Direct discrimination harassment and instruction to discriminate Barry
Direct discrimination, harassment and instruction to discriminate Barry Fitzpatrick Equality Law Consultant www. barryfitzpatrickconsulting. co. uk 15 May 2006 1
EU Directives Ø Ø EU law has covered sex equality law since the Treaty of Rome 1957 (equal pay for women and men) and equal treatment in working conditions (Equal Treatment Directive 1976) in 2000, the EU passed the Race and Ethnic Origin Directive (REOD) applying a ‘modernised’ version of EU sex equality law to discrimination on grounds of racial and ethnic origin 2
EU Directives Ø Ø Ø note that the REOD applies not just to employment & training but also to provision of services, education, housing, social protection etc later in 2000, the EU passed the Framework Employment Equality Directive (FEED), covering religion or belief, sexual orientation, disability and age but only in the field of employment & training – covers self-employment, professional associations and trade unions 3
EU Directives Ø Ø EU Directives do not make enforceable law when originally passed they require each MS to pass its own national law to transpose the Directive, in accordance with its own traditions, by a deadline set out in the Directive, largely 2003 for both the REOD and the FEED but with possible extension to 2006 for disability & age 4
EU Directives Ø Ø Ø BUT MSs cannot, in transposing the Directive, fall below the minimum standards of the Directive nor can they reduce the previous level of protection from discrimination (nonregression) and they are free to apply higher standards than the those in the Directive 5
EU Directives Ø Ø Ø if the MS fails to transpose the Directive at all or inadequately, the European Commission can take them to the European Court of Justice BUT Directives, if precisely worded, can be direct enforced (‘direct effect’) against State bodies AND all courts, whether in public or private cases, must interpret national law as much as possible in conformity with the terms of the Directive 6
EU Directives Ø Ø in Case C-144/04, Mangold (judgment of 22 November 2005), the ECJ has concluded that the principle of nondiscrimination on grounds of age (& therefore disability) reflects a general principle of EC law although the FEED must be transposed by Dec 2006, MSs cannot introduce measures which conflict with the nondiscrimination principle, even before this date 7
EU Directives Ø Ø national courts must set aside a law which contravenes the nondiscrimination principle, even in a case involving a private employer finally, it is also well-established that, if a MS fails to transpose a directive by the required date, or does so in a totally inadequate fashion, individuals can bring a damages action against the MS 8
EU Directives Ø Ø rights-based approach – disability is treated like other grounds in that discrimination is prohibited – this can be direct, where there is reliance on disability in a policy or practice, or indirect, where the policy or practice appears to ‘disability neutral’ but has discriminatory effects disability is treated differently in that disabled people must be ‘reasonably accommodated’ by employers and providers of training 9
Legal concepts Ø Ø Ø Ø Ø legal concepts in Framework Directive direct discrimination genuine occupational requirements burden of proof harassment indirect discrimination reasonable accommodation positive action victimisation 10
Direct discrimination Ø Ø Ø direct discrimination is unlawful reliance on a prohibited factor, eg race, sex, religion, sexual orientation, age or disability you must be treated less favourably than someone else in a comparable situation it is presumed that the FEED only protects disabled people (and not nondisabled people) but this is not clear from its wording (cp UK disability law) 11
Direct discrimination Ø Art 2(2)(a) REOD/FEED: direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1 [including disability] 12
Equality grounds Ø Ø significant issues on all REOD & FEED grounds what are the limits of ‘racial & ethnic origin’? what are the limits of ‘religion or belief’? what are the limits of ‘sexual orientation’? 13
Equality grounds Ø Ø Ø what is ‘disability’? many MSs have not defined ‘disability’ in their transposition legislation UK DDA section 1. —(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. 14
Equality grounds Ø Ø Ø Case C-13/05 Chacón Navas: a Spanish worker is dismissed for being ‘sick’ ‘disability’ has grown out of a medicalscientific model to include social or environmental factors the distinction between ‘illness’ and ‘disability’ is the degree of permanence – illness may develop into disability but dismissal on grounds of illness is not protected by the FEED 15
Direct discrimination Ø A disabled employee is recently recruited to a firm as a wages clerk. It has been custom and practice in the firm that new clerks “work shadow” another clerk for a 2 week period as part of their induction programme. The new employee’s manager is angry that a disabled worker has been appointed to the post and, because of this, decides not to allow the new recruit to “work shadow” for 2 weeks. 16
Direct discrimination Ø Ø A disabled applicant A applies to an organisation for a job. The organisation contacts her former manager and asks for a reference. Her former manager B refuses to recommend the applicant for the job stating she did not ‘fit in’. note ‘burden of proof’ shifts to employer once strongly arguable case of discrimination made 17
Direct discrimination Ø A company X seeks to recruit a receptionist. A has a facial scar. This is not apparent until her interview. Despite performing this role in other companies, she is not appointed by X. 18
Direct discrimination Ø Ø A has a single epileptic fit. He is a forklift driver. X decides that it cannot trust having a ‘health risk’ on the premises. He is dismissed. dismissal is sufficiently linked to his disability to be ‘on grounds of disability’ 19
Direct discrimination Ø Ø Ø ‘on grounds of disability’ can be ‘perceived’ disability and can be ‘association with disability’ ought to find a comparator who is not disabled or has a different disability but also how another person ‘would have been treated’ ie can ‘create’ a hypothetical comparator 20
Direct discrimination Ø Ø Ø A is not employed because she has a hearing aid - X presumes that she will not be able to participate in meetings B is not allowed to attend X’s training sessions even though she is A’s personal attendant C is not employed because he appears to have learning difficulties – he is presumed not to competent to do the job 21
Exceptions Ø Ø particularly in relation to DD, it is difficult to provide a justification the main exception in the FEED is a ‘genuine occupational requirement’, ie that it is essential that a person be disabled (or not disabled? ) to perform a particular job 22
Exceptions Ø Ø genuine occupational requirement: Art 4(1) REOD/FEED: “Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination 23
Exceptions Ø where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. ” 24
Exceptions Ø A disability organisation decides to recruit a part-time counsellor whose primary role is to provide a counselling service to disabled people. In its advert, the organisation indicates that the successful candidate must be disabled. 25
Exceptions Ø The organisation seeks to rely on a GOR exception in relation to the post. It states that there is an identifiable need for the counsellor to be disabled. They claim that due to its size and resources it has no other employees who are disabled who are capable of carrying out the counselling duties in question. 26
Burden of proof Ø Ø it is typical in civil cases for the complainant to have to prove the entire case, often ‘on the balance of probabilities’ the FEED allows for a ‘reversal’ of the burden of proof once a sufficiently strong case (some times called a prima facie case), can be made out by the complainant 27
Burden of proof Ø Ø Ø does not apply to criminal proceedings or where the court investigates the facts of the case earlier example of refusing to give a reference because A ‘did not fit in’ if no other obvious reason than X’s disability, burden will shift to B to prove that disability was not reason for refusing reference 28
Harassment Ø Ø Ø harassment means making a person’s life so uncomfortable that he or she cannot be expected to accept this any longer it involves relatively serious behaviour against the disabled person amounting to a violation of dignity and the creation of an unacceptable environment 29
Harassment Ø Art 2(3) REOD/FEED: Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment 30
Harassment Ø Ø Ø ‘violation of dignity’: physical harassment abuse/use of expletives ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ series of events line between ‘banter’ and impermissible conduct 31
Harassment Ø Ø Ø purpose or effect if purpose, harassment established if effect, balance to be struck between disabled person’s perception of harassment, which must be the predominant perspective, and an objective view as to whether conduct should be considered harassment 32
Harassment Ø A’s colleagues constantly shout loudly at him because they know he is hard of hearing. Comments are made about his inability to ‘follow simple instructions’. Colleagues of A constantly speak softly at team meetings although they know he is hard of hearing 33
Harassment Ø There is frequently ‘horseplay’ between male workers during breaks. A, who is partially sighted, is knocked over more frequently than other workers. Everyone seems to enjoy the ‘fun’. A even shows off his bruises to other workers. 34
Instruction to discriminate Ø Article 2. 4: An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1. 35
Instruction to discriminate Ø Ø Company X contracts a recruitment agency to provide it with candidates for secretarial jobs. It states that no blind candidates are to be provided. This is probably direct discrimination in arrangements for recruitment but is also instruction to discriminate. 36
Practical implications Ø Ø amendment of equal opportunities and harassment policies training of those involved in recruitment, promotion, disciplinary matters to avoid stereotypical thinking also awareness training for all employees creation of ‘harmonious’ working environment 37
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