«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
11. Further research Further research and collection of data are very important. Only on the basis of collected data will it be possible to more effectively adjust the programmes aimed at http://www.moznostvolby.sk/ShadowReport_CEDAW_Slovakia2008_ENG_FINAL.pdf
1. Concept of multiple discrimination in legislation In Slovene statutory legislation multiple discrimination is not explicitly prohibited.
2. Case law So far, the issue of multiple discrimination has not been dealt with in Slovene case law or in decisions of the Office for Equal Opportunities. However, in 2005, two petitions claiming discrimination on more than one ground were submitted to the Advocate of the Principle of Equality (hereinafter the Advocate) who works within the Office for Equal Opportunities. In the first case, a female member of a Roma minority claimed gender discrimination together with discrimination on ethnic origin.
The petitioner, unaware of her rights, signed an agreement with her cohabiting partner after the end of their relationship on joint custody of their daughter. After she found out about the consequence of their agreement, she initiated a lawsuit and an injunction request for the sole custody of their child before the court. In addition, she filed a petition with the Advocate. The Advocate did not rule in this case, because the petitioner did not cooperate with the Advocate and, therefore, the case was not heard by the Advocate. The court decided in favour of her ex-partner.
In the second case, the petitioner was a disabled woman, a member of the German minority who claimed to have been discriminated against on grounds of gender, disability and ethnic origin many years ago. Unfortunately, the Advocate did not consider or rule in this case either, because the petition was not submitted in time.
3. Any cases where gender-related discrimination is overlooked?
Since there is no case law on this matter, this cannot be discussed.
4. Proof and procedural problems Since there is no case law on this matter, this cannot be discussed..
5. Description of a specific case Since there is no case law on this matter, this cannot be discussed.
6. Effects of legislation and case law in practice There is not much information available. There was a survey carried out by the Office for Equal Opportunities and the Association of Handicapped People in Movement of Slovenia (VISION) in November 2008: Violence against the disabled in the private sphere and in partnerships.142 The survey found that disabled women are often discriminated against on both grounds, disability and gender.
7. Role of equality bodies The Office for Equal Opportunities covers multiple grounds of discrimination (gender, nationality, racial or ethnic origin, religious or other belief, disability, age, http://www.uem.gov.si/si/delovna_podrocja/tematski_posveti/nasilje_nad_invalidnimi_osebami/ nasilje_nad_invalidnimi_osebami/, accessed 26 March 2009.
116 Multiple Discrimination in EU Law sexual orientation). Since multiple discrimination is not explicitly defined in Slovene legislation, it mostly focuses on individual grounds and does not have any strategy how to tackle multiple discrimination. Also, multiple discrimination is not mentioned in the Resolution on the National Programme for Equal Opportunities for Women and Men (2005-2013) which is a strategic document defining objectives and measures as well as key policy makers for the promotion of gender equality in various areas of life of women and men in the Republic of Slovenia during the period 2005–2013.
However, it seems that the Office is aware of the problem and does recognize it in some projects, brochures (leaflet on non-discrimination), surveys (violence against the disabled) and in their annual reports when dealing with cases of alleged discrimination on multiple grounds.
However, it is certain that it should recognize the importance of the issue and should start initiating studies, surveys, campaigns, seminars, collecting statistical data and develop awareness-raising activities on this issue, which would eventually result in a higher number of claims of discrimination. It should also recognize the issue in the next Resolution on the National Programme for Equal Opportunities for Women and Men and therefore make multiple discrimination more visible, since it is evident that it exists.
8. Reinforcement of legal approach at EU level necessary?
I think reinforcement of the legal approach aimed at combating multiple discrimination is necessary at EU level. In order to strengthen the existing legal protection, I would propose the adoption of an exact definition of the concept of multiple discrimination at both EU level and national level, which would lead to a common understanding of this notion. In addition, specific provisions to combat multiple discrimination, including intersectional discrimination, should be introduced in order to increase awareness of the problem and therefore provide greater and more effective protection to persons being discriminated against on several grounds.
9. Community-law definition of multiple discrimination necessary?
An EU definition of multiple discrimination would strengthen the existing legal protection at EU and at national level for cases of gender-related multiple discrimination.
10. Available literature or research?
All available literature or research on multiple discrimination in Slovenia is listed in the bibliography of the report Tackling Multiple Discrimination. Practices, policies and laws.
11. Further research Further research on multiple discrimination is, in my opinion, definitely recommended at EU level as well as at national level. In this research, questions regarding damage assessment in cases involving two or more grounds of discrimination and questions on how to develop legal frameworks to handle multiple discrimination cases should be addressed.
Multiple Discrimination in EU Law 117 SPAIN – Berta Valdés
1. Concept of multiple discrimination in legislation Article 14 of the Spanish constitution contains an open list of discrimination grounds, although it does not specifically mention the possibility of multiple discrimination.
Law 3/2007 on Effective Equality between Women and Men contains three references related to multiple discrimination. The Introduction (II) gives special consideration to ‘cases of double discrimination and to the particular difficulties that women face when in a situation of vulnerability, like women belonging to a minority, migrant women and women with disabilities’. Article 14.6 of Law 3/2007 states the general criteria for actions of public authorities. One of the criteria will be ‘consideration of the particular difficulties in which women included in groups of special vulnerability (at risk of social exclusion) are, such as those belonging to a minority, migrant women, girls, women with disabilities, elderly women, widows and female victims of domestic violence, for which public authorities could also adopt measures of positive action’. Finally, Article 20 c) of Law 3/2007 states that the authorities shall, when preparing studies and statistics, introduce indicators and the necessary mechanisms which are important to show how the incidence of other variables can generate situations of multiple discrimination in the various spheres of action.
In conclusion, Spanish legislation recognizes the existence of possible situations of multiple discrimination and includes certain obligations for the authorities (to consider the special vulnerability derived from multiple discrimination, possibility of adopting positive actions to tackle multiple discrimination and to reflect multiple discrimination in studies and statistics).
2. Case law Multiple discrimination is not usually clearly identified in cases and the approach before the courts is usually limited to a single ground. An important example was the situation of an independent worker (a woman) and her inclusion in the agrarian regime of social security. One of the requirements to be included in this regime was to obtain the main income from the agrarian economic activity, taking care of her own needs and those of her relatives living with her. This means that this income should be the highest obtained in the nuclear family. This norm, apparently neutral, prevented the inclusion of women in the regime of social security because of two reasons. First, due to the condition of women in Spanish social reality, where the highest income is usually that of the man. Second, because of her family condition: being married and belonging to a nuclear familiar in which the higher income is provided by the husband. This situation was modified by Law 36/2003 on Measures of Economic Reform, but until that moment there were enough claims from female workers, although the existence of indirect discrimination or a double ground of discrimination was not always identified (example: the sentence of the Superior Court of Justice of Catalonia 6676/2001 of 30 July 2001; the sentence of the Superior Court of Justice of Andalusia (Seville) 152/2001 of 18 January 2001).
A second example is the inequality in cases of part-time work in relation to social security due to the old Article 12.4 of the Worker’s Statute (already amended). The rule to calculate the requirements needed for part-time workers to become entitled to social security benefits leads to a disproportionate result from the point of view of the equality principle. In this way, the worker does not just obtain a lower pension when there are part-time working cycles in his labour life (which is correct, based on the smaller contributions made), but the part-time worker’s access to social protection 118 Multiple Discrimination in EU Law also becomes difficult because the number of worked days required is higher.
Therefore, the Constitutional Court, in sentence 253/2004, declared the unconstitutionality of the old Article 12.4 of the Worker’s Statute due to violation of the principle of equality from the point of view of proportionality between the adopted measure, the result of the measure and the final purpose. From another perspective, the part-time contract is an institution that in fact mainly affects women. The impact of the rule to calculate the requirements needed for this type of contracts affects a much greater proportion of women than of men. Since there are no reasons of social policy that can justify that measure, this constitutes indirect discrimination. The situation of multiple discrimination results from the direct discrimination of having a part-time contract and from the indirect discrimination mainly affecting women.
A third example is the discrimination of immigrant women due to a double condition of women in situations of domestic violence and women belonging to another race or ethnic group or women having another religion (Muslim). One possible situation is when the condition of illegal immigrant makes it difficult to lodge a formal complaint regarding violence due to a fear of deportation, according to studies presented by NGOs and research.143 Another possible problem arises when immigrant women work as domestic employees with a specific work contract. The reason is that the protective measures in case of domestic violence (such as geographic mobility, suspension of the contract etc.) which are offered to employees working in enterprises do not apply to these specific domestic employees.144
3. Any cases where gender-related discrimination is overlooked?
Constitutional Court Case 69/2007, of 16 April 2007, analyses the situation of the refusal of a widow's pension to a woman because of not satisfying the requirement to have a legally recognized marriage with the worker (deceased). The couple had married according to gypsy customs in 1971, although legally this marriage does not give the spouse any right to a widow's pension. The Constitutional Court considers that discrimination does not exist, since civil marriage is not conditional to one race excluding others. The requirement of a civil marriage is an option of the legislator, who can exclude other forms of cohabitation, for example living together or marriages concluded according to gypsy customs. The alleged reason for discrimination is race or social condition, and sex discrimination is never mentioned. From my point of view, pleading the case to include multiple discrimination considering the condition of being a woman and also indirect discrimination could have had other results. In particular, as described by Rey Martínez,145 when taking into account the condition of gypsy women who are socially and culturally submitted to marriage according to the gypsy rite and to a form of life where the man is the one who works. This would be a discriminatory situation that could not have applied to a non-gypsy woman nor to a gypsy man. A gypsy man would fall under the same law, but the effects would be different because it is generally the man who works. The woman does not become entitled to a widow’s pension if she has not worked previously during a certain period of time.
Annual studies from the Organización SOS Racismo. ‘Violencia doméstica y la mujer inmigrante’, by Rosario Gaspar Blanch, Boletín de Azanzadi Penal 1/2003.
‘Extranjeras y mujeres, la irregularidad en la precariedad. Sin papeles ni derechos’ by Pilar Rivas Vallejo. Jurisprudencia Aranzadi Social 20/2005. (‘Foreign women and women, the irregularity in uncertainty. Without papers or rights’).
‘La discriminación múltiple, una realidad antigua, un concepto nuevo’ in Revista Española de Derecho Constitucional un. 84, 2008 (‘Multiple discrimination, an old reality, a new concept’).
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4. Proof and procedural problems There are no cases where multiple discrimination is expressly and clearly considered.
In procedures, pleading arguments are usually limited to one of the grounds of discrimination, except in sentence 253/2004 of the Constitutional Court regarding part-time workers. Specific problems have not been observed.
5. Description of a specific case No specific cases are known.
6. Effects of legislation and case law in practice See under 10.
7. Role of equality bodies The Women’s Institute mainly works on one discrimination ground (gender/sex). As far as I know, their approach to multiple discrimination is not thorough enough for them to have a definition of the phenomenon