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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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This approach is taken by the Austrian, the Greek, the German, the Polish expert. The Italian expert’s proposals for Community legislation seem to imply a similar position. The Irish expert recommends that, in cases of multiple discrimination, compensation should be higher than in single ground cases, regretting that this is not possible under Irish law due to strict ceilings on redress.

The Czech expert takes an interesting position on this, proposing that multiple discrimination with a gender aspect should be tackled more strictly than other combinations. The Greek expert also stressed criminal and civil sanctions, which should be more severe in her view in cases of multiple discrimination.

Reducing problems of proving discrimination is cited as another practical consequence of acknowledging multiple discrimination.

Multiple Discrimination in EU Law 19 The UK expert considers that acknowledging multiple discrimination would facilitate proof of discrimination in cases where proof is difficult under a singleground approach. The Portuguese expert, on the other hand, mentions that acknowledging multiple discrimination may also compound difficulties of proof and proposes to complement any change in Community law with a specific rule concerning the reversal of the burden of proof.

The Irish, the Maltese and the UK expert stress as an added value of acknowledging multiple discrimination the opportunity to perceive of people in a multi-dimensional way rather than reducing them to one-dimensional entities.

The German expert stresses that the main added value of concepts such as multiple and intersectional discrimination would not be experienced in individual cases, but rather in acknowledging differences between women in general. She sees this as useful in developing policy strategies such as gender mainstreaming and diversity management, and for developing pro-active approaches in general.

Similarly, the Cypriot expert stresses above all the necessity to factor multiple discrimination into gender mainstreaming and assessment tools.58 The Hungarian expert, on the contrary, does not see any added value of multiple discrimination for gender cases, and thinks that the concept is only of use in relation to the new equalities.

Beyond the positions of individual experts, we can summarise that acknowledging multiple discrimination has added value mainly in two instances. The order of report here does not indicate an order of relevance.

First, there are cases where the discrimination is such that it is only experienced by persons who are ‘at the intersection’ of two grounds. For example, only women (not men) with disabilities or from specific ethnic groups are subjected to involuntary abortions. Or, to give another example, gender stereotypes about attractiveness and age intersect, which results in specific detriments for older women on the labour market. Some legal orders have difficulties acknowledging this kind of intersectional discrimination at all because the concept of multiple discrimination is alien to them (Ireland, UK). In many legal orders it is difficult to establish a case of intersectional discrimination, which is why a number of experts raise the problem of proof.

Second discrimination on more than one ground has a stronger effect of exclusion than discrimination on only one ground. For example, a woman who is bullied away from her workplace on grounds of race and ethnicity will also suffer intersectional discrimination in finding a new occupation. Accordingly, as many experts also stressed, multiple discrimination can be considered as causing more harm and should attract higher damages or more severe other consequences.

It is not, in the view of this report, helpful to identify specific ‘groups’, which are particularly vulnerable to multiple discrimination. Such conclusion cannot be drawn from the fact that the national experts reported three main groups of cases in which multiple discrimination occurred. These clusters may well be a consequence that multiple discrimination against women in other instances is not (yet) acknowledged.

In particular, it is not advisable to only protect against intersectional discrimination on two grounds at a time, or only against a limited field of intersectional discrimination.

These views coincide with Fredman (2009).

–  –  –

a) Community legislation in general The vast majority of experts favour Community legislation, with the exception of only 7 experts.

Some experts believe that only a legislative obligation by the Community will incentivise their home member states to tackle the problem of multiple discrimination explicitly. This approach seems to mirror the disappointment of individual experts that their country is so reluctant to implement EU discrimination law at large.

For example, the Czech expert explains ‘The EC level is very important for Czech legislation. As can be seen from the terrible battle for the Antidiscrimination Act, the only force that can convince the Czech political representation (…) is that the Czech Republic has undertaken obligations through its membership in the EU and that it is necessary to observe these obligations if we do not wish to be fined under ECJ rulings.’ Other experts of this group include those from Bulgaria, Latvia, Lithuania, Romania and Slovenia. The Austrian expert also suggests that a community concept of multiple discrimination would raise consciousness and awareness, although she has not criticised her national equality bodies for ignoring the concept earlier.

The call for more Community legislation is rarely supported by arguments beyond the motivating effect of Community legislation in general, and the motive of raising awareness is repeated in no less than 12 out of 30 national reports.

Some experts support their suggestion for specific Community legislation with more specific arguments. The UK expert favours a general obligation under Community law for Member States to make cases of multiple discrimination actionable. This is based on the difficulties that UK courts have experienced in dealing with intersectional discrimination as a result of the comparator test. Similarly, the Irish expert suggests that Community law should outlaw ceilings for damages in discrimination cases, at least when several forms of discrimination are combined.

Again, this is rooted in specific national experiences, as the ceilings in damages in Irish law make claims for multiple discrimination undesirable.

The Swedish expert recommends the Swedish national system, which has an open list of grounds, as a model for Community law on the basis that this ‘silently integrated approach allows a flexible reaction to cases of multiple discrimination’.

The Icelandic expert considers that a fundamental conceptual re-orientation of Community legislation combating legislation may better serve the objective of equality than introducing a Community law definition of ‘multiple discrimination’.

A number of experts point to the fact that the different scope of application of the non-discrimination principle in relation to different grounds restricts the practical effect of the concept, because claimants are forced to focus on the ground with the widest scope of application (experts from Belgium, Cyprus, Estonia, Finland, Italy, and Latvia). Consequently, claims for aligning the scope of application are made, frequently with reference to Community legislation. The Greek expert, on the contrary, hopes that acknowledging intersectional discrimination will serve to enhance the scope of application of sex equality law.

She writes: ‘Through multiple discrimination, gender discrimination can be addressed in all areas covered by the Directives that prohibit discrimination on

–  –  –

A few experts are reluctant to request more Community legislation. The German, Polish, Norwegian and Spanish expert consider that more research into practical difficulties and adequate methods to redress these would be necessary to create an adequate approach in Community law. The Greek expert warns in particular against a Directive only dedicated to multiple discrimination, thus contradicting the Italian expert, who demands just that. The French expert seems undecided whether she considers reinforcement of the legal approach to multiple discrimination necessary at all.

In conclusion, the accumulated positions of the experts would suggest that the Community legislator should, as a priority, remove obstacles to adequate legal responses to multiple discrimination. These obstacles consist mainly of the comparator approach (contained in the Community law definition of direct discrimination and, arguably, also indirect discrimination), and the differences in scopes of application of Community instruments.

Beyond this, a large majority of experts would wish that Community legislation is used to motivate national legislators to enact corresponding national legislation, or to change it to facilitate adequate legal responses to multiple discrimination. The UK and Irish experts make a convincing case that, within the specific legal tradition of their countries, multiple discrimination cases are either not acknowledged or not sanctioned adequately. The UK expert recommends the explicit inclusion of multiple discrimination in the concept of non-discrimination in Community law. The Irish expert requests clarification that discrimination on two or more compound grounds can be investigated and proven together. For these legal traditions, a positive obligation on Member States to make sure that the problem is tackled is seen as necessary.59 While most experts stress the ‘awareness function’ of legislation, this expert would like to stress that the requirements for Community legislation are of a different kind. Under Article 5 EC, Community measures in fields such as discrimination law require that the suggested aim will not be achieved at national level, and can be better achieved at Community level (principle of subsidiarity). In this regard, the advice of some experts is that problems in addressing multiple discrimination are not best addressed by legislation, and this relates in particular to awareness-raising.

b) On the need of a definition of multiple discrimination in Community law 19 out of 30 experts express the view that a definition in Community law is necessary.

These include a number of experts (Austrian, Cypriot and French) who have explained that within their national systems, protection against multiple discrimination would be feasible even in the absence of a definition. However, these experts still consider a Community definition a useful supportive means for pursuing cases of multiple discrimination. This seems to contradict their national reports to a certain extent.

The most frequently given reason in support of a Community law definition is that it would enhance clarity and raise awareness of the problem. The UK expert states that a definition of the concept in Community law would help to overcome

See also McColgan (2007: 92-3).

22 Multiple Discrimination in EU Law governmental inertia. A similar approach is taken by the Slovak and the Czech expert.

9 out of 30 experts are more reluctant in relation to the Community definition.

The Danish, German, Luxembourg and Dutch expert explicitly reject this proposal, partly because they find it premature. The Spanish expert stresses the need to raise awareness, but expresses doubt whether a legal definition is the best way to achieve this. The Greek expert recommends a very basic definition, in order not to prevent development in case law. The Swedish expert rejects a definition both for Community and national law as this would inhibit flexibility for case law developments.

c) Towards cautious steps in Community legislation All this would point towards a cautious approach in legislation, which refrains from exhaustive lists or a fixed definition of multiple discrimination.

There is even the danger that a definition would clash with national traditions. If a national court has acknowledged multiple discrimination in the past in the absence of a legal definition, it might feel compelled to take a narrower approach once a narrow definition in Community law is available.60 A piece of legislation that clarifies that multiple discrimination is covered by the EU law definitions of discrimination would be helpful, though. Given the problems created by divergent legal rules for discrimination on different grounds, it would not seem advisable to integrate such a provision in only one directive, just because it happens to be the one being dealt with at present by the legislative institutions. It would be preferable to have parallel provisions for all grounds of discrimination in this respect. This would also mitigate against the introduction of a definition of multiple discrimination only into the planned directive on equal treatment irrespective of disability, age, sexual orientation and religion and belief.

4. Recommendations

– There is definitely a need for more research combining social sciences and legal approaches. Such research should build on existing research, and accordingly link in with the ‘GENDERRACE’ project as far as possible. Research should include analysis of legal material, and possibly focus groups including legal practitioners or other methods through which barriers to and the practical effects of acknowledging cases of multiple discrimination can be assessed. If conducted in a thoroughly comparative way, such research could also help to explain problems of proving intersectional cases in different jurisdictions, which could again be a useful support for national legislators wishing to achieve a wider use of legal protection through adequate changes in procedural law. The research should also consider effects of EU equality law on the acknowledgment to multiple discrimination, and not shy away from naming negative effects.

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