance in addition to the establishment of the contraventional liability, unless one or more of its components do not fall under criminal law.
2. Case law The 2000 Anti-Discrimination Act represents the national legal framework addressing anti-discrimination. It provides for the establishment of the national equality body, namely the National Council for the Combat of Discrimination (hereafter referred to as NCCD or the Council). The NCCD’s mandate focuses on ensuring the enforcement of the anti-discrimination legal provisions as stipulated by the 2000 AntiDiscrimination Act.
There is no evidence of cases, including in the case law of the Equality Body, in which gender in combination with any other ground of discrimination was recognized as multiple discrimination. The 2007 NCCD Activity Report does not address the issue of multiple discrimination. All data available in the 2007 Activity Report130 is built based on distinct grounds of discrimination. One possible explanation for such an approach is given by the fact that the 2000 Anti-Discrimination Act does not explicitly address the concept of multiple discrimination. The concept itself is provided for by the 2002 Act on Equal Opportunities. This provides the basis for the Act No. 202 of 19 April 2002 on equal opportunities and treatment between women and men, reissued, published in the Official Gazette No. 150 of 1 March 2007. Act 202 of 2002 was republished on the basis of Article III of Emergency Ordinance No. 56 of 2006 for the completion and modification of Act 202 of 2002, published in Official Gazette No. 768 of 8 September 2006, approved through Act No. 507 of 2006, published in Official Gazette No. 10 of 8 January 2007 by giving the texts a new numbering.
Governmental Ordinance No. 137 of 2000 on preventing and sanctioning all forms of discrimination, republished, published in Official Gazette No. 431 of 23 September 2000. See also Act No. 48 of 2002 concerning the adoption of the Governmental Ordinance 137 of 2000 regarding the prevention and sanctioning of all forms of discrimination. See also Governmental Ordinance No. 77 of 2003 for the amendment of Governmental Ordinance 137/2000 regarding the prevention and sanctioning of all forms of discrimination. See also Act No. 27 of 2004 concerning the adoption of Governmental Ordinance No. 77 of 2003 for the amendment of Governmental Ordinance No. 137 of 2000 regarding the prevention and sanctioning of all forms of discrimination.
Governmental Ordinance 137 of 2000 was amended subsequently to assure transposition of the Directive 2000/43/EC and the Directive 2000/78/EC.
Article 2(4) Governmental Ordinance 77 of 2003 published in Official Gazette No. 619 of 30 August 2003.
http://www.cncd.org.ro/presa/CNCD-a-prezentat-raportul-de-activitate-pe-anul-2007-19/?language =ro, accessed on 18 February 2009.
110 Multiple Discrimination in EU Law National Agency on Equal Opportunities (hereafter referred to as NAEO). While in July 2006, the Parliament adopted an amendment clarifying that the NAEO can only receive and forward petitions on alleged discrimination on grounds of gender to the NCCD, by law the NCCD is responsible for all aspects regarding anti-discrimination in Romania. As autonomous public authority under the control of the Parliament, the NCCD is the specialised body mandated to deal with all forms of discrimination on every ground, including sex, race or ethnic origin, nationality, religion, disability, sexual orientation and it carries its mandate based on the 2000 Anti-Discrimination Act.
Another explanation of the absence of data on multiple discrimination in the NCCD 2007 Activity Report, is given by the fact that the 2000 Anti-Discrimination Act is built on the premises of addressing the concept of discrimination from a onedimensional perspective, namely based on individual and distinct grounds. According to public declarations of the NCCD President, in practice, discrimination allegations are investigated separately for each ground contained in the complaint. If the investigation proves the existence of more unlawful discrimination grounds, the fine applied shall be double or triple, reflecting the existence of more grounds.131
3. Any cases where gender-related discrimination is overlooked?
There is not enough evidence132 to conclude that any cases of gender-related multiple discrimination have been dealt with under the other discrimination grounds with the gender-related discrimination being overlooked.
4. Proof and procedural problems As the concept of multiple discrimination is not used within the NCCD case law or in any court decision, problems regarding proof and other procedural elements cannot be assessed.
5. Description of a specific case No case is available involving gender discrimination and one or more other grounds of discrimination.