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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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As mentioned above, ‘Senate I’, which deals with gender-related discrimination in all areas, is also competent for all cases concerning multiple discrimination involving gender. In practice, the chairperson of ‘Senate I’ screens all incoming applications, to see whether multiple discrimination is concerned, and distributes the incoming files amongst the senates. Therefore the Equal Treatment Commission – as well as the Equal Treatment Ombud – plays and will play an important role in building up expertise and in raising awareness also for cases of multiple discrimination.

Furthermore, the equality bodies play an important role for possible victims of violation, as in particular the Equality Ombud provides for easy and free of charge access to information, counselling, as well as to enforcement of equality rights through her competence to file an application to the Equal Treatment Commission.

8. Reinforcement of legal approach at EU level necessary?

Reinforcement of the legal approach aimed at combating multiple discrimination at EU level would certainly lead to reinforcement at national level and therefore would help improve the enforcement of equality rights. Reinforcement of the legal approach

could entail:

28 Multiple Discrimination in EU Law – a clear definition of the phenomenon of multiple discrimination;

– the possible impact of ascertained multiple discrimination on the question of sanctions, damages and awards; and – a clear concept or guideline on how institutions like courts, equality bodies etc, should deal with cases in order to detect the phenomenon as such and/or carefully handle such cases in practice.

This would not only strengthen the legal position of individuals/victims of discrimination by offering better means of enforcement of their rights, but would also be a new incentive from the EU level, leading to political and/or public debate and raising awareness of the phenomenon of multiple discrimination as such.

9. Community-law definition of multiple discrimination necessary?

Yes, it would certainly help to raise awareness with regard to the phenomenon of multiple discrimination as well as strengthen the legal concept of multiple discrimination in Austrian national law, in particular by making it more visible and therefore easier to identify.

10. Available literature or research?

– Michaela Windisch-Graetz ‘Probleme der Mehrfachdiskriminierung in der Arbeitswelt’, Das Recht der Arbeit 2005, 238 ff.

– Veronika Bauer ‘Mehrfachdiskriminierung – Das Konzept der intersektionellen Diskriminierung als Schritt zu einem moderneren Nichtdiskriminierungsrecht?’, Juridikum 2008, 50.

– Europäisches Trainings- und Forschungscenter für Menschenrechte und Demokratie ‘Intersektion mit den Schwerpunkten Gender, Alter Behinderung, Migration, sexuelle Orientierung und sozialer Status’, Good Practices-Sammlung – Empfehlungen, Graz 2008: http://www.etc-graz.at/typo3/fileadmin/user_upload/ ETC-Hauptseite/publikationen/Occasional_papers/IntersekETC_080619.pdf – Sandra Konstatzky ‘Chancen-gleich? – Die jüngste Novelle – aktuelle Probleme im Gleichbehandlungsgesetz’, Juridikum 2008, 31.

– Martina Thomasberger ‘Änderungen des Gleichbehandlungsgesetzes und des Bundes-Gleichbehandlungsgesetzes’, Das Recht der Arbeit 2008, 458.

– Thomas Majoros ‘Richtlinienkonforme Bemessung des ideellen Schadens im Gleichbehandlungsgesetz’, Das Recht der Arbeit 2007, 515.

Switzerland:

– Eidgenössische Kommission gegen Rassismus:

http://www.ekr.admin.ch/themen/00067/00070/index.html?lang=de – Fachhochschule Nordwestschweiz, School of Management and Law,

Diskriminierung einfach – doppelt – mehrfach:

http://www.mehrfachdiskriminierung.ch

11. Further research Research always seems useful, in particular on regional aspects of discrimination, concerning different groups of persons, in order to identify the specific features of multiple discrimination and/or the different forms of discrimination, the specific needs of certain individuals and/or groups of individuals, and the distribution of results would promote a good basis for courts, equality bodies and other institutions and stakeholders in order to detect, monitor and properly handle cases of multiple discrimination.

–  –  –

Preliminary note The federal nature of Belgian institutions is irrelevant to the subject of the present report, as multiple discrimination is not covered by the various federate antidiscrimination laws any more than it is by federal legislation.

1. Concept of multiple discrimination in legislation The concept of multiple discrimination is not used, and consequently not defined, by any statute in Belgium. This means that every element of a multiple discrimination situation must be challenged separately in the light of one or several statutes;

however, this may be done through the same proceedings.

2. Case law There are no known cases if one restricts the notion of multiple discrimination to the framework of Article 13 EC. However, the expert can think of several situations in which a better fitting phrase was ‘multi-layered discrimination’, i.e. gender discrimination was hidden under an obvious difference of treatment which was not envisaged by Directives 2000/43/EC or 2000/78/EC, but could be challenged on the grounds of other instruments such as Articles 10 and 11 of the Constitution (the general principle of equality under the law) or Directive 97/81/EC (on the prohibition of discrimination against part-time workers).





In those cases (or rather ‘situations’, as for several of them a positive result was achieved without litigation), eliminating one type of discrimination meant getting rid of the other as well, so that whether or not to raise the gender discrimination claim was largely a question of strategy or a function of circumstances (e.g. was there a woman willing to complain about gender discrimination?).

3. Any cases where gender-related discrimination is overlooked?

The expert can add three examples to the previous answer:

– Until 1 January 2000, part-time contractual employees in the public services were not entitled to seniority increments in their pay scales. Indirect discrimination against women was obvious and could have been challenged on the grounds of Article 119 EEC/141EC (see the ECJ’s decision in Nimz C-184/89 [1991-I-297]), but the public services trade unions could not find any prospective claimants, given the risk of victimisation. The issue was solved when Belgium had to transpose Directive 97/81/EC, as authorities and unions agreed that the principle of non-discrimination against part-time workers must be applied to pay as well as to other working conditions.2 – The Employment Contracts Act of 3 July 1978 maintains a rigid distinction between white-collar (intellectual) and blue-collar (manual) employees. In case of dismissal of a blue-collar by the employer, the statutory notice period under Article 59 of the Act was very short (28 days, or 56 after twenty years’ seniority), which the Council of Europe’s Social Rights Committee found insufficient under the European Social Charter. In 2000, the National Labour Council adopted Collective Agreement No. 75, which lengthened the notice period (now from a minimum of 35 days to a maximum of 112 according to seniority). However, Collective Agreements are not applicable in the public sector and the only means to extend the reform to blue-collar employees in See the Network’s Equality Quarterly News, No. 1/2000 and 2/2000.

30 Multiple Discrimination in EU Law the public services would have been to integrate the provisions of C.A. No. 75 into Article 59 of the Employment Contracts Act, a suggestion which the social partners of the private sector firmly rejected, arguing that the matter must remain regulated by way of negotiations.

The deadlock was broken when the Equal Opportunities Council produced its Opinion No. 47, which showed that the obvious discrimination (under Article 10 of the Constitution) between contractual blue-collar employees in the private and public sectors concealed further indirect discrimination (under Directive 76/207/EEC) against women, who represented the vast majority of that category of personnel in the public services.

In this situation, gender equality was an effective lever for social progress and on 23 April 2003, Article 59 of the Employment Contract Act was amended to achieve the desired effect.3 – Also in the public services, the ‘home or residence allowance’ is a modest supplement to lower pay scales (the ‘residence’ benefit is half of the ‘home’ benefit).

Up to 1999, the conditions of entitlement were different for members of married couples, who only had to meet the pay ceilings set by the regulations, and of unmarried couples, who must have dependent children for whom they were entitled to family benefits.

It was not until 1996 that a woman complained about the gender discrimination which was hidden under the obvious difference of treatment of married and unmarried couples. Under the consolidated Act on Family Benefits for Paid Workers, of 19 December 1939, when both parents may be entitled to family benefits for the same children, the priority is automatically given to the father; thus, for an unmarried couple, the woman was never entitled to the ‘home allowance’, even if she met the pay ceiling.

When the case was brought to the Labour Court of Appeal in Liège, the court found without any hesitation that there was discrimination under the domestic legislation on gender equality (at the time, the Act of 4 August 1978).4

4. Proof and procedural problems There is nothing to report given the absolute lack of case law. However, it should be remembered that the three federal Acts of 10 May 2007 (the ‘Gender Act’, the ‘Race Act’ and the ‘Discrimination in General Act’) were drawn up along lines that are as uniform as possible, so that their provisions on procedure and the burden of proof are identical. This should limit the risks of contradictory findings in cases of multiple discrimination.

Still, another clash risk results from the scope of the Discrimination in General Act, which includes a long list of criteria beyond those of age, handicap, beliefs and sexual orientation. If one imagines a case of alleged double discrimination in employment, grounded on gender and, for instance, poor health (as distinct from handicap), a ‘direct distinction’ based on the first criterion may not been justified (in compliance with EC law) while objective justifications are admissible for the second one. The fear remains that a court might overlook such a subtlety and accept justifications on both counts, making the claimant’s burden of counter-proof heavier than intended by the EC directives.

See the Network’s Bulletin Legal Issues in Equality, No. 1/2002 and 2/2003.

Judgment of 17 October 2000, Chroniques de droit social 2001 p. 308 with a comment by J. Jacqmain.

–  –  –

6. Effects of legislation and case law in practice No information available.

7. Role of equality bodies It must first be recalled that the Centre for Equal Opportunities and the Struggle Against Racism was instituted in 1993; the Act of 25 February 2003 extended its jurisdiction to all types of discrimination (under EC directives and under federal legislation) except gender. On the other hand, the Institute for Equality of Women and Men was not created before 2002, and experienced various administrative problems before taking off.

Moreover, the Centre has always preferred warning and mediation as its methods of intervention, and is extremely reticent about providing details of its actions. Thus, one can only guess that, as long as the Centre was the sole antidiscrimination agency, it concentrated on the non-gender aspects of any multiple discrimination situations of which it was informed, confident that the maltreatment could be generally redressed.

Since the Institute became operational, the two agencies have developed certain forms of collaboration. Obviously, misdirected complaints must be forwarded to the right agency, and instances of overlapping jurisdictions, such as sexual orientation (Centre) and transsexualism (Institute), must be solved adequately; both agencies also have competence to conduct or commission research, and can do so jointly on issues of common interest such as ‘gender and immigration’.

8. Reinforcement of legal approach at EU level necessary?

According to the Statement of Purposes of the bill of a Discrimination in General Act,5 the initial intention was to transpose all EC directives on discrimination by way of a single Act, one advantage of which would have been an easier treatment of multiple discrimination situations. However, a three-act pattern was chosen instead, mainly in order to avoid a dilution of the transversal gender dimension and also for fear of blunting the instrument with regard to the nuances of EC law and the ECJ’s case law.

Unless practice demonstrates that the legislators’ order of priorities was wrong, the expert sees no reasons to regret their choice.

9. Community-law definition of multiple discrimination necessary?

Maybe at a more elementary level, the expert will only express the wish for a clarification of the hierarchy of types of discrimination, which arose from the ECJ’s surprising decisions in C-144/04 Mangold [2005-I-9981] and C-427/06 Bartsch [2008, unreported], as the first one seemed to state that the prohibition of discrimination grounded on age was more fundamental than when any other criterion (including gender) was used, and the second one appeared to have abandoned that view.

Documents parlementaires/Parlementaire Stukken, Chambre/Kamer, 2006-07, No. 2721/001, pp. 11-13.

32 Multiple Discrimination in EU Law

10. Available literature or research?

Nothing to report. Indeed, in the master comment on the Acts of 10 May 2007,6 the issue of multiple discrimination is discussed in the contribution7 of Prof. J.H. Gerards, from the University of Leiden, who mainly relies on Dutch, British and US sources.

This can hardly be regarded as an original piece of Belgian literature on the subject.

11. Further research At a national level, only practice can indicate what kind of research would be useful.



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