CHAPTER 4

Equality and Nondiscrimination

At the heart of European employment laws lie the concepts of Equality and Nondiscrimination. Article 13 of the Treaty of Amsterdam prohibits discrimination on the grounds of race, gender, pregnancy, sexual orientation, religion, disability, or age. Two further directives establish the Employment Equality Framework, which requires states to transpose measures into national law in order to ensure protection from discrimination in employment. Article 21 of the Charter of Fundamental Rights contains a general prohibition on discrimination as does Article 14 of the European Convention on Human Rights.

In this chapter we are going to examine some of the key issues in relation to equality and nondiscrimination.

Equal Pay

The right to equal pay derives from articles 141 and 119 of the original EEC Treaty and is now contained within Article 157 of the Treaty on the Functioning of the European Union (TFEU). It provides that men and woman shall get the same rate of pay for the same work. It is supplemented by Directive 2006/54, which covers the implementation of equal pay in member states.

The original inclusion of equal pay in Article 119 did not carry with it the power to enforce equal pay; rather, it was left to member states to implement this in their national law. This process was fraught with delays and in the interim cases were taken to the CJEU, which shaped the future of equal pay in EU law. One of the most important cases is Defrenne No. 2.¹ Defrenne brought a series of three cases against her employer and in the second one she claimed that she was paid less than her male counterparts in contravention of her right to equal pay under Article 119. It was agreed that the work of an air hostess and a cabin steward were identical and thus the issue of discrimination in pay was not disputed. The question before the court was whether the rights in Article 119 introduced directly into national law a provision that could be relied on in the national courts, notwithstanding existing national law provisions. If they did, then at what date did this become effective? The court found that as the principle of equal pay was one of the fundamental principles of the Union, the provisions of the treaty were directly applicable and “give rise to individual rights which the court must protect.”² Therefore, the right was to be directly effective from the date of the judgment as the principle of nonretrospectivity would not allow it to go back further.

The Equal Pay Directive (75/117), which was designed to secure equal pay, entered into force several weeks prior to the Defrenne judgment. This determination did not make the directive redundant; rather, it has served to compliment the treaties in ensuring implementation of equal pay in cases of indirect discrimination. This directive was repealed in 2009 and replaced with the Recast Directive 2006/54. The purpose of this (according to its explanatory memorandum) was to simplify and modernize union law. Under the Recast Directive, many directives relating to equality and nondiscrimination have been brought together and consolidated.

The law provides for equal pay for equal work for male and female workers; however, it does not define what a worker is. The issue came before the CJEU in Allonby where the court determined that the term was to be construed widely and to include independent contractors.³ The employment relationship will be determined on the facts of the case and is not dependent on classification under national law. For example, a person may be classed as self-employed under national law rules but this would not preclude them from being classified as a worker for the purposes of EU law.

The law applies to both public- and private-sector workers. In Commission vs. Germany⁴ the court found the provisions were “of general application” and therefore applied to public-sector workers, a position that was affirmed in Gerster.⁵

The wording of the law on equal pay suggests that its application is limited to situations where men and women are working for the same employer and carrying out the same work for different rates of pay. In cases where there are different rates of pay across an industry with different employers, there is not one single source for the disparity and therefore no one can be held responsible. This is a principle established in the Lawrence case where the applicant Mr. Lawrence and 446 colleagues (most of whom were women) challenged different pay in circumstances where the main employer had contracted out to three independent companies who then employed workers on different rates of pay.⁶ As the difference couldn’t be attributed to one source (there were three employers), the laws could not apply.

What constitutes pay has been interpreted broadly; it is any payment given for work, whether in the form of cash or benefit. It has been held to include, inter alia, sick leave payments,⁷ pay received during maternity leave,⁸ family and marriage allowance,⁹ compensation for unfair dismissal,¹⁰ travel concessions,¹¹ Christmas bonus,¹² paid leave,¹³ redundancy payments,¹⁴ and severance packages.¹⁵ The source of the pay is immaterial. It can result from the contract of employment, collective agreements, ex gratia payments, statutory provisions, or judicial determinations. While the treaty provision does not mention collective agreements, the directives expressly do so, and this is an example of where they are used to supplement the primary law. In Kowalska the court found a clause in a collective wage agreement that excluded part-time employees (predominantly female) from severance grants as unlawful.¹⁶ In Nimz the CJEU found that where there is an issue of discrimination in a collective agreement, the national court must set aside that provision and not wait for the agreement to be removed through the collective bargaining process.¹⁷

Ex gratia payments are payments made by the employer where they are not legally or contractually obliged to do so—they are voluntary payments. In Garland the court considered the travel facilities given to the family of retired male workers but not female workers. The court found that these payments were connected to the workers’ employment and therefore subject to the equal treatment principle.

As per Article 157, the requirement of equal pay is “equal pay for male and female workers for equal work or work of equal value.” In Kenny the court found that if the pay of one group of workers is significantly lower than that of another group, where they are doing work of equal value and where the lower paid group is predominantly female, there will be a prima facie case of discrimination.¹⁸ Where this arises it has the effect of reversing the burden of proof—the employee does not have to show that there was discrimination; rather, the employer must show that there was not. The court has had to look closely at job classification schemes. This is where the employer may evaluate different components of a job in order to justify a difference in pay. The scope of equal work is qualitative—the focus is on the nature of the work performed and absolute parity is not necessary. In Murphy factory workers argued that they should be paid the same rate as store laborers. It was established that the female workers’ work was of a higher value than that of the male store laborers and therefore the directive was engaged.¹⁹ The court found that to judge otherwise would mean that employers could circumvent the law by imposing more onerous tasks for less pay.

Decisions should not be based on qualifications alone; rather, considerations should be had to the work carried out. This issue was dealt with in Angestelltenbetriebsrat der Wiener Gebietskrankenkass where the court was asked to determine whether two groups carrying out identical tasks but with different levels of qualification were in fact performing the same work. It found that if two groups with professional training in different areas do different tasks then they are not performing the same work; however, where they perform the same tasks they may be performing the same work, but reference will be had to the particular skill and training of each group. From this case it appears that the court will take qualifications into account in making its determination, but it will never be the sole consideration upon which the court makes its decision.

The prohibition on pay discrimination applies to both direct and indirect discrimination. However, the grounds of this discrimination is limited to sex. These are defined in Article 2 of the Recast Directive as follows:

Direct discrimination is easier to prove and it has been determined in the following situations:

Indirect discrimination can be a little more difficult to prove given that the pay rates on their face will be identical. This, as the definition states, is a measure that appears to be fair but in reality is discriminatory. The first cases of indirect discrimination relating to pay that the court dealt with were in relation to part-time workers who overwhelmingly were women. While protection for part-time workers is now covered by the Part-Time Workers Directive (97/81), prior to its introduction it fell to the CJEU to determine the issue. In Jenkins vs. Kingsgate the claimant worked part-time and complained that she was being paid a lower hourly rate than her full-time male colleagues.²¹ Those on this part-time hourly rate were predominantly women. The court found that a difference in pay between full- and part-time workers does not automatically result in discrimination and can be objectively justified. However, if in reality it is a means of reducing the level of pay of a particular group and that group is predominantly women, there may be indirect discrimination (remember, the pay discrimination must be on the grounds of sex).

In coming to its decision the CJEU relied heavily on an American Supreme Court case: Griggs vs. Duke Power Co.²² Here the court held that the use of employment tests or qualifications as a prerequisite for employment or promotion (on the face of it a neutral criterion) amounted to racial discrimination as it disproportionately disqualified minority applicants. Justice Burger for the first time wrote of the “disparate impact” doctrine, which is contained in the Civil Rights Act 1964 and has now been applied to EU law.²³

Where a successful claim of discrimination in relation to pay has been made, the remedy is not provided for by EU law; rather, it is for national law to fashion the remedy. Practically, the remedy will most often be in the form of monetary compensation. Generally, the amount of damages will be quantifiable and will not pose too much of a difficulty for the court.

In addition to the protection given by EU law, the ESC also prohibits discrimination on the grounds of sex in relation to pay. The provision of equality in general terms of men and women was not originally included in the 1961 Charter; the only explicit reference was found in Article 4.3, which provided for equal pay for equal work. Now contained within Article 20 of the Revised Charter, Section C stipulates that equal treatment and opportunities in matters of employment must be implemented in terms of employment and working conditions, including remuneration.

The system in the EU is not at all dissimilar to that in the United States and, as noted previously, has influenced the development of indirect discrimination in the EU. The first piece of legislation governing equal pay in America was the Fair Labor Standards Act 1938, which made it illegal to pay women less than men based solely on their sex, and can also be litigated under the Civil Rights Act 1964. The equal pay provisions have historically been fewer in America than they are in the EU. While the EU prefers to look at the circumstances as a whole, U.S. legislation sets down a list of what it will look at to determine whether there is a claim for equal pay. Where the EU does not require absolute parity it appears that the American system does. In determining whether equal work was being carried out they will examine experience, training, qualification, skill, levels of physical exertion, accountability, and working conditions. Further, defenses are available to the employer under the legislation and it falls to the employer to show that any discrimination in pay was due to a reason other than sex. Prior to the Corning case it was a legitimate defense to show that lower pay for women was in line with the going market rate.²⁴ The Ledbetter Act 2009 was introduced to overturn a previous decision of the Supreme Court that held that the claim must be made within 180 days of the discriminatory act first occurring and thus declared the case inadmissible.²⁵ The act determines that each discriminatory paycheck creates a new actionable offense from which the 180-day time limit will run, regardless of when the discriminatory act began.

The fact that a gender-based pay gap remains, coupled with discriminatory treatment, has led to criticism. It has been argued that America talks of equality as a core value while consistently tolerating inequality in certain groups.²⁶

The proposed Paycheck Fairness Act would supplement the strict conditions by making it an offense to pay men and women different rates of pay for substantially the same work and it would also limit the defenses an employer can use. It is harsher on employers, providing expressly for punitive damages for sex discrimination.

Social Security

The court in Defrenne determined that social security benefits could not be considered as pay and therefore fell outside of the scope of the Equal Pay Directive as they are not financed exclusively by the employer.²⁷ It should be noted in this context that we are not talking about rights to social security or rights to an adequate level of social security generally; rather, we are referring specifically to social security rights by virtue of employment, such as sick leave and pension entitlements. The Equal Opportunities Directive (76/207) originally proposed to include social security within its remit but this was dropped due to the diversity of member states’ social security systems and the general reluctance to commit to a principle of equal treatment in this area.²⁸ As a result the Equal Treatment in Social Security Directive (79/7) came into effect in 1978 and gave member states six years to transpose its objectives into national law. However, even after this unusually long implementation period (states are normally given two years) many member states had still not taken affirmative action to ensure equality between men and women in social security. As a result, this led the CJEU to determine that the directive had direct effect and could be relied upon in national courts. For example, the court in McDermott vs. Cotter held that the directive was “sufficiently precise and unconditional to allow individuals, in the absence of implementing measures, to rely on it before national courts as from 23 December 1984.”²⁹ Essentially, the court here is saying that once the six-year period elapsed, regardless of whether the state had taken legislative steps to give effect to the rights, they would become directly effective and applicable in national courts.

As stated earlier, this section is not concerned with social welfare generally and the directive applies to the working population of employed or self-employed persons, those whose economic activity has been interrupted by one of the enumerated risks, and those seeking employment. The essential element is that the person is either in the workforce or actively seeking to enter it. The CJEU has been somewhat generous in determining how long a person can be out of work and retain his or her status as a worker for the purpose of the directive. In Nolte, the applicant worked a part-time job until March 1987. In June1988 she fell ill and notwithstanding that she had been out of work for 15 months prior to her illness, the court found that she was someone who normally worked for remuneration and was therefore a worker.³⁰ Those who have never engaged in economic activity fall outside of the scope of the directive, as do those who have had a break from the workforce for a reason not specified in the directive. In Johnson, the claimant had given up work to look after her daughter and did not qualify as a worker as this was not one of the risks (outside of parental and maternity leave, which we will look at later) listed in the directive.³¹

Once the activity engaged in is economic, the level of pay is irrelevant. In Megner and Scheffer the court rejected arguments that people on low-hour contracts were not members of the working population.³² The court found that the fact that the working hours did not meet all of the claimant’s financial needs does not prevent him from being a worker and therefore derives protection from the directive.

In the context of a person seeking employment, previous lack of engagement with the workforce or reason for leaving a previous employer is irrelevant.

The schemes covered by this directive relate to employment and apply to statutory schemes that provide financial assistance for sickness, invalidity, old age, accidents at work, and occupational disease and unemployment.

The benefit must be derived from a statutory scheme that may or may not be part of the state’s overall social security regime. Whether the benefit falls within this definition may turn on the facts of each case. Two cases from the UK are useful to illustrate the point. In Taylor the state argued that winter fuel payments made to those who have reached retirement age was there to assist those who could not pay their heating bills.³³ The court rejected this and stated that as the benefit was given to those who had reached statutory retirement, it went to addressing the risks associated with old age and therefore fell within the directive. In contrast, Smithson concerned a dispute over housing benefit.³⁴ The scheme in question allowed for a benefit that was calculated on the basis of the needs of the applicant versus their actual income. Issues such as sickness or invalidity (as covered by the directive) were taken into account. The court here found that the directive could not be applied. The benefit was intended to compensate the applicant for the gap in income and was not an autonomous scheme designed to ameliorate one of the risks identified by the directive.

The principle of equal treatment enshrined in the directive means that there can be no discrimination, direct or indirect, on the grounds of sex in relation to the scope of schemes, calculation of payments and contributions, and calculations of increases for spouses and dependents. This directive also applies to discrimination for postoperative transsexuals. In Richards the claimant underwent a male-to-female gender reassignment. At the age of 60 she applied for a pension and was refused.³⁵ Men were only eligible for a pension when they reached the age of 65. The court held that this treatment was discriminatory under the directive. This ruling clearly draws on the case of Goodwin vs. UK in the European Court of Human Rights.³⁶ Christine Goodwin, a postoperative male-to-female transsexual, claimed that the failure to recognize her new gender, the failure to allow her to marry a male partner, and the difference in age at which she could claim her pension violated her rights under the European Convention on Human Rights. The court agreed and shortly after this ruling the UK enacted the Gender Recognition Act 2004, which allows for the new gender to be legally recognized.

Equal treatment is mandatory and cannot be denied even if it affects only a small number of potential beneficiaries. In terms of direct discrimination, the rate of benefit payable, the conditions entitling one to the benefit, and contributions must be identical for men and women. In Drake, the claimant was a married woman who worked until mid-1984 at which point she gave up work to look after her severely disabled mother.³⁷ She made an application for an invalid carer allowance, a benefit payable to persons engaged in the care of the disabled. She was refused this allowance as she was living with her husband. This practice was deemed discriminatory as it would be payable to a man in the same circumstances.

Indirect discrimination arises where the conditions may seem identical but in practice it is more onerous for one gender to attain the benefit. In Teuling Worms the issue of marital discrimination was raised.³⁸ In order to access benefits for incapacity three things were considered: marital status, income earned by the spouse, and the number of dependents. The court found that this provision would be discriminatory unless it could be objectively justified as the proportion of women with dependent husbands was significantly lower and therefore men would be paid a higher rate under the scheme.

As aforementioned, there are a number of exceptions to the applicability of this directive. First, occupational social security schemes are not covered, nor are family or survivors benefits. Further, Article 7 provides for a number of derogations that primarily concern advantages given to women and not men, such as benefits a married woman may get as a result of her husband’s insurance, lower age for pension attainment, and recognition of women who have not been in employment due to being engaged in raising families.

Different treatment may be objectively justified. For example, in Commission vs. Belgium,³⁹ different rates of benefit were calculated according to family circumstances, which left women being paid less than men. The court found that the state’s objective was to take into account different needs of claimants and its action was therefore justified.

Occupational social security benefits fall neither within pay nor within social security directives. Until the seminal case of Barber in the CJEU it was assumed that these schemes fell outside of the scope of Article 157 TFEU.⁴⁰ In Barber, the claimant was part of a pension scheme that entitled him to certain benefits.⁴¹ He was made redundant at 52 but could not get full benefit until 55, whereas a woman in his position could get this benefit at 50. The court found that as this pension was intended to replace the statutory scheme, was negotiated as part of an employment contract, and was financed wholly by the employer, this was pay as per the Equal Pay Directive. The court accepted that its ruling could cause chaos and gave it prospective effect only. To strengthen this position a protocol to the Maastricht Treaty was adopted establishing clearly that no occupational social security scheme would be considered remuneration before the date of the judgment.⁴² As the law developed incrementally through the courts, the Equal Treatment in Occupational Social Security Schemes Directive (86/373) was adopted and entered into force in 1993. The Barber case fell within the midst of the implementation period for this directive and it was amended in light of the decision. This directive has now also been incorporated into the Recast Directive.

The European Court of Human Rights does little to add to the body of law in relation to social security. Article 14 is not a stand-alone right and must be pleaded in conjunction with an additional right contained in the convention. It has been used to ensure certain procedural safeguards, as in Koua Poirrez vs. France where it was found that differential treatment of social benefits between French and foreign nationals was in breach of Article 14 in conjunction with Article 1 Protocol 1.⁴³ Further, it has been used to ensure that any entitlements are implemented in a nondiscriminatory manner. The landmark case of Petrovic vs. Austria dealt with parental leave entitlement for fathers.⁴⁴ The court determined that there was no obligation to provide entitlements such as parental leave under Article 8. However, the fact that Austria granted such entitlements, failing to implement such allowances in a nondiscriminatory manner was a breach of Article 8 in conjunction with Article 14. Notwithstanding this, the court at the time held that the state had not exceeded its margin of appreciation as there was no general consensus among member states⁴⁵—a ruling illustrative of the difficulty in imposing positive obligations in circumstances where welfare provisions vary from state to state.⁴⁶

Despite the fact that this case was ultimately unsuccessful, it precipitated further cases, such as Niedzwiecki vs. Germany where the court found a violation of Article 8 in conjunction with Article 14 due to differential treatment in child benefit for those who did not hold a residence permit.⁴⁷

In the case of Markin vs. Russia it was held that the failure of Russia to give servicemen the parental leave that was allowed to servicewomen amounted to a breach of the convention.⁴⁸ It was noted that the foregoing case of Petrovic was unsuccessful on the grounds of a lack of consensus between member states, which here was overcome as the majority of member states had legislation in place providing parental leave for both parents.⁴⁹

Equal Opportunity

Equal opportunity for men and women (in employment) was initially encompassed in Directive 76/207 and covered equality in areas of access to employment, vocational training, promotion, and working conditions. This directive was amended by Directive 2002/73 and required transposition into national law by October 2005. In the intervening years between the two directives a considerable body of case law was amassed by the CJEU and the purpose of the second directive was to take account of this jurisprudence and establish it in law for all member states. This directive somewhat bridges the gaps in the previous two directives and covers certain issues that are omitted from the Equal Pay Directive and the Equality in Social Security Directive. Again, the directive only applies to discrimination based on sex and as such sexual orientation is outside of its scope of application. This has also been encompassed by the Recast Directive.

The directive itself is a broadly expressed call for equal treatment of men and women in the following areas:

The directive applies to both public and private sectors. The issue of the military has proved to be a tricky area for the court in this regard. It has held that compulsory service for men in the German army did not attract the provisions of the Equal Treatment Directive;⁵⁰ however, once a person was in the army, it did apply.⁵¹

The access to employment aspect of the directive has been deemed to have direct effect. It has been interpreted widely to include not only matters prior to employment but also those that materially affect a decision to keep or accept employment. Discrimination in matters relating to accessing vocational training is also prohibited under the directive. In Schnorbus it was held that preferential treatment given to male applicants who had completed military service discriminated against women as the service was compulsory for men and not women.⁵² Equality in employment conditions applies to all aspects of the employment relationship, including dismissals.

Direct discrimination is where the employer treats one worker less favorably on the grounds of sex. The difference in treatment must be on the grounds of sex. Therefore, where a rule applies equally to both men and women there can be no direct discrimination under the directive.⁵³ The restriction of household allowances to married couples was held not to engage the directive as the reason for discrimination was marital status and not sex.⁵⁴ In contrast to indirect discrimination, direct discrimination cannot be objectively justified under this directive. In the case of Kleist the court found that the discriminatory treatment could not be justified by the objective of reducing unemployment in younger persons.⁵⁵

As we have already seen, indirect discrimination arises in circumstances where a provision appears to be neutral but its application results in discriminatory effect. This discrimination can be justified if it is to achieve a legitimate aim and its measures are proportionate to achieving that aim.⁵⁶

There are a number of generally accepted justifications set out in the Recast Directive. First, if the measure is genuine and determining occupational requirement, which means that certain types of work may be restricted to one sex depending on the nature of that work. In Commission vs. UK the court found the restriction on men entering the profession of midwifery a legitimate one.⁵⁷ It based its decision on social factors at the time, including the sensitive nature of the position. Whereas, in Johnston vs. Chief Constable of the RUC the refusal to allow a female member to be trained in firearms was held to be discriminatory.⁵⁸ The second exception is that it will allow seemingly discriminatory measures aimed at protecting women, specifically within the realm of pregnancy- and maternity-related issues. We look at this as a separate issue in Chapter 5. The third and final exception relates to positive discrimination. For example, in Kalanke the court considered a German law that stated that where there were two equally qualified candidates (one male and one female) the female candidate was to be appointed in circumstances where men significantly outnumbered women.⁵⁹ It found that laws that guarantee women priority went beyond the bounds of the exception. The strict approach taken here was somewhat loosened in Marshall where it was found that such a rule would be valid where it is guaranteed that objective criteria have been applied and doing so could potentially weigh in favor of the man.⁶⁰

The Charter of Fundamental Rights of the European Union, given Treaty status under the Lisbon Treaty, enhances the equality provision. Article 21 prohibits discrimination on the grounds of sex and Article 23 requires that equality “must be ensured in all areas,” implying that a proactive approach is required of member states.⁶¹ Article 23 is not limited to paid employment and includes work, a concept that could be linked to unpaid labor primarily undertaken by women.

The ESC also calls for equality in relation to matters of employment and occupation (Article 20). As stated previously, the original 1961 Charter only contained reference to equal pay between the sexes; the revised Charter of 1996 expands this to include vocational training, terms of employment, promotions, and access to employment. The article applies to all who are workers and this, following from the reasoning of the CJEU, has been held to include those seeking employment, those undergoing vocational training, and all other potential workers. Arguably, this goes further than the provisions contained in EU law. In terms of access to employment it requires that there be equality at all stages of employment, from advertising, interview and selection, conditions of work, and promotions to termination of the employment relationship.⁶² The principle of equality between the sexes has been identified to mean an absence of either direct or indirect discrimination. The term has not been defined in the ESC but the committee has determined that it is a difference in treatment in comparable situations that does not pursue a legitimate aim and is not based on objective and reasonable grounds.⁶³ Therefore, unlike the EU, the charter allows for justification of both direct and indirect discrimination. The ESC does not have an exception to the application of the provision in relation to the nature of the work being suited more to one sex than the other. Several countries have found themselves in violation under the periodic reporting procedure for excluding women from underground work, underwater work, or other work of a labor-intensive and arduous nature.⁶⁴ Any justification in this regard cannot relate to an entire occupation, but to certain occupational activities that can only be entrusted to a member of a particular sex. Thus, the difference with the aforementioned Commission vs. United Kingdom case would be that under the charter men would not be entirely restricted from entering the profession of midwifery, but may be restricted from the specific tasks associated with the profession. The only other exceptions under the ESC relate to the protection of women, again in relation to pregnancy- and maternity-related matters and measures designed to remove de facto inequality.

The state has a duty to ensure and promote equal treatment within its jurisdiction. The obligations require the state to ensure that legislative measures are in place, ensure that there is an appeals system or tribunal that can vindicate the right, and take practical measures to implement all aspects of equal treatment.

The Race Directive

Historically, issues pertaining to race were primarily dealt with in international and national systems. Although members of the EU had signed up to United Nations (Convention on the Elimination of all forms of Racial Discrimination and the International Covenant on Economic, Social and Cultural Rights) and Council of Europe (the European Convention on Human Rights and the European Social Charter) documents that prohibited racial discrimination, this did not automatically correlate to adequate and uniform protection. This is due to the difference in legal systems employed by states. In the application of international law, generally a state may be either monist or dualist.⁶⁵ Under a monist regime, international treaties automatically form part of domestic law.⁶⁶ The Dutch Constitution, having been described as the ‘only truly monist system in Europe,’⁶⁷ provides an excellent example where the state is obliged to promote the development of the international rule of law.⁶⁸ National legislation is not applied where it conflicts with international law;⁶⁹ however, courts have no power to nullify, or amend, offending national law—such power rests solely with the government.⁷⁰ Thus, where there is a conflict between international and domestic law, international law will prevail.⁷¹

In contrast, dualism asserts that international law does not automatically form part of domestic law.⁷² In order for it to be enforceable in national courts a positive act by the legislator is required.⁷³

If the Netherlands is seen as a truly monist state, Ireland could be called “ultra-dualist,”⁷⁴ a position clearly intended by the Constitution.⁷⁵ While it accepts international law “as its rules of conduct in its relations with other states,”⁷⁶ Ireland requires a positive act by the Oireachtas before any part of international law can be effective domestically.⁷⁷

Given that a core concept of EU law is its supremacy to national law, in order to ensure uniform and effective prohibition of racial discrimination it became clear that positive action on the part of the EU would be required. The EU began making moves in this direction as far back as 1980 with the Joint Declarations of the Institutions against Racism and Xenophobia.⁷⁸ However, declarations are generally seen as aspirational documents and are not legally binding. A wave of immigration in the 1990s into Europe highlighted certain racist attitudes of member states and increased lobbying to the EU for action. The group Starting Line Up, which comprised of representatives from over 200 NGOs, drafted proposed legislation in 1992. While this was a well-supported initiative, there was no basis on which it could be adopted as the EU must have competence conferred upon it in a treaty on which to base its legislation. If the EU has no competence in an area, it cannot legislate. The year 1997 was designated the European Year against Racism and with it came an increase in momentum and the establishment of the European Monitoring Centre on Racism and Xenophobia, which was tasked with gathering information and assisting with policy. Efforts culminated with the adoption of Article 13 of the EC Treaty, by virtue of the Treaty of Amsterdam, which singled out specific grounds of discrimination, including race.⁷⁹ The Action Programme against Racism was published by the commission in 1998 and proposals for a directive followed in 1999.

Directive 2000/43 on equal treatment of persons regardless of race or ethnicity (the Race Directive) was adopted in June 2000. It was fast-tracked through the process and achieved final adoption within six months. This speed can be attributed to three factors:

The purpose of the directive is set forth in Article 1: to establish a comprehensive framework to combat racial discrimination and to implement equal treatment in all member states. The directive sets out the minimum requirements that a state must adopt, but it is free to incorporate a more comprehensive system should it wish. These minimum requirements are not interpreted narrowly, but rather on the basis of the values upon which the directive was founded, allowing for a changing interpretation of minimum standards as society and law evolve.

The Race Directive directs that any law, regulation, or provision contrary to equal treatment must be repealed. The directive was to be implemented in national law (in this case all such offending laws, regulations, and provisions were to be repealed) by July 2003. Rather than merely determining that the directive would have direct effect (as is the case with most directives when the state misses the deadline), the commission instituted proceedings in the CJEU where states failed to comply.⁸¹ This again evidenced the seriousness with which the EU institutions addressed the issue of racism within member states.

In 2007, while all states had implemented the directive to some degree, the commission sent opinions to four member states requiring them to fully implement the directive. The problem areas that they identified included:

The Race Directive applies to a wider set of circumstances than the employment sphere and it applies to all public and private sectors. It requires equal treatment in the following areas additional to those considered in the employment relationship:

Thus, this marks a departure from the discrimination on the grounds of sex and is a recognition that discrimination can permeate other areas of life outside of those governed by the employment relationship. It applies to all persons regardless of nationality and prohibits both direct and indirect discrimination on the grounds of race or ethnic origin. The meaning of race or ethnic origin is not set out in the directive and it has been argued that it also encompasses discrimination on the grounds of skin color, even though this is not expressly articulated. Harassment has been found to constitute discrimination under the directive, and it is required to be directed toward a specific individual. In Ferma Feryn the court found that statements in general that a particular race would not be recruited were a breach of the directive’s provisions.

Under the directive, direct discrimination occurs where one person is treated less favorably than another in a comparable situation on the grounds of race or ethnic origin. No concrete definition has been given to this “comparable situation” and this, as in cases of gender discrimination, has been problematic, as seen in the cases discussed earlier. Indirect discrimination occurs where a practice or provision appears to be neutral but in reality has a disproportionate effect on a particular race.

Issues of indirect discrimination were considered in Belov, which involved the placement of meters to measure electricity consumption in two areas that were predominantly occupied by the Roma community.⁸² While the court found the case to be inadmissible, the Advocate General disagreed and found that the action was indirect discrimination but capable of justification if it prevented fraud and benefited its customer base as a whole.

There are three justifications contained within the directive. First, treatment that is based on nationality and not race or ethnic origin is excluded. Perhaps this exception was due to member states’ fears that work permit schemes could be seen as being indirectly discriminatory. Further, member states wanted to retain control of those entering their jurisdiction and as such the Race Directive applies to those lawfully present within the member state regardless of nationality. Determining whether discrimination has occurred due to race or nationality may be difficult in certain circumstances. So an employer who pays third-country nationals less than other workers (EU workers will not be included in this as they have rights under free movement of workers; we consider this in Chapter 6) may be treating them differently on the basis of nationality, but it could equally be indirect discrimination on the grounds of race.⁸³ It will be for the employer to prove that the discrimination was on the basis of nationality rather than race. The second exception is that of occupational requirements. This is a recognition that certain occupations may require performance by a particular race or ethnicity. The final exception is that of positive discrimination. Guidance is taken from the gender discrimination cases in relation to this aspect and must go no further than necessary to achieve a legitimate aim.

The Race Directive specifies that judicial or administrative remedies must be available where there has been racial discrimination. The directive extends the right to bring a claim in this regard to organizations that have legitimate interest in doing so. However, these organizations cannot bring a claim in their own right; there must be an identifiable claimant on whose behalf they are acting.

The ESC does not contain a specific article in relation to racial discrimination. Instead, it is included in the charter’s general nondiscrimination article, Article E. This establishes that all of the rights set forth in the charter are to be enjoyed without discrimination as to race, color, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth, or other status. However, it goes on to provide that any different treatment must be capable of objective and reasonable justification. Initially, the reference to nondiscrimination was contained only within the preamble to the 1961 Charter. The inclusion of Article E in the Revised Charter of 1996 reflects the prevailing attitudes at the time and the movements within Europe generally to combat discrimination. Discrimination on the grounds of race is prohibited in relation to all of the rights contained within the charter. Ethnic discrimination has been given special consideration primarily as a result of treatment of the Roma community within several European states giving rise to a considerable number of collective complaints to the committee.⁸⁴

Nondiscrimination on Grounds of Religion, Disability, Age, and Sexual Orientation

While the foregoing directives dealt with specific types of discrimination in relation to race and sex, Directive 2000/78 was introduced to create a more general framework of equality. As we have seen in the European Social Charter and the Charter of Fundamental Rights, these issues are grouped together with others and not segregated as they are within the EU. This directive encompasses religion, disability, age, and sexual orientation.

Religion or belief goes beyond organized religions to other philosophical beliefs on major issues such as life, death, and morality not amounting to religion.⁸⁵

Age is not defined in the directive and while the preamble speaks of the elderly and older workers, the court has considered discrimination against young workers under its ambit. Discrimination on the grounds of age may be justified if it is objectively pursuing a legitimate aim.

The concept of disability is not defined in the directive and whether illness counts as a disability is something that the court considered in the case of Chacon Navas.⁸⁶ The claimant here was declared as unfit for work in the short term and was dismissed shortly afterward. She brought proceedings claiming unequal treatment and the CJEU had to determine whether sickness and disability were the same thing for the purpose of the directive. It found that as the legislature had chosen a term different from sickness, the two could not simply be equated and that the provision of reasonable accommodation in the directive was indicative of the fact that it applied to situations that would endure over a long period of time. This does nothing to address the situation when sickness becomes disability. In HK Denmark the court drew on the UN Convention on the Rights of Persons with Disabilities and determined that where an illness (curable or incurable) carries with it a limiting characteristic that would affect effective participation in the workplace, such illness can amount to disability.

The directive sets down the minimum requirements. States may implement more favorable conditions but they cannot rely on the directive to reduce levels of protection. The directive is applicable to all public and private sectors and the state must ensure legislative measures are in place to protect all workers from discrimination under the directive.

A new creation of this directive was the introduction of the concept of reasonable accommodation. This is limited to disabled persons who have the right to reasonable accommodation in the workplace so as to have effective access to employment and training.⁸⁷ This concept was relatively unknown within the EU; only the UK, Ireland, and Sweden, which had existing legislation, recognized this obligation within their national law, and the directive provides virtually no guidance as to what this reasonable accommodation may entail. The general rule is that employers (private and public) must take measures to enable disabled persons to access, participate in, and advance in employment, unless these measures would impose a disproportionate burden on the employer, which has been held to include a reduction in working hours. Essentially, this reasonable accommodation prohibits an employer from denying a disabled person an opportunity in employment that, with appropriate adjustments, they would be able to carry out. This adjustment cannon impose an unreasonable burden on the employer, and what constitutes an unreasonable burden is a matter of fact that is determined on a case-by-case basis.

¹ Case 43/75 Defrenne vs. Sabena (Defrenne No.2) [1976] ECR 455.

² Case 43/75 Defrenne vs. Sabena (Defrenne No.2) [1976] ECR 455 [24].

³ Case 256/01 Allonby [2004] ECR I-873.

⁴ Case 248/83 Commission vs. Germany [1985] ECR I-459.

⁵ Case 1/95 Gerstere [1997] ECR I-5353.

⁶ Case 320/00 Lawrence [2002] ECR I-7325.

⁷ Case 171/88 Rinner-Kuhn [1989] ECR 2743.

⁸ Case 342/93 Gillespie [1996] ECR I-475.

⁹ Case 187/98 Commission vs. Greece [1999] ECR I-7713.

¹⁰ Case 167/97 Seymour-Smith and Perez [1999] ECR I-623.

¹¹ Case 12/81 Garland [1982] ECR 359.

¹² Case 281/97 Kruger [1999] ECR I-5127.

¹³ Case 360/90 Botel [1992] ECR I-3589.

¹⁴ Case 33/89 Kowlaska [1990] ECR I-2591.

¹⁵ Case 249/97 Gruber [1999] ECR I-5295.

¹⁶ Case 33/89 Kowlaska [1990] ECR I-2591.

¹⁷ Case 184/89 Nimz [1991] ECR I-297.

¹⁸ Case 427/11 Kenny [2012] ECR I-2301.

¹⁹ Case 157/86 Murphy [1988] ECR I-673.

²⁰ Watson, P. 2014. EU Social and Employment Law, 2nd ed, 324. London: Oxford University Press.

²¹ Case 96/80 Jenkins Jenkins vs. Kingsgate (Clothing Production) Ltd [1981] ECR 911.

²² 401 U.S 424 (1971)

²³ See Tourkochoriti, I. 2017. “Jenkins v Kingsgate and the Migration of the US Disparate Impact Doctrine in EU Law” In EU Law Stories, ed. F. Nicola and B. Davies. London: Cambridge University Press.

²⁴ Corning Glass Works v Brennan 417 US 188.

²⁵ Ledbetter 43 USSC 2000.

²⁶ McCormick, M. 2012. “Disparate Impact and Equal Protection After Ricci v Destefano” Wisconsin Journal of Law, Gender and Society 27, no. 2, pp. 100–33.

²⁷ Case 80/70 Defrenne vs. Belgium (Defrenne I) [1971] ECR I-445

²⁸ Watson, P. 2014. EU Social and Employment Law, 2nd ed, 356. London: Oxford University Press.

²⁹ Case 286/85 McDermott and Cotter vs. Ireland [1987] ECR 1-453.

³⁰ Case 317/93 Nolte [1995] ECR I-4925.

³¹ Case 410/92 Johnson vs. Chief Adjudication Officer [1994] ECR I-5483.

³² Case 444/93 Megner and Scheffer [1995] ECR I-4741.

³³ Case 382/98 Taylor [1999] ECR I-995.

³⁴ Case 243/90 Smithson [1992] ECR I-467.

³⁵ Case 423/04 Richards [2006] ECR I-3585.

³⁶ Goodwin vs. United Kingdom (1996) 22 EHRR 123.

³⁷ Case 150-85 Drake [1986] ECR I-1995

³⁸ Case 30/85 Teuling Worms [1987] ECR I-2497

³⁹ Case 229/89 Commission vs. Belgium [1991] ECR I-2205.

⁴⁰ Joined Cases 75 and 117/82 Razzouk and Beydoun vs. Commission [1984] ECR I-1509.

⁴¹ Case C-262/88 Barber [1990] ECR I-1889.

⁴² Protocol No 33 TFEU.

⁴³ (2005) 40 EHRR 34.

⁴⁴ (2001) 33 EHRR 14.

⁴⁵ (2001) 33 EHRR 14 [37].

⁴⁶ Kos, M.M. 2014. “The Protection of the Right to Health under the ECHR: Is Imposing Positive Obligations the Way to Go?” Queen Mary Human Rights Review 1, pp. 119–35.

⁴⁷ App No 58453/00 (ECtHR, 25 October 2005) [33].

⁴⁸ App No 30078/06 (ECtHR, 22 March 2012).

⁴⁹ App No 30078/06 (ECtHR, 22 March 2012) [99].

⁵⁰ Case 186/01 Dory [2003] ECR I-2479

⁵¹ Case 273/97 Sindar [1999] ECR I-7403 and Case 285/98 Kreil [2000] ECR I-69.

⁵² Case 79/99 Schnorbus [2000] ECR I-10997.

⁵³ For example see Case 52/02 Rinke [2003] ECR I-8349 where medical training must include periods of full-time training was not discriminatory as it applied to men and women equally.

⁵⁴ Joined Cases 122/99 and 125/99 P and D and Sweden vs. Council [2001] ECR I-4319

⁵⁵ Case 356/09 Kleist [2010] ECR 1-8861.

⁵⁶ Watson, P. 2014. EU Social and Employment Law, 2nd ed, 356. London: Oxford University Press.

⁵⁷ Case 165/82 Commission vs. United Kingdom [1983] ECR 3559.

⁵⁸ Case 222/84 Johnston vs. Chief Constable for the RUC [1986] ECR 1651.

⁵⁹ Case 450/93 Kalanke [1995] ECR I-69.

⁶⁰ Case 409/95 Marshall [1997] ECR I-6363.

⁶¹ Kravaritou, Y. 2012. “Equality Between Men and Woman (Article 23)” In European Labour Law and the EU Charter of Fundamental Rights, 39, ed. B. Bercusson. Brussels: ETUI.

⁶² Kollonay-Lehoczky, C. 2017. “The Right to Equal Opportunities” In The European Social Charter and the Employment Relationship, 366, ed. N. Bruun, K. Lorcher, I. Schomann and S. Clauwaert. Oregan: Hart Publishing.

⁶³ Syndicat national des Professions du Tourisme vs. France Complaint No 6/1999, decision on the merits 10 October 2001.

⁶⁴ Kollonay-Lehoczky, C. 2017. “The Right to Equal Opportunities” In The European Social Charter and the Employment Relationship, 368, ed. N. Bruun, K. Lorcher, I. Schomann and S. Clauwaert. Oregan: Hart Publishing.

⁶⁵ Shaw, M.N. 2014. International Law, 7th ed, 21. Cambridge: Cambridge University Press.

⁶⁶ Alston, P., and R. Goodman. 2013. International Human Rights: The Successor to International Human Rights in Context, 1058. London: Oxford University Press.

⁶⁷ Martinico, G. 2012. “Is the European Convention Going to be Supreme? A Comparative Constitutional Overview of ECHR and EU Law before National Courts” European Journal of International Law 23, pp. 401–24.

⁶⁸ Article 90 of the Grondwet (Basic Law).

⁶⁹ Article 94 “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with provisions of Treaties that are binding on all persons or of resolutions by international institutions.”

⁷⁰ Polakiewicz, J., and V. Jacob-Foltzer. 1991. “The European Human Rights Convention in Domestic Law” Human Rights Law Journal 12, pp. 65–125. See also Cassese, A. 1992. International Law in a Divided World. Oxford: Clarendon Press.

⁷¹ Polakiewicz, J., and V. Jacob-Foltzer. 1991. “The European Human Rights Convention in Domestic Law” Human Rights Law Journal 12, pp. 65–125.

⁷² Alston, P., and R. Goodman. 2013. International Human Rights: the Successor to International Human Rights in Context, 1058. London: Oxford University Press.

⁷³ Byrnes, A., and C. Renshaw. 2014. “Within the State” In International Human Rights Law, 464, eds. D. Meockli, S. Shah and S. Sivakumaran. London: Oxford University Press.

⁷⁴ Hogan, G. 2014. “The Constitution and the Convention” In Ireland and the ECHR: 60 Years and Beyond, 75, eds. S. Egan, L. Thornton and J. Walsh. Dublin: Bloomsbury.

⁷⁵ Article 29.6 “No international agreement shall be part of the domestic law of the State save as may be determined by the Oireachtas.”

⁷⁶ Article 29.3.

⁷⁷ Article 15.2.1 “The sole and exclusive power of making laws in the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.”

⁷⁸ [1986] OJ C158/1.

⁷⁹ European Union: Council of the European Union, Treaty of Amsterdam Amending the Treaty on the European Union, The Treaties Establishing the European Communities and Related Acts, 10 November 1997.

⁸⁰ Watson, P. 2014. EU Social and Employment Law, 2nd ed, 402. London: Oxford University Press.

⁸¹ Case 327/04 Commission vs. Finland Judgment 24 February 2005; Case 329/04 Commission vs. Germany Judgment 28 April 2005; Case 320/04 Commission vs. Luxembourg Judgment 9 December 2004; Case 335/04 Commission vs. Austria Judgment 4 May 2005.

⁸² Case 394/11 Belov Judgment 31 January 2012.

⁸³ Bell, M. 2002. “Beyond European Labour Law? Reflections on EU Equality Directive” European Journal of Law 8, no. 3, pp. 385–99.

⁸⁴ Kollonay-Lehoczky, C. 2017. “The Right to Equal Opportunities” In The European Social Charter and the Employment Relationship, 500. eds. N. Bruun, K. Lorcher, I. Schomann and S. Clauwaert. Oregan: Hart Publishing.

⁸⁵ Ellis, E., and P. Watson. 2012. EU Anti-Discrimination Law, 2nd ed, 36. London: Oxford University Press.

⁸⁶ Case 13/05 Chacon Navas [2006] ECR I-6467.

⁸⁷ Watson, P. 2014. EU Social and Employment Law, 2nd ed, 423. London: Oxford University Press.