«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
8. Reinforcement of legal approach at EU level necessary?
In Spain, multiple discrimination is, in my opinion, a quite unknown phenomenon from a theoretical point of view (in reality there are problems, of course). Although it is possible to find some provisions in Law 3/2007 connected to multiple discrimination, they are mainly obligations for the authorities, who have not done much until now. It is necessary to make multiple discrimination more visible and to improve the way to deal with related claims, but whether this target can be reached by a reinforcement of the legal approach, by a community-law definition of multiple discrimination or by other measures, such as further research, is not very clear to me.
9. Community-law definition of multiple discrimination necessary?See under 8.
10. Available literature or research?
– José Fernando Lousada Arochena El principio de Transversalidad de la Dimensión de Género Ed. Ministerio de Trabajo y Asuntos Sociales, Madrid 2007.
– Fernando Rey Martínez ‘La discriminación múltiple, una realidad antigua, un concepto nuevo’ in: Revista Española de Derecho Constitucional un. 84 2008.
– Pilar Rivas Vallejo ‘Extranjeras y mujeres, la irregularidad en la precariedad. Sin papeles ni derechos’, Jurisprudencia Aranzadi Social 20/2005.
11. Further research See under 8.
1. Concept of multiple discrimination in legislation Sweden has no express rule on the prohibition of multiple discrimination. The Swedish (2008:567) Discrimination Act contains the bans on discrimination in Chapter 2. These are organised by area (employment, education etc.), but there is no express reference to the different grounds of discrimination or to multiple 120 Multiple Discrimination in EU Law discrimination in the respective ban itself. Its design can be said to represent a ‘silent integrated approach’. However, the ban covers differential treatment ‘linked to’ any ground covered by the Act, as listed in Chapter 1 Section 1. Therefore, there is no need for the alleged discrimination to be ‘caused’ by a specific ground. On the contrary, differential treatment can perfectly well be ‘linked to’ various different grounds simultaneously and thus amount to multiple discrimination. In fact, the design of the bans of discrimination in combination with the rule on the reversed burden of proof may well show to facilitate claims of multiple discrimination.
However, since the Act only entered into force on 1 January 2009, there is no case law to prove this yet.
In the traveaux préparatoires there was special mention of the ‘single act’ approach being more adequate for cases of multiple discrimination.146
2. Case law I have found only two court cases, both from the Labour Court, explicitly referring to more than one ground of discrimination, since the year 2000.147 There are no such cases from the ordinary court system concerning discrimination in other areas of society than employment.
Labour Court case 2003 No. 63 concerned a Muslim woman wearing a headscarf who was denied employment only after a personal meeting. Earlier contact by telephone – without her ethnicity or religion being revealed148 – had led the woman to believe there was room for employment. The case was brought to court by the Ethnic Discrimination Ombudsman (DO), but the discrimination claim was argued/based both on the ground of ethnicity149 and on the ground of sex. The Court found no ethnic or sex discrimination in employment, since the position had already been filled when the meeting took place. It had been argued that the company uniform policy amounted to indirect sex discrimination to the detriment of Muslim women. However, since no employment situation was at issue, it was not proven that such a policy had informed any decision by the employer. The case was thus lost.
A special issue in this case was the question whether the DO had the competence to bring a case to court, not only on the basis of the (then) 1999 Ethnic Discrimination Act but also on the basis of the (then) 1991 Equal Opportunities Act. The Labour Court answered this in the affirmative, referring to the broadly formulated competences of the ombudsman (‘When bringing an action on behalf of an individual on the basis of the present Act, the Ombudsman may also in the same proceedings bring another action as representative of that person’) and to express statements in the traveaux préparatoires that such a situation (thus plausible) would require coordination with (in this case) the Equal Opportunities Ombudsman.150 Nor did the Labour Court find it unacceptable that sex discrimination was additionally claimed only at a later stage in the process and not argued from the beginning since both discrimination claims referred to the very same factual circumstances.
Government Bill 2007/08: 95, p. 85.
Discrimination bans on other grounds than sex/gender were introduced only in 1999 (concerning employment only), so there could be no earlier case law.
It is important to stress here that ethnicity and religion and other beliefs all are grounds covered by the former 1999 Ethnicity Discrimination Act, making it less important to distinguish between them.
Ethnicity and religion and other beliefs all are grounds covered by the former 1999 Ethnicity Discrimination Act, making it less important to distinguish between them. Religion was thus not spelled out as a specific ground.
Government Bill 1993/94:101 p. 100 and Government Bill 1993/94:147 p. 57.
Multiple Discrimination in EU Law 121 Labour Court case 2006 No. 96 concerned a Bosnian woman who was denied employment at a Swedish prison (häkte). A Swedish man was hired instead. The case was brought to court by the alleged victim’s trade union and both ethnic and sex discrimination was claimed. However, the Labour Court found no discrimination whatsoever, since a prima facie case of discrimination could not be proven: the woman was not shown to be better qualified than the man who got the position and they were thus not in a comparable situation. The case was lost.
However, in addition to the 2008 Discrimination Act (and the earlier different discrimination acts that it replaced), there is also a prohibition of detrimental treatment in the (1995:584) Parental Leave Act. This ban was introduced in 2006. It can be argued that this ban constitutes a ban on discrimination of the parents of young children, although the law as such uses the concept detrimental treatment, not discrimination. Since the introduction of this ban, cases are known to be argued both in terms of sex discrimination according to the 1991 Equal Opportunities Act (as of 1 January 2009 the 2008 Discrimination Act) and detrimental treatment of parents according to the 1995 Act, since discrimination on the grounds of maternity is covered by both Acts (e.g. Labour Court cases 2008 No. 14 and 2009 No. 15). In the 2008 case, detrimental treatment according to the 1995 Parental Leave Act was found.
However, the Labour Court did not try the case under the Equal Opportunities Act, since this was only an alternative ground according to the claim. In the 2009 case, no discrimination was found, neither under the Equal Opportunities Act nor under the 1995 Act.
As indicated above, to my knowledge, no cases have been brought on multiple discrimination in the ordinary court system based on the bans of discrimination outside the area of employment.
As far as the specialised bodies are concerned: Sweden used to have a number of different Ombudsmen (the Ethnicity Discrimination Ombudsman, the Disability Ombudsman, the Ombudsman against Discrimination due to Sexual Orientation and the Equal Opportunities Ombudsman) who have now merged into one Discrimination Ombudsman (DO), as of 1 January 2009 when the 2008 Discrimination Act entered into force. Practices and decisions from before 1 January 2009 are no longer easy to find, since their respective homepages are (partly) closing down. A study of the Equal Opportunities Ombudsman’s yearly reports, however, reveals no experiences with multiple discrimination claims. An analysis of the claims processed by the Ombudsman against Discrimination due to Sexual Orientation shows, however, that some of these include allegations concerning multiple discrimination. This is, for instance, true for Decision 2007-08-31, dno. 511-2007 (sexual orientation and ethnicity), and Decision 2005-03-17, dno. 33-2005 (sexual orientation and disability).None of these allegations was taken any further, however, since there was no proof of discrimination whatsoever. This is likely to be true for the other Ombudsmen as well, but no such cases have shown up in argued decisions/opinions by the Ombudsmen or in the courts.
3. Any cases where gender-related discrimination is overlooked?
Such cases have not been found. However, there is another case worth mentioning: a criminal case of alleged illegal discrimination against Roma women according to Chapter 16 Section 9 of the Criminal Code (Supreme Court case NJA 1999 p. 556, judgment 13 September 1999). For crime-prevention purposes, a store introduced a prohibition denying persons dressed in wide, long and heavy skirts entry to the store.
A Roma woman was denied entry because she was dressed in traditional clothes, 122 Multiple Discrimination in EU Law something which the Court held to be illegal discrimination. This criminal offence applies to discrimination on ethnic, religious or homosexual grounds only and – for legal reasons – a claim based on both Roman ethnicity and sex could therefore not be made. Currently, such discriminatory behaviour is also banned by the 2008 Discrimination Act both on the grounds of ethnicity and sex (among other grounds).
4. Proof and procedural problems As was already described under 1, the bans on discrimination in Chapter 2 of the 2008 Discrimination Act cover differential treatment ‘related to’ any ground covered. This means that the alleged discrimination does not need to be ‘caused’ by a specific ground. On the contrary, differential treatment can perfectly well be ‘related to’ various different grounds simultaneously and thus amount to multiple discrimination.
In fact, the design of the bans on discrimination in combination with the rule on the reversed burden of proof may well show to facilitate claims of multiple discrimination in the future.
Until now, however, since there are no cases where multiple discrimination was found, experience with procedural details concerning such claims is quite limited.
Here, however, Labour Court case 2003 No. 63 concerning the Muslim woman wearing a headscarf who was denied employment, as described above under 2, should be called to mind again. In that particular case, a special issue concerned the question of whether the DO had the competence to bring a case to court, not only on the basis of the (then) 1999 Ethic Discrimination Act but also on the basis of the (then) 1991 Equal Opportunities Act. The Labour Court thus answered this in the affirmative (see above, under 2)
5. Description of a specific case Labour Court case 2003 No. 63 was already described in some detail above. It concerned a woman who for religious reasons wore a headscarf and who applied for employment at a company that demonstrates food products in food stores. In a telephone call between the woman and the company it was not said or asked what religion the woman had or if she wore a headscarf. The parties agreed to meet the following day. On this occasion, the company’s representative explained that the woman cannot wear a headscarf when demonstrating food products, because she is supposed to be the ‘face of the company in the contact with its customers’. The representative furthermore said that it will ‘take a hundred years before people will accept’ that kind of clothing in public. She also assured the woman that she herself had nothing against people from other parts of the world or against any other religion.
The Labour Court concluded in its decision that the company’s actions were not discriminatory because the employment procedure was terminated on the day before the meeting between the representative and the woman, when the company employed another person who had better skills (discrimination during an applications procedure was not as such prohibited at this time and, moreover, the Court explicitly found that no application procedure was ongoing at that time).
No discrimination was thus found, and there is little to be concluded from the Labour Court’s judgment as far as allegations of multiple discrimination are concerned. However, had the employment not been filled when the meeting took place, this would have been a case where, in my opinion the claim on sex discrimination should be added to the one on ethnic/religious discrimination. Muslim women are especially exposed to detrimental treatment, not only from an
6. Effects of legislation and case law in practice No reports/surveys have been produced on multiple discrimination in practice, to my knowledge.
7. Role of equality bodies As indicated under 2 above, until the beginning of this year Sweden had four different ombudsmen monitoring and tackling discrimination on different grounds; the Ethnicity Discrimination Ombudsman, the Disability Ombudsman, the Ombudsman against Discrimination due to Sexual Orientation and the Equal Opportunities Ombudsman. They have now, as of 1 January 2009 and the introduction of the 2008 Discrimination Act, been merged into one Discrimination Ombudsman (DO). Despite the fact they have probably been consulted on cases comprising potential multiple discrimination, very few, if any, such cases (see under 2) have so far reached the courts. The one exception, Labour Court case 2003 No. 63, clearly shows that there has been no legal hindrance for any of the ombudsmen to present a discrimination claim based on multiple grounds. Still, this has not happened.
However, the new ombudsman (DO) is known to be organised in a truly horizontal manner, which may prove to foster claims of multiple discrimination. The new Authority is thus organised along the lines of employment, education, other areas of society, positive action, etc., and not according to the respective grounds of discrimination. Only the future can tell what the effect of this will be.
8. Reinforcement of legal approach at EU level necessary?