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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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The problem of establishing hierarchies at the expense of gender equality and in favour of racial and other equalities could, for example, be traced to conflicts between a more socio-economic and a more human rights based approach to equality law (Nousiainen 2009). Another example: economically motivated justifications for unequal treatment on grounds of age (Article 6 Directive 2000/78/EC) may contradict the protection of individual autonomy which has been central in the field of gender equality. In cases where age discrimination and (indirect) gender discrimination intersect, this may lead to either lowering or enhancing the threshold for justifying different treatment. In order to decide between such divergent results, a common value base for the field would be needed. This has not been fully established yet.

Accordingly, one would expect the problems of legally addressing multiple discrimination to be aggravated by these issues that are specific to EU law.

b) ECJ case law It has been rightly noted that multiple discrimination could always have surfaced in EU non-discrimination law, even when only discrimination on the grounds of gender and nationality had been prohibited (Nielsen 2009: 37). In addition, each of these grounds could be at stake in factual situations where discrimination on other grounds is also relevant. Thus, one would expect a few cases where the court has already addressed the problems of multiple discrimination. Contrary to these expectations, ECJ case law does not generally address the issue, even after the non-discrimination package was adopted in 2000. The following are examples of cases in which multiple discrimination against women was not acknowledged as such.

In the field of nationality discrimination, the ECJ has decided some cases concerning migrant women. Thus, the question would arise whether the intersections of gender and nationality discrimination were addressed. Cases such as Allué,15 Spotti,16 Schöning-Kougebetoulou17 and Scholz,18 while mainly decided under free movement of workers, also concerned women. The facts only partly allow the conclusion that these women had followed their husbands to their country of origin.

The discrimination experienced by these women did not seem to have a gender dimension. Although their social situation is surely more typical for women than for men, these were not necessarily cases of intersectional discrimination.

The gender dimension is more evident in cases where women engaged in prostitution have relied on free movement rights, as in Adoui and Cornuaille19 and Jany et al.20 In these cases the European Court of Justice could, at least in theory, have considered whether restriction of free movement of a predominantly female group of workers would be in conflict with the principle of gender equality as a general principle of Community law. The ECJ has stressed in a number of free ECJ C-259 et al/91 [1993] ECR I-4309, ECJ 33/88 [1989] ECR 1591.

ECJ C-272/92 [1993] ECR I-5202.

ECJ C-15/96 [1998] ECR I-47.

ECJ C-419/92 [1994] ECR I-505.

ECJ 115/81 and 116/81 [1982] ECR 1665.

ECJ C-268/99 [2001] ECR I-8615.

Multiple Discrimination in EU Law 7 movement cases, that Member States are bound by general principles of Community law when relying on exceptions such as the public policy derogation in Article 39(3) and 46 EC.21 The Court has also acknowledged long ago that gender equality belongs to the general principles of Community law that has to be protected by the European Court of Justice.22 There was, however, no consideration of this fundamental right in relation to the Member States’ policy of refusing access to women working as prostitutes, although the Court did acknowledge that there was unequal treatment on grounds of nationality.

Several cases have in the past concerned the interaction of age and gender discrimination: Ms Defrenne23 and Ms Marshall24 were compulsorily retired at an earlier pension age than men would have been; Mrs Steinicke25 and Mrs Kutz-Bauer26 were denied a specific favourable form of part time work at an age at which men were still allowed access to this ‘old age part time’ (Altersteilzeit). These cases were decided when discrimination on grounds of age was not prohibited under Community law. Arguably the Court could not have been expected to consider both forms of discrimination.27 In the recent Lindorfer case,28 however, the ECJ did have the opportunity to consider both age and sex discrimination: the transfer of pension rights for Community employees distinguished on grounds of age and also on grounds of sex by reference to actuarial tables. The Court re-opened the proceedings in order to re-assess the question of age discrimination after its Mangold decision, but, guided by AG Sharpstone,29 held that there was no age discrimination.

The decision in the Coleman case is another example of the neglect of gender discrimination intersected with disability discrimination. The claimant had been harassed at her workplace because she took time off work in order to care for her disabled son. The reference from the Employment Tribunal London South only considered discrimination on grounds of her son’s disability. Arguably, gender role expectations were also a factor in the case, though it was not relied upon before the national court.

In sum, the case law of the European Court of Justice does not yet acknowledge instances of intersectional discrimination against women. Only in the Lindorfer case has a cautious attempt to this effect been made. Arguably, the neglect of the second dimension of discrimination mirrored the litigation strategy of the parties before the national courts, who chose to rely on one ground only. This does not necessarily prevent a court from engaging with the problem of intersectionality, however.30 At least in the cases involving women working as prostitutes, one would have expected a reference to this principle, given the prominence of the human right to sex equality.

The reluctance of the EU’s highest court to engage with intersectional gender See ECJ 36/75 Rutili [1975] ECR I-1219, ECJ C-482/01 Orfanopoulos [2004] ECR I-5257.

The human rights character of gender equality rights was first acknowledged in Defrenne III (ECJ 149/77 Defrenne III [1978] ECR 1365, para. 27) and more recently reconfirmed in ECJ 227/04 P Lindorfer [2007] ECR I-6767 (para. 51).

ECJ 149/77 [1978] ECR 1365 (in the absence of secondary law prohibiting unequal treatment on grounds of gender this was not seen as a violation of Community law at the time).

ECJ 152/84 [1986] ECR 723.

ECJ C-77/02 [2003] ECR I-9027.

ECJ C-187/00 [2003] ECR I-2741.

Nielsen (2009: 42), expecting that this would change as soon as the Court decided cases under the new non-discrimination framework.

ECJ C-227/04 P [2007] ECR I-6767.

Opinion of30 November 2006.

The Føtex case before the Danish Supreme Court may serve as a counter-example here, see below text accompanying footnote 39.

8 Multiple Discrimination in EU Law discrimination indicates the need of more reflection on the problem from an EU law perspective.

c) Community legislation, Council and Commission documents Community law does not (yet) use the term multiple discrimination in legally binding provisions. The concept has, however, figured highly in the European Community’s non-discrimination policy as established by the European Commission. The issue was first mentioned in recital 4 of the 2000 Council Decision establishing a Community action programme to combat discrimination, which states that equality of women and men requires action on multiple discrimination, and in recital 5, which states that all forms of discrimination are equally intolerable, the latter providing support for the claim that new practices and policies to combat discrimination should to include multiple discrimination.31 Recently, the European Commission has announced to use ‘new governance mechanisms to address the issue of multiple discrimination’, inter alia ‘through (...) providing funding for smaller networks of NGOs representing intersectional groups’.32 The concept has also found its way into the recitals of Directives 2000/43/EC and 2000/78/EC, both of which mention that Community law has a long tradition in prohibiting sex discrimination and that women are often the victims of multiple discrimination.33 Interestingly, the recitals of the gender equality directives, even those adopted after Directives 2000/43/EC and 2000/78/EC,34 do not mention multiple discrimination. There are, however, some Commission policy documents from the field of gender equality that mention the term (Nielsen 2009:35-7).

Community legislation contains a further indirect reference to the reality of intersections between gender discrimination and other forms of discrimination. The 2000 directives, invoking gender mainstreaming, oblige the Commission to include a reference to their impact on ‘women and men’ in their reports on the implementation of those directive (Article 17 Directive 2000/43/EC and Article 19 Directive 2000/78/EC). The report on the implementation of the Race Directive, however, contains only very little information under the heading ‘Gender mainstreaming and multiple discrimination’, which is explained by the dearth of information received from Member States.35 The equivalent report on the implementation of the Framework Directive36 contains neither a heading ‘Gender mainstreaming and multiple discrimination’ nor any explanation why the report omits to fulfil the relevant obligation under Article 19 Directive 2000/78/EC.

d) Planned legislation Presently, a proposal for a Council directive on implementing the principle of equal treatment between persons irrespective of religion and belief, disability, age or sexual 2000/750/EC: Council Decision of 27 November 2000 OJ L 303, 2.12.2000, pp. 0023-0028.

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Non-Discrimination and equal opportunities: A renewed commitment’ COM(2008) 420 final, p. 9.

Cf. recital 14 of Directive 2000/43/EC and recital 8 of Directive 2000/78/EC, the same formula is used in recital 13 of the draft directive equal treatment on all grounds except sex and race outside the employment context (COM(2008) 643).

Directive 2004/113/EC and Directive 2006/54/EC.

Communication from the Commission to the Council and the European Parliament, ‘The application of Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin’ COM(2006) 643 final, pp. 1 and 7.

COM(2008) 225 final/2 of 18 July 2008.

Multiple Discrimination in EU Law 9 orientation other than in the field of employment and occupation is being debated between the Community institutions. The original Commission proposal37 only repeated the recital mentioning multiple discrimination found in from Directives 2000/43 and 2000/78. On Thursday 2nd April 2009 the European Parliament adopted a number of amendments,38 relating, inter alia, to multiple discrimination. The amendments to the recitals shall not be repeated here. On the text of the directive, the

EP proposes the following (amendments to Commission proposal in bold):

‘Article 1

1. This Directive lays down a framework for combating discrimination, including multiple discrimination, on the grounds of religion or belief, disability, age, or sexual orientation, with a view to putting into effect in the Member States the principle of equal treatment other than in the field of employment and occupation.

2. Multiple discrimination occurs when discrimination is based:

(a) on any combination of the grounds of religion or belief, disability, age, or sexual orientation, or (b) on any one or more of the grounds set out in paragraph 1, and also on the ground of any one or more of (i) sex (in so far as the matter complained of is within the material scope of Directive 2004/113/EC as well as of this Directive), (ii) racial or ethnic origin (in so far as the matter complained of is within the material scope of Directive 2000/43/EC as well as of this Directive), or iii) nationality (in so far as the matter complained of is within the scope of Article 12 of the EC Treaty).

3. In this Directive, multiple discrimination and multiple grounds shall be construed accordingly.’ ‘Article 16

2. The Commission’s report shall take into account, as appropriate, the viewpoints of the social partners and relevant non-governmental organizations, as well as the EU Fundamental Rights Agency. The report shall include a review of the current practices in Member States in relation to Article 2(7), with regard to the use of age or disability as a factor in the calculation of premiums and benefits. In accordance with the principle of gender mainstreaming, this report shall, inter alias, provide an assessment of the impact of the measures taken on women and men. The report shall also contain information about multiple discrimination, covering not only discrimination on grounds of religion or belief, sexual orientation, age and disability, but also discrimination on grounds of sex, race and ethnic origin. In the light of the information received, this report shall include, if necessary, proposals to revise and update this Directive.’ While the inclusion in Community law of an obligation on Member States to ensure that cases of multiple discrimination can be addressed may be a positive development, some questions arise. First, it seems questionable whether gender discrimination that COM(2008) 426.

P_6 TA (2009)0211.

10 Multiple Discrimination in EU Law intersects with racial discrimination should be omitted from the concept. Second, the proposal only addresses discrimination outside employment. The negative repercussions of such a restriction should be considered carefully. If the nonemployment directives deal in terms with multiple discrimination, a systematic interpretation of all the non-discrimination directives would easily lead to the conclusion that, without this positive legislation, multiple discrimination is not covered. This would possibly also have negative repercussions in those Member States were – by contrast with the UK – courts have already acknowledged cases of multiple discrimination in employment law and/or of the intersections between gender discrimination and racial/ethnic discrimination (see further below 3.2. c)).

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