More equal than others: Distinguishing European Union equality directives

Common Market Law Review

Volumn 38, Issue 3, 2001, Pages 587-611

  Waddington, Lisa ^a   Bell, Mark ^b  

^a MAASTRICHT UNIVERSITY   (Netherlands)

^b UNIVERSITY OF LEICESTER   (United Kingdom)

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EID: 26444434961     PISSN: 01650750     EISSN: 18758320     Source Type: Journal    
DOI: 10.1023/A:1010629721933     Document Type: Article

References (110)

1. 1. For reasons of space, this article will not include an analysis of Community law on nationality discrimination.
2. 2. But note that case law has also extended protection from employment discrimination under the Equal Treatment Directive to cover transsexuals. See Case C-13/94, P. v. S. and Cornwall County Council, [1996] ECR I-2143.
3. 3. See Art. 141 EC and Directive 75/117/EEC on Equal Pay for Men and Women, O.J. 1975, L 45/19.
4. 4. See Directive 76/207/EEC on Equal Treatment for Men and Women as regards access to Employment, Vocational Training and Promotion, and Working Conditions, O.J. 1976, L 39/40 and Directive 86/613/EEC on Equal Treatment between Men and Women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood, O.J. 1986, L 359/56.
5. 5. See Directive 79/7/EEC on Equal Treatment for Men and Women in matters of Social Security, O.J. 1979, L6/24 and Directive 86/378/EEC on Equal Treatment for Men and Women in Occupational Social Security Schemes, O.J. 1986, L 225/40 as amended by Directive 96/97, O.J. 1997, L 46/20. In addition, directives have been adopted to protect women during pregnancy and the early period of motherhood. See Directive 86/813/EEC above and Directive 92/85/EEC on the Safety and Health at Work of Pregnant Workers and Workers who have recently given birth or are breastfeeding, O.J. 1992, L 348/1.
6. 6. See note 3 supra.
7. 7. Directive 97/80/EC on the Burden of Proof in cases of Discrimination based on Sex, O.J. 1998, L 14/6.
8. 8. Directive 2000/43/EC implementing the principle of Equal Treatment between persons irrespective of racial or ethnic origin, O.J. 200, L 180/22.
9. 9. Directive 2000/78/EC establishing a general framework for Equal Treatment in employment and occupation, O.J. 2000, L 303/16.
10. 10. For further discussion on this Article, see Waddington, “Testing the Limits of the EC Treaty Article on Non-discrimination”, 28 Industrial Law Journal (1999), 133–151 and Bell, “The new Article 13 EC Treaty: a sound basis for European anti-discrimination law?” 6 MJ (1999), 5–23.
11. 11. Proposal for a Directive amending Council Directive 76/207/EEC (COM (2000) 334 final, 7 June 2000).
12. 12. Art. 141 and Directive 75/117/EEC.
13. 13. Directive 76/207/EEC.
14. 14. Directives 79/7/EEC and 86/378/EEC.
15. 15. Directive 86/613/EEC.
16. 16. Art. 3(1)(a).
17. 17. See note 4 supra.
18. 18. Art. 3.
19. 19. Art. 3(1)(b).
20. 20. Art. 4.
21. 21. Art.3(1)(c).
22. 22. Arts. 1 and 5.
23. 23. Art. 3(1)(d).
24. 24. Art. 4.
25. 25. Arts. 3(1)(e)-(h).
26. 26. These provisions are also included in Art. 2(1) of the new Directives.
27. 27. Under the Burden of Proof Directive (97/80/EC).
28. 28. Case 43/75, Defrenne v. Sabena, [1976] ECR 455.
29. 29. Para. 10. In this judgment the Court also gave a confusing definition of “indirect and disguised discrimination”, stating that such discrimination could only be identified with the aid of more detailed implementing provisions adopted at either the Community or the national level. However, in subsequent cases the Court produced a more conventional definition of indirect discrimination (see below).
30. 30. Case C-177/88, Dekker v. Stichting Vormingscentrum voor Jong Volwassenen, [1990] ECR I-3941, para 10.
31. 31. Case 129/80,MacCarthys Ltd. v. Smith, [1980] ECR 1275.
32. 32. MacCarthys, cited supra. Case C-200/91, Coloroll v. Russel, [1994] ECR I-4389.
33. 33. Case 96/80, Jenkins v. Kingsgate (Clothing Production) Ltd, [1981] ECR 911.
34. 34. Case 170/84, Bilka-Kaufhaus. v. Weber von Hartz, [1986] ECR 1607.
35. 35. The earlier Jenkins judgment was ambiguous in that it was unclear whether it was sufficient for the employer to show that there was no intention to discriminate or whether the employer should go further and give an objective justification for the pay policy for the measure to be regarded as compatible with the Directive.
36. 36. See para 36 of the Bilka case.
37. 37. Case 171/88, Rinner-Kϋhn, [1989] ECR 2743.
38. 38. But note that recent case law, and specifically Case C-167/97, R. v. Secretary of State for Employment, ex parte Seymour-Smith, [1999] ECR I-623, have suggested a weakening of the strict justification test applied in Rinner-Kϋhn. For more detailed comment see Barnard and Hepple, “Indirect discrimination: interpreting Seymour-Smith”, 58 CLJ (1999), 399–412.
39. 39. The proposed amendment to the Equal Treatment Directive incorporates this definition in the aforementioned Directive.
40. 40. See Seymour-Smith, cited supra note 38, in which the European Court held: “… the national court must verify whether the statistics available indicate that a considerably smaller percentage of women than men is able to fulfil the requirement impose by that measure” (para 65). For criticism of this judgment see Barnard and Hepple, op. cit. supra note 38.
41. 41. Speaking on the Race Directive definition. See Oral Evidence to the House of Lords, Select Committee on the European Union, “EU Proposals to Combat Discrimination”, Session 1999–2000, 9th Report, 25.
42. 42. Recital 15 of the Race Directive and Recital 16 of the Framework Employment Directive.
43. 43. Art. 2(b). The obligation to make a reasonable accommodation for people with a disability is discussed in more detail below.
44. 44. O. J. 1992, L 49/1.
45. 45. Commission (1996) “Consultation of management and labour on the prevention of sexual harassment at work”, COM (96) 373, 24 July 1996.
46. 46. Art. 2(3) Race Directive; a similar provision is found in Art. 2(3) of the Framework Employment Directive.
47. 47. Art. 1(2).
48. 48. In addition to the grounds mentioned below, the Equal Treatment Directive allows for provisions “concerning the protection of women, particularly as regards pregnancy and maternity” (Art. 2(4)). For reasons of space this provision is not examined in this article. For commentary on this provision, see Barnard, EC Employment Law, 2nd ed. (Oxford, Oxford EC Law Library, 2000), pp. 242–244.
49. 49. Art. 5.
50. 50. See the United Kingdom’s Disability Discrimination Act 1995, Ireland’s Employment Equality Act 1998 and Sweden’s Law Prohibiting Discrimination in Working Life on Grounds of Disability 1999.
51. 51. The grounds covered under Canadian law include, inter alia, those mentioned in Art. 13 EC.
52. 52. Directive 92/85 on the Safety and Health at Work of Pregnant Workers and Workers who have recently given birth or are breastfeeding, O.J. 1992, L 348/1.
53. 53. In Art. 2(2). The other two exceptions concern the protection of women, particularly as regards pregnancy and maternity and positive action (see below).
54. 54. Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary, [1986] ECR 1651, para 38.
55. 55. Art. 4.
56. 56. Art. 4(1).
57. 57. However, the term “occupational activities” found in the newer Directives could almost certainly be interpreted to cover vocational training.
58. 58. Art. 6.
59. 59. “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
60. 60. E.g. Belgian Linguistic Case (No. 2) (1979–80), 1 European Human Rights Reports, 252 at para 32. See further, Dixon, “Freedom of discrimination in respect of Convention rights” in Lester and Pannick (Eds.), Human rights law and practice (Butterworths, 1999), p. 225 et seq.
61. 61. See, inter alia, Christian Institute, European threat to religious freedom – a response to the European Union’s proposed employment directive (Christian Institute, 2000).
62. 62. A strict quota of 50% Catholic recruitment has been established for the future Police Service of Northern Ireland; s. 46, Police (Northern Ireland) Act 2000.
63. 63. For an overview, see Mancini and O’Leary “The new frontiers of sex equality law in the European Union”, 24 EL Rev. (1999), 331–353.
64. 64. C-450/93, Kalanke v. Freie Hansestadt Bremen, [1995] ECR I-3069; C-409/97, Marschall v. Land Nordrhein-Westfalen, [1997] ECR I-6363; C-158/97, Badeck v. Hessischer Ministerpräsident, Judgment of 28 March 2000, nyr; C-407/98, Abrahamsson and Anderson v. Fogelqvist, Judgment of 6 July 2000, nyr.
65. 65. Kalanke, ibid. p. 3078.
66. 66. Abrahamsson, cited supra note 64.
67. 67. Badeck, paras. 55 and 63.
68. 68. Marschall, para. 35.
69. 69. COM (2000) 334, p. 16.
70. 70. Ibid.
71. 71. “With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to any of the discriminatory grounds referred to in Art. 1.”
72. 72. For example, this is permitted under s. 37 and s. 38 of the British Race Relations Act 1976.
73. 73. For further information see Waddington, “Reassessing the employment of people with disabilities in Europe: From quotas to anti-discrimination laws”, 18 Comparative Labor Law Review (1996), 62–101.
74. 74. EU Council (2000) “Outcome of proceedings of the Working Party on Social Questions of 14 and 28 March 2000”, 6941/00, Brussels, 31 March 2000, at pp. 5–6.
75. 75. Specifically Art. 7 of the Wet op de (re)integratie arbeidsgehandicapten. See Wadding-ton, “Tweede-generatie richtlijnen Gelijke Behandeling: de nieuwe Richtlijn inzake gelijke behandeling ongeacht ras of etnische afstamming en de Kaderrichtlijn gelijke behandeling in arbeid en beroep”, 12 Sociaal Recht2000, 357–362.
76. 76. See e.g. Directive 89/391/EEC on the Introduction of Measures to Encourage Improvements in the Safety and Health of Workers at Work, O.J. 1989, L 183/1, Art. 15.
77. 77. For a consideration of this problem from a British perspective see J. Davies and W. Davies, “Reconciling Risk and the Employment of Disabled Persons in a Reformed Welfare State”, 29 Industrial Law Journal (2000), 347–377.
78. 78. Art. 9.
79. 79. Art. 11.
80. 80. Case C-185/97, Coote v. Granada Hospitality Ltd, [1998] ECR I-5199.
81. 81. Para 27.
82. 82. Para 24.
83. 83. Council Directive 97/80.
84. 84. C-109/88, Handels- og Kontorfunktionaerernes forbund i Danmark v. Danfoss, [1989] ECR 3199, C-127/92, Enderby v. Frenchay Health Authority and Secretary of State for Health, [1993] ECR I-5535.
85. 85. Art. 4(1).
86. 86. Art. 4(2).
87. 87. Art. 4(3).
88. 88. Art. 3(2).
89. 89. Art. 8, Race Directive; Art. 10, Framework Employment Directive.
90. 90. Art. 3(1).
91. 91. Art. 3(1)(e), Race Directive.
92. 92. States which have relied on criminal law sanctions for racial discrimination include Spain, France, and Luxembourg. See further, Wrench, Preventing Racism at the Workplace – a report on 16 European countries, Report to the European Foundation for the Improvement of Living and Working Conditions. (OOPEC, 1996).
93. 93. Although one exception to this assertion is in relation to migrants who can lack the relevant or reliable documentation. E.g. Case C-102/98 and 211/98, Kocak v. Landesversicher-ungsanstalt Oberfranken und Mittelfranken; Örs v. Bundesknappschaft, Judgment of 14 March 2000, nyr.
94. 94. See further, Goodwin v. The Patent Office, [1999] IRLR 4.
95. 95. See further e.g. Sutton v. United Air Lines, Inc., 527 U.S., 119 S. Ct. 2139 (1999).
96. 96. See generally Blom, Fitzpatrick, Gregory, Knegt & O’Hare, The Utilization of Sex Equality Litigation in the Member States of the European Community, V/782/96-EN (Report to the Equal Opportunities Unit of DG V, 1995), especially pp. 58–59.
97. 97. This model is already present in several Member States’ national anti-discrimination laws, including the Netherlands, France, Belgium and Luxembourg.
98. 98. This is to be determined “in accordance with criteria laid down by their national law”.
99. 99. Art. 7(2), Race Directive; Art. 9(2), Framework Employment Directive. 100. COM (2000) 334, Art. 1(6).
100. 101. Art. 13(1).
101. 102. Art. 13(2).
102. 103. Emphasis added, Art. 1(6).
103. 104. Recital 14, Race Directive; Recital 3, Framework Employment Directive.
104. 105. E.g. Case C-271/91, Marshall v. Southampton and South-West Hampshire Area Health Authority, [1993] ECR I-4367; C-180/95, Draehmpaehl v. Urania Immobilienservice, [1997] ECR I-2195.
105. 106. Art. 15, Race Directive; Art. 17, Framework Employment Directive.
106. 107. Art. 1(6).
107. 108. Cited supra note 105.
108. 109. E.g. Recital 5 of Council Decision of 27 Nov. 2000 establishing a Community action programme to combat discrimination (2001 to 2006), O.J. 2000, L 303/23: “the different forms of discrimination cannot be ranked: all are equally intolerable.”
109. 110. Commission (2000) “Social Policy Agenda” COM (2000) 379, par. 4.2.3.2.
110. 111. The exception for Northern Ireland in Art. 15 is the most transparent example of this.