2. Discrimination categories

Handbook on European non-discrimination lawContents

EU Issues covered CoE
Racial Equality Directive (2000/43/EC), Art. 2 (2) (a) Direct discrimination ECHR, Art. 14 (prohibition of discrimination)

ESC, Art. E (non-discrimination) ECtHR, Guberina v. Croatia, No. 23682/13, 2016

ECSR, CGIL v. Italy, Complaint No. 91/2013, 2015

ECtHR, Burden v. the United Kingdom [GC], No. 13378/05, 2008

Employment Equality Directive (2000/78/EC), Art. 2 (2) (a)
Gender Equality Directive (recast) (2006/54/EC), Art. 2 (1) (a)
Gender Goods and Services Directive (2004/113/EC), Art. 4 (1) (a)
CJEU, C-356/12, Glatzel v. Freistaat Bayern, 2014
CJEU, C-267/12, Hay v. Crédit agricole mutuel, 2013
CJEU, C-303/06, Coleman v. Attridge Law and Steve Law [GC], 2008
CJEU, C-267/06, Maruko v. Versorgungsanstalt der deutschen Bühnen [GC], 2008
CJEU, C-423/04, Richards v. Secretary of State for Work and Pensions, 2006
CJEU, C-256/01, Allonby v. Accrington and Rossendale College, 2004
CJEU, C-13/94, P v. S and Cornwall County Council, 1996
Racial Equality Directive (2000/43/EC), Art. 2 (2) (b)

Employment Equality Directive (2000/78/EC), Art. 2 (2) (b)

Gender Equality Directive (recast) (2006/54/EC), Art. 2 (1) (b)

Gender Goods and Services Directive (2004/113/EC), Art. 4 (1) (b)

CJEU, C-83/14, “CHEZ

Razpredelenie  Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 2015

CJEU, C-385/11, Elbal Moreno v. INSS and TGSS, 2012

CJEU, C-152/11, Odar v. Baxter

Deutschland GmbH, 2012

Indirect discrimination ECHR, Art. 14 (prohibition of discrimination)

ESC, Art. E (non-discrimination)

ECSR, AEH v. France, Complaint No. 81/2012, 2013

ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 2007

CJEU, C-443/15, Parris v. Trinity College Dublin and Others, 2016. Multiple and intersectional discrimination ECtHR, Carvalho Pinto de Sousa Morais v. Portugal, No. 17484/15, 2017

ECtHR, S.A.S. v. France [GC], No. 43835/11, 2014

ECtHR, B.S. v. Spain, No. 47159/08, 2012.

Racial Equality Directive (2000/43/EC), Art. 2 (3) and (4)

Employment Equality Directive (2000/78/EC), Art. 2 (3) and (4)

Gender Goods and Services Directive (2004/113/EC), Art. 4 (3) and (4)

Gender Equality Directive (recast) (2006/54/EC), Art. 2 (2) (a) and (b)

Harassment and instruction to discriminate ECHR, Art. 2 (right to life), Art. 3 (prohibition of torture), Art. 9 (freedom of religion), Art. 11 (freedom of assembly and association), Art. 14 (prohibition of discrimination)

ESC, Art. E (non-discrimination), Art. 26 (The right to dignity at work)

ECtHR, Đorđević v. Croatia, No. 41526/10, 2012

ECtHR, Catan and Others v. the Republic of Moldova and Russia [GC], Nos. 43370/04, 18454/06 and 8252/05, 2012

Charter of Fundamental Rights, Art. 23 (men and women),

Art. 24 (children), Art. 25 (the elderly), Art. 26 (Persons with

disabilities)

Specific measures ECHR, Art. 14 (prohibition of discrimination), Protocol No. 12, Art. 1 (General prohibition of discrimination)

ESC (Revised), Art. E

ECtHR, Çam v. Turkey, No. 51500/08, 2016

ECtHR, Horváth and Kiss v. Hungary, No. 11146/11, 2013

ECSR, The Central Association of Carers in Finland v. Finland, No. 71/2011, 2012

Racial Equality

Directive (2000/43/EC), Art. 5

Employment Equality Directive

(2000/78/EC), Art. 7

Gender Equality Directive

(recast) (2006/54/EC), Art. 3

Gender Goods and Services

Directive (2004/113/EC), Art. 6

European Parliament resolution on strengthening the fight against racism, xenophobia and

hate crime (2013/2543(RSP))

CJEU, C-173/13, Leone and Leone v. Garde des Sceaux, ministre de la Justice and Others, 17 July 2014
CJEU, C-407/98, Abrahamsson and Anderson v. Fogelqvist, 6 July 2000
CJEU, C-409/95, Marschall v. Land Nordrhein-Westfalen, 1997
CJEU, C-450/93, Kalanke v. Freie Hansestadt Bremen, 1995
European Parliament resolution on strengthening the fight against racism, xenophobia and hate crime (2013/2543(RSP))

Council Framework Decision on racism and xenophobia (2008/913/JHA)

Victims’ Rights Directive (2012/29/EU)

Hate crime / Hate speech ECtHR, Škorjanec v. Croatia, 25536/14, 2017

ECtHR, Halime Kiliç v. Turkey, No. 63034/11, 2016

ECtHR, Identoba and Others v. Georgia, No. 73235/12, 2015

ECtHR, M’Bala M’Bala v. France

(dec.), No. 25239/13, 2015

ECtHR, Delfi AS v. Estonia [GC], No. 64569/09, 2015

ECtHR, Perinçek v. Switzerland [GC], No. 27510/08, 2015
ECtHR, Virabyan v. Armenia, No. 40094/05, 2012

Key point

  • Discrimination defines a situation where an individual is disadvantaged in some way on the basis of ‘one or multiple protected grounds’.

Non-discrimination law aims to allow all individuals an equal and fair prospect to access opportunities available in a society. We make choices on a daily basis over issues such as whom we socialise with, where we shop and where we work. We prefer certain things and certain people over others. While expressing our subjective preferences is commonplace and normal, at times we may exercise functions that place us in a position of authority or allow us to take decisions that may have a direct impact on others’ lives. We may be civil servants, shopkeepers, employers, landlords or doctors who decide over how public powers are used, or how private goods and services are offered. In these non-personal contexts, non-discrimination law intervenes in the choices we make in two ways.

First, it stipulates that those individuals who are in similar situations should receive similar treatment and not be treated less favourably simply because of a particular ‘protected’ characteristic that they possess (‘direct’ discrimination). Second, in some situations treatment based on a seemingly neutral rule can also amount to discrimination, if it disadvantages a person or a group of persons as a result of their particular characteristic (‘indirect’ discrimination).

The non-discrimination principle prohibits scenarios where persons or groups of people in an identical situation are treated differently, and where persons or groups of people in different situations are treated

This chapter discusses in greater depth the meaning of direct and indirect discrimination, some of their specific manifestations, such as multiple discrimination, harassment or instruction to discriminate, hate crime and hate speech and how they operate in practice through case law. It will then examine how the justification test operates.

Contents

2. Discrimination categories

2.1. Direct discrimination

2.2. Indirect discrimination

2.3. Multiple and intersectional discrimination

2.4. Harassment and instruction to discriminate

2.5. Special or specific measures

2.6. Hate crime

2.7. Hate speech

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