«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»
It focused instead on the objective justification of the difference in treatment. In a similar vein, the case cited by the Dutch expert seems to indicate that the Dutch Equal Treatment Commission would not hesitate to consider intersectional sexual and ethnic harassment.41 In the actual case, the Commission uses slashes to indicate the unity of the claim. Of course there is question – also posed by the Dutch expert – as to the practical consequences this in a successful case. In the present case, the harassment was held not to be proven. Similarly, Norwegian examples in which the Equality Tribunal acknowledged the stereotyping of Asian women as potential prostitutes as discrimination on both ethnicity and gender is encouraging.42 However, as in the Dutch case, the Tribunal has no competence to award damages, the amount of which might have been the only tangible advantage of acknowledging such a case of intersectional discrimination.
d) Cases where multiple discrimination against women was not acknowledged The cases reported above are encouraging examples, counterbalancing the negative experiences applicants had in other instances. These cases, which are more frequent, fall into two categories.
First, some cases fail because courts refuse to entertain intersectional claims.
Among these cases is the much-discussed UK case Bahl v Law Society.43 Here, the national court did not recognise the possibility that discrimination could be based on two grounds at the same time, such that the grounds could not be disentangled. In stark difference to the French court cited above, the court required the applicant to prove both forms of discrimination independently. Given the fact that a person in an executive position, such as the claimant, has a limited choice of comparators, this radically reduced the possibility of a successful claim. Possibly, a more positive result could have been achieved had the court allowed a fictional comparator of the opposite sex and a different ethnicity. However, this is not possible in cases of indirect U 2005, 1265H.
Judgment of the Paris Court of Appeal, 29 January 2002, no° 2001/32582.
ETC Opinion 2007-40.
The Equality Tribunal, Case no. 1/2008, available at http://www.diskrimineringsnemnda.no/sites/d/ diskrimineringsnemnda.no/files/62958820.doc, accessed 15 April 2009. On case law of the Norwegian Equality Tribunal regarding the hijab see Skjeie (2009:303-5).
Bahl v Law Society  I.R.L.R. 640 and  I.R.L.R. 799.
Multiple Discrimination in EU Law 15 discrimination, as the case cited by the Irish expert demonstrates.44 In this case, the applicant might have been successful had she been allowed either to rely on mixed statistics, outlining the combined relationship of age and gender to exclusion from the pension fund, or to rely on the non-statistical approach to indirect discrimination which is provided for by the EU Directives on non-discrimination.
Secondly, cases of multiple discrimination sometimes succeeded only under one heading instead of two. Cases cited by the German and the Finnish expert are examples of these. The German court cases involving the denial of employment on grounds of wearing a hijab45 have not dealt with as involving religious freedom alone, rather than as also concerning ethnic and gender discrimination. Clearly, considering these cases as discrimination cases instead would have the added advantage of providing the applicants with a cumulative claim to moral damages (§ 15 AGG) under German law. In a recent claim based on ethnic and gender discrimination46 the Court only acknowledged direct gender discrimination, and did not consider the indirect discrimination claim based on combined statistics, rejecting the possibility of statistical proof. Acknowledging these claims would have led to cumulative damages.
In the Finnish example, denying minority language education for children was only considered as discrimination on grounds of ethnicity from the child’s perspective, not under the as ethnic and gender discrimination from the mother’s perspective. Again, acknowledging the intersectional claim may have led to improved remedies for the claimant.
Thirdly, cases of multiple discrimination may not be dealt with as discrimination cases at all. In this way, applicants may loose out on remedies unique to discrimination cases, and they may also loose out on support by Equality bodies or specialised organisations. The example brought forward by the Czech expert47 is one of these. The Czech courts have, after much hesitation, acknowledged that Roma women can be entitled to damages under tort law after sterilisation without consent.
The results of these cases have not always been positive, e.g. due to time bars in tort law. Disregarding the difficult legislative position in the Czech Republic for a moment48 as well as the reluctance of Czech courts to tackle racial discrimination, one could think about advantages of damages under non-discrimination law. Of course, this would presuppose that discrimination in provision of health services was prohibited not only on grounds of racial and ethnic origin, but also on grounds of gender. If this is the case, a Community law based claim to damages might exist. This would include the advantage that such damages should be deterrent under Community standards.
e) Conclusion Even the limited amount of cases reported under the head of multiple discrimination demonstrates that this is a field in which legal recognition of multiple disadvantage could be achieved. Such achievements would, depending on the national legal culture, possibly lead to acknowledging the existence of discrimination at all, or to awarding more advantageous claims. However, in many cases the existence of multiple discrimination was not acknowledged. Also, some of the cases where it was DEC- P2009 – 001 and available at www.equalitytribunal.ie, accessed 30 March 2009.
Most prominently Constitutional Court 24 September 2003 (2 BvR 1436/02) BVerfGE 108, 282.
Wiesbaden Labour Court 5 Ca 46/08 of 18 December 2008, accessible under ‘juris’ (for account holders).
Case No. 1 Co 43/2006 (Olomouc 12 January 2007).
The Czech Anti-Discrimination Act is still not effective.
3.3. Multiple discrimination in national legislation
a) Is the phenomenon mentioned or even defined in national legislation?49 The reports show that national legislation differs widely as to whether multiple discrimination (or equivalents thereof) is explicitly defined or even mentioned. The Austrian, German, Italian, Polish and Romanian legislation mention the possibility that discrimination based on more than one of the prohibited grounds occurs.
Austrian legislation envisages that multiple discrimination shall be taken into account when calculating compensation;50 as do Italian and Romanian regulatory instruments (statutory instruments).51 German legislation clarifies that, in cases of multiple discrimination, the justification requirements for each single ground must be fulfilled, and thus presupposes that discrimination on several grounds may occur.52 Similarly, Polish legislation expressly provides that direct and indirect discrimination may both be based on more than one ground.53 Bulgarian and Romanian legislation define multiple discrimination, albeit in a very basic way.
Article 11 of the Bulgarian Protection Against Discrimination Act (PADA) defines multiple discrimination as ‘discrimination on the grounds of more than one of the characteristics under Article 4 (1)’. Article 4 of the revised Romanian Act on Equal Opportunities defines as multiple discrimination ‘any discriminating action based on two or more discrimination criteria’.
Under Spanish54 and Bulgarian55 legislation, public authorities are under a positive duty to address the problem of multiple discrimination, for example in devising policies and conducting surveys.
b) Is a definition necessary to achieve adequate protection under national law?
The absence of explicit legislative acknowledgement does not lead all national experts to believe that multiple discrimination is not covered by their national legislation. The Cypriot, Danish, French, Icelandic, Irish, Maltese, Dutch, Norwegian, Portuguese, Slovakian, Spanish and Swedish experts state explicitly that the national legislation in their country allows claimants to bring claims of multiple discrimination, or even that the national legislation ‘silently implies’ the existence of such forms of discrimination.
These findings contradict those summarised on page 20 of the study Tackling Multiple Discrimination (‘Thus, Austrian, German and Romanian law contain the only specific provisions in the EU Member States’ legislation on how to handle multiple discrimination’).
§ 9 (4) Federal Disability Equality Act, § 7j Act on the Employment of People with Disabilities, §12 section 13 Equal Treatment Act (private sector) and § 19a Federal Equal Treatment Act (Federal Public Sector).
Italy: Article 1 of decree no. 215/2003, Romania: Governmental Ordinance 77 of 2003.
§ 4 General Equal Treatment Act.
Article 18(3a) (3) Labour Code for direct discrimination and Article 18(3a) (4) Labour Code for indirect discrimination.
Article 14.6 Act 3/2007.
Article 11 of the Act on Protection Against Discrimination.
Multiple Discrimination in EU Law 17 The French report, based upon analysis of an impressing number of cases, concludes that ‘for the judges the alleged ground of discrimination is not so important if a difference is found between a worker and the others’. This approach seems to result from doctrine in the field of equal pay, where courts are reluctant to consider personal characteristics of workers. Thus, in practice, it is sufficient to bring any comparator who is paid more for work of equal value, upon which it will be on the employer to proof that the difference is objectively justified. Accordingly, French courts have no conceptual problem in treating multiple discrimination as a specific type of discrimination rather than as an addition of different forms of discrimination.
The Belgian, Finnish, Greek and Hungarian experts assume implicitly that multiple discrimination could be tackled under their national legislative system, in criticising courts for neglecting it in some cases.
3.4. Are there barriers in law that prevent adequate protection against multiple discrimination?
a) Lack of awareness National experts see a number of specific barriers against acknowledging cases of multiple discrimination in courts and other legal institutions. Most of them stress that the most prominent barrier is generally recent acknowledgement of the problem, which has not filtered through to legal practice yet. As has been mentioned already,56 the lack of awareness for multiple discrimination is also mirrored in a scarcity of statistical information on the subject. This problem is likely to prove a barrier to practical applications of discrimination law in relation to the problem.
However, some experts also identified barriers in legislation or concepts developed in case law.
b) Comparator approach The barrier that is most difficult to overcome is a ‘comparator approach’ to discrimination. In the UK, the Bahl case57 was obviously another proof of the weakness of this concept. The Court of Appeal, dealing with discrimination against an Asian woman, required her to bring separate evidence of discrimination on grounds of gender and ethnicity, i.e. she would have to name a man as comparator in the one field and a non-Asian in the other field. Several reports stress that the comparator approach was only imported into their system by Community legislation, which was modelled upon the UK system.
For example, the Latvian report stresses that it was the ‘copy-pasting’ of directive 2000/43 and 2000/78 which established the need to find a comparator.
The Finnish report stresses that this problem is particularly virulent in such fields of law that were changed in response to recent Community legislation.
c) Compartmentalisation Other difficulties seem to emerge from different legal frameworks for different grounds.
Above 3.1 towards the end.
Bahl v Law Society  I.R.L.R. 640 and  I.R.L.R. 799.
The Estonian expert stresses the different scope of application of different pieces of legislation for different grounds, and considers whether protection against multiple discrimination could be derived from the horizontal effect of the Estonian constitution, as this has a wider scope of application than equality legislation for some grounds. The Italian expert makes the same point in relation to Community law. The Belgian expert mentions the different range of admissible justifications for different treatment, in particularly comparing exceptions admissible for ‘Community law grounds’ and other grounds. The Cypriot expert foresees problems arising from different standards of proof for different grounds.
The Maltese expert relates to the compartmentalisation of legislation at large, and stresses in particular the existence of different equality bodies.
Other experts mention practical problems, such as the absence of statistics, difficulties of proof or divergent competences of equality bodies. All these problems occur in relation to compartmentalisation.
For example, the Cypriot expert mentions that pursuing multiple discrimination claims is inhibited by different standards of proof in relation to different grounds.
The Estonian expert explains that, while the problem has not yet surfaced in practice, different formulations of legislation in relation to gender equality and other grounds would imply different standards of proof as well and render pursuing multiple discrimination claims unpractical. Also, the Irish expert mentions that the burden of proof tends to be more difficult to discharge with in multiple discrimination cases.
3.5. Practical consequences of acknowledging multiple discrimination (‘added value’) Not all national experts commented on the issue whether acknowledging multiple discrimination would have any consequences in practice.
In those reports which did mention any added value of the concept, the consequence most frequently mentioned refers to sums of compensation for pain and suffering.