«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
2.4. Preliminary assessment from a gender perspective The forgoing demonstrates that multiple discrimination against women is not easy to address in any legal system. Despite these difficulties, addressing such discrimination seems necessary to do justice to all women suffering discrimination. On the one hand, without acknowledging the phenomenon women may lack the necessary protection when they are discriminated against on intersecting grounds. On the other hand, acknowledging gendered dimensions of discrimination on grounds other than gender will be a precondition for women to make full use of non-discrimination law on nongender grounds.
The evaluation of the reports of national experts gives further indications as to whether multiple discrimination occurs, and whether and if so, how national courts and equality bodies respond to it.
3. Main findings of national reports
3.1. Preliminary remarks The national replies to the questionnaire on multiple discrimination differ widely in breadth of coverage and degree of analysis. In general, information is rather scarce.
This is mainly due to the fact that multiple discrimination is a fairly new theme, which is not yet sufficiently reflected in legal research and practice.
For example, the Cypriot expert mentions that any discussion on multiple discrimination is as yet academic. The German expert reports that ‘apparently, lawyers do not see an added value in using the concept of multiple discrimination’, referring to employment law cases where dismissal is based on a women wearing a headscarf.
The reports also, however, suggest a number of assumptions that may have influenced the breadth of reporting. Some experts seem to be concerned that acknowledging multiple discrimination may result in diminished attention being devoted to gender discrimination. This is based on the experience that the ‘new grounds’ of prohibited discrimination are more accepted or more successfully used in litigation and legislation.
The Belgian expert expresses the view that a single equality act, which would facilitate tackling multiple discrimination in his view, would at the same time endanger the ‘transversal gender dimension’. This is why he recommends retaining a specific act addressing gender equality. Similarly, the Finnish expert considers that merging former gender equality bodies with other equality bodies Multiple Discrimination in EU Law 11 could reduce the resources available to them, in particular the resources dedicated to gender. The Hungarian expert mentions a tendency of the national equality bodies (ETA) to disregard discrimination based on a ‘classical ground’ (i.e.
gender), if discrimination occurred by reference to gender and another ground.
The Slovakian expert notes that courts are ‘more inclined to decide on racial discrimination than on gender discrimination’, which is why applicants rely on race alone in intersectional discrimination cases. The Luxembourg expert fears that acknowledging multiple discrimination would reinforce hierarchies at the expense of gender equality.
Other experts, however, consider that acknowledging multiple discrimination is a precondition to adequately address all forms of gender discrimination.
The Bulgarian expert regrets that multiple discrimination is not yet an element in national gender equality legislation. The Greek expert hopes that acknowledging the concept allows sanctioning more severe forms of gender discrimination adequately. The Polish expert underlines that the concept of multiple discrimination would create greater awareness of problems such as violence against ethnic minority women. The Portuguese stresses that without acknowledging multiple discrimination some forms of gender discrimination may be ignored. The Romanian expert considers the concept as a precondition to acknowledge more complex ways to discriminate.
Some experts also point to the fact that the information systems regarding case loads in the field of discrimination do not allow to access information other than by analysing each and every decision of a specific body or court, which the time allocated to this specific report would not allow them to do.
The Polish expert claims explicitly that she couldn’t find sufficient information within the allocated time. The French, Irish, Dutch and Romanian experts also relate to the limited information given by existing statistics.
Due to the partial scarcity of factual information contained in national reports, the summary of these can only provide a few highlights. In particular, only a faction of experts responded to the request to describe one case in which multiple discrimination was addressed or should have been addressed. This is due to the novelty of the concept and the notoriously slow reaction of the legal system to any novel concept.
Even those experts who did report on cases could partly only find press reports to rely on. All this reaffirms the view that it would be worthwhile to invest considerable resources into socio-legal research on European (as opposed to US American and Canadian) experiences with multiple discrimination. Results of such research would then provide a more reliable basis for policy recommendations than this and foregoing reports to the European Commission can offer (see also above 2.2. towards the end).
3.2. How (if at all) are cases addressed by courts and equality bodies where a woman is discriminated on grounds of her sex or gender and at least one additional ground?
In order to give a practical element to the report, experts were asked to identify at least one case where a court of the equality body in their Member State should have addressed multiple discrimination, and also to comment on whether multiple 12 Multiple Discrimination in EU Law discrimination adds any value from a gender perspective. Due to the novelty of any approach to gender discrimination which takes into account the diverse other factors characterising women, only 23 out of 30 experts were able to provide any examples at all and only 10 experts were able to describe at least one case in more detail. This results in 43 ‘case examples’, of which 29 were decided by courts and 8 by equality bodies. The remaining 6 are examples from political debates or cases that were not brought to court. In addition, 2 experts state that there have been a number of cases on the same theme without identifying specific examples of those cases.
a) Groups of case examples – combinations of gender with other grounds The case examples cluster around five combinations.
The largest number of cases is reported under the heading of gender and racial or ethnic origin. These are 21 case examples altogether, of which 7 relate to Roma women. The next large number of cases were 9 examples for combinations gender and family status/reconciliation of paid and family work (including part time work), followed by 8 cases of gender and age. The experts also reported 3 cases in relation to gender and religion and 3 cases in relation to gender and the position in employment.
For future research, it may be worthwhile considering whether certain combinations have specific regional importance. For example, the cases relating to Roma women were mostly from MOE-states (Czech Republic, Hungary, Lithuania, Poland, Slovenia and Slovakia), with the exception of Sweden. There was also a certain dominance of newly acceded Member States in cases of combined gender and age discrimination.
b) Summary of case examples Cases in which both gender and ethnic or racial origin were relevant only partly focus on the work place. The employment-related cases include cases of sexual and racist harassment (Austria, the Netherlands), of refusal to employ or promote or even the dismissal of a woman perceived as minority ethnic (France, Germany, Slovakia, Sweden, UK), or detrimental working conditions for groups of immigrant women employed as cleaners or domestic workers (Greece, Spain).
Moving beyond employment, several experts report cases in which women perceived as belonging to a minority were denied adequate protection against domestic or institutional violence (Poland, Hungary, and Spain). Cases of involuntary sterilisation of Roma women also are closely related to the problem of violence against women (Czech Republic, Hungary). Two cases concerned women in their role as mothers: in Greece, a state programme for funded access to child care institutions was found to be discriminatory because it excluded third country national women, while in Finland, women from the Sami minority were discriminated against as their children were not offered a place in child care institutions with their mother tongue, which in turn forced the mothers to remain at home. In two other cases, women were stereotyped in particular ways due to their ethnicity. Two Asian women were denied a room in an Oslo hotel because they were assumed to be prostitutes, and a Roma woman in traditional dress with a wide skirt was denied access to a store under crime prevention measures (Norway). The remaining cases turned on the question whether sufficient women-only sessions in municipal swimming pools were provided to accommodate the needs of ethnic minority women who would not use the facilities while mixed (Finland), and whether the award of joint custody to a Roma woman and her ex-partner for a common child was discriminatory (Slovenia).
Multiple Discrimination in EU Law 13 Age and gender discrimination was most frequently found in relation to different statutory pension ages for women and men, which led to early compulsory retirement of women (Ireland, Italy and Poland) or, in one case, to special protection against dismissal provided to women close to the pension age (Hungary). A case of triple discrimination concerned a disabled woman who could only claim support for a special mobility wheelchair up to age 60, whereas the age limit for men was 65 (Bulgaria). Another case concerned the combined effects of part-time occupation (indirect gender discrimination) and age limits on access to an employer’s pension scheme (Ireland). Age limits for certain occupations were also compounded by gender (Norway, Latvia) and two examples concerned collective redundancies that affected older women disproportionately. Another two cases concerned the consequences of commonly held stereotypes about young attractive women: in one case, a group of such women were harassed by their middle aged female supervisor (Poland), while in another case a middle aged man was denied employment in a rest house because he did not belong into that category (Latvia).
In the group of cases where gender and family status or family role were combined it was not always apparent that there was any other ground of discrimination in addition to gender. Discrimination against women working part time was repeatedly reported under this head (Spain, Italy), and could equally have been treated as indirect gender discrimination. Similarly, a Bulgarian case in which state legislation excluded the payment of both a student grant and benefits for single parents might be seen as involving gender discrimination alone, given that women are generally the recipients of the latter. Consequently, the national court considered a violation of CEDAW, but no other discrimination. The same argument could be made in relation to the denial of access to pension facilities to those not considered ‘breadwinners’ (Spain) and in relation to state legislation which disproportionally affects unmarried cohabiting mothers claiming family benefit in their own name (Belgium). In both cases disadvantage resulted from being with a partner who earned more, which is a situation more typical for women than for men. Cases involving the selection for dismissal of single mothers (Hungary) and refusal to employ the mother of a young child (Sweden), however, combine family status and gender.
Questions of gender and religious discrimination related to the hijab, and whether women-only sessions in public swimming pools which are intended to facilitate access by minority ethnic and other women whose religious views prohibit mixed-sex bathing were justified, or constituted unjustifiable discrimination against men. Interestingly, national courts categorised cases where women were dismissed or denied employment for wearing a headscarf differently, sometimes as discrimination at the intersection of gender and ethnicity (Sweden), sometimes as discrimination at the intersection of religion and gender (Denmark, France and Germany).
In three cases women were disadvantaged in employment as a result of their specific position in the employment market. A Belgian piece of legislation that provided for shorter notice periods for dismissing ‘blue collar workers’ in comparison with other employees in the public sector happened to disproportionally affect women. A Latvian woman was dismissed in order to give her position to a man who was working on very low wages. Similarly, a Hungarian woman was denied part time employment during parental leave partly due to her being employed in an executive role. Possibly, these cases could be dealt with as indirect or even direct gender discrimination, without using multiple discrimination as a concept.
14 Multiple Discrimination in EU Law
c) Cases where multiple discrimination against women was acknowledged It is worthy of note that experts identified a few cases in which courts or equality bodies acknowledged the phenomenon of multiple discrimination. Only a few of these shall be highlighted here.
In the Danish Føtex case39 the claimant, who was dismissed from her job at a department store because she started wearing a hijab, challenged the dismissal exclusively on the basis of religious discrimination. The Supreme Court, however, considered ethnic and gender discrimination in addition to religious discrimination.
Although the case was not successful in the end, because the dress code on which the dismissal was based was considered as reasonable, this suggests that the recognition of multiple discrimination claims is a practical possibility. Similarly, a case cited by the French expert is encouraging. The Paris Court of Appeal40 considered a challenge made by a black woman who claimed ethnic and sex discrimination in connection with her career progression and the denial of access to her of vocational training. As seems to be typical for a French court, the Court did not question the group of comparators named by the applicant, which included white men and a white woman.