2.1. Direct discrimination

Handbook on European non-discrimination lawContents

Key points

  • Direct discrimination is when a person is treated less favourably on the basis of ‘protected grounds’.
  • Less favourable treatment is determined through a comparison between the alleged victim and another person, who does not possess the protected characteristic, in a similar situation. The European and national courts have accepted the notion of discrimination by association, where an individual is treated less favourably because of their association with another individual who possesses a ‘protected characteristic’.

Direct discrimination is defined similarly under the ECHR and EU law. Under EU law, Article 2 (2) of the EU Racial Equality Directive states that direct discrimination is ‘taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin’.[79] Under the ECHR, the ECtHR uses the formulation that there must be a ‘difference in the treatment of persons in analogous, or relevantly similar, situations’, which is ‘based on an identifiable characteristic’.[80]

Direct discrimination will have occurred when:
– an individual is treated less favourably;
– by comparison to how others, who are in a similar situation, have been or would be treated;
– and the reason for this is a particular characteristic they hold, which falls under a ‘protected ground’.

Procedurally, under the ECHR, an applicant must be able to show that he or she was “directly affected” by the measure com- plained of, in order to be able to lodge an application (victim status).[81]

Under EU law, unlike the ECHR, direct discrimination can be established, even if there is no identifiable complainant claiming to have been a victim of such discrimination. In the Feryn case,[82] the CJEU found that an employer which declares publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of the Racial Equality Directive (2000/43), since such statements are likely to strongly dissuade candidates from submitting their applications and hinder their access to the labour market.

2.1.1. Less favourable treatment

At the heart of direct discrimination is the less favourable treatment that an individual is subject to. This can be relatively easy to identify compared with indirect discrimination, where statistical data is often needed (see below). Here are examples taken from cases that are referred to in this Handbook: refusal of entry to a restaurant or shop, receiving a smaller pension or lower pay, being subject to verbal abuse or violence, being refused entry at a checkpoint, having a higher or lower retirement age, being barred from a particular profession, not being able to claim inheritance rights, being excluded from the mainstream education system, being deported, not being permitted to wear religious symbols, being refused or revoked social security payments. Consequently, the first feature of direct discrimination is evidence of the difference of treatment. Direct discrimination can also arise from treating two people in different situations in the same way. The ECtHR has stated that ‘the right not to be discriminated against in the enjoyment of the rights guaranteed under the ECHR is also violated when States […] fail to treat differently persons whose situations are significantly different’.[83]

2.1.2. A comparator

Less favourable treatment can be established by making the comparison to someone in a similar situation. A complaint about ‘low’ pay is not a claim of discrimination unless it can be shown that the pay is lower than that of someone hired by the same employer to perform a similar task. Therefore, to determine whether a person was treated less favourably, it is necessary to identify a suitable ‘comparator’: that is, a person in materially similar circumstances, with the main difference between the two persons being the ‘protected ground’. Proving a comparator does not need to be contentious, and discrimination may be established without an explicit discussion in this regard. Below are some examples of cases where proving the comparator was expressly raised as an issue by the deciding body.

Under EU law, in a number of cases the CJEU examined in detail whether two groups could be considered as comparable.

Example: In Wolfgang Glatzel v. Freistaat Bayern,[84] the applicant was refused a driving licence for heavy goods vehicles because of insufficient visual acuity in one of his eyes. Contrary to other categories of drivers, he did not have a possibility to obtain a driving licence in ‘exceptional cases’, after additional examinations confirming his ability to drive.

The CJEU found that the situation of both categories of drivers was not comparable. In particular, the two categories differed by the size of the vehicle driven, the number of passengers carried and the responsibilities which accordingly result from driving such vehicles. The characteristics of the vehicles concerned justified the existence of different conditions for different categories of driving licence. Consequently, a difference in treatment was justified and did not infringe the right to ‘equality before the law’ under Article 20 of the EU Charter of Fundamental Rights.

Example: In P v. S and Cornwall County Council,[85] the complainant was undergoing gender reassignment from male to female when she was dismissed by her employer. The CJEU found that the dismissal constituted unfavourable treatment. As to the relevant comparator, the CJEU stated that ‘where a person is dismissed on the ground that he or she intends to undergo, or has undergone, gender reassignment, he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment’. As to the grounds, although it could not be shown that the complainant was treated differently because he was a man or a woman, it could be shown that the differential treatment related to the concept of her sex.

Example: The case Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres[86] concerns marriage benefits for same-sex partners. At the time of the dispute, marriage for same-sex couples was not possible in France, but registered civil partnership existed for both hetero- and homosexual couples. The claimant was employed by a bank that offered special benefits to employees on occasion of their marriage. The claimant applied for these benefits after he entered into a same-sex civil partnership, but the bank refused. The CJEU had to determine whether such a difference in treatment amounted to discrimination based on sexual orientation. The CJEU reaffirmed that while situations do not have to be identical, but only comparable, the comparability must be assessed in the light of the benefit concerned, and not in a global and abstract manner. The CJEU established that persons of the same sex who cannot marry and therefore conclude a civil partnership are in a situation comparable to that of married couples. The CJEU explained that although the difference in treatment is based on the employees’ marital status and not expressly on their sexual orientation, it constitutes direct discrimination on the grounds of sexual orientation. Homosexual employees were unable to marry and consequently meet the condition required for obtaining the benefit claimed.

Under EU law, proving comparability in cases concerning equal pay involves establishing whether the work performed by a female worker is ‘equal’, or of ‘equal value’, to work performed by a male worker, and whether there are differences in the salary received by male and female workers. In this regard, the CJEU did not accept a comparison across companies.

Example: In Allonby v. Accrington and Rossendale College,[87] a female lecturer complained about different pay conditions under different employment contracts. The college where the complainant was initially employed as a lecturer did not renew her contract. She was later employed by a company that subcontracted lecturers to educational establishments, and deployed at her old college, performing the same duties as before, but for a lower salary. She alleged discrimination on the basis of sex, saying that male lecturers working for the college were paid more. As the difference in pay could not

be attributed to ‘single source’ (the same employer), the CJEU held that male lecturers employed by the college were not in a comparable situation to the complainant, who was employed by an external company.

An apparent exception for finding a suitable ‘comparator’, at least within the scope of employment, is where the discrimination suffered is due to pregnancy. It is well established case law of the CJEU, that where the detriment suffered by a woman is due to pregnancy, then it constitutes direct discrimination based on sex, there being no need for a comparator.[88] The same applies in situations when discrimination is related to maternity leave[89] or undergoing in vitro fertilisation treatment.[90]

Under the ECHR, the ECtHR stressed that two groups of people may be considered as being in an analogous situation for the purpose of one particular complaint but not another. For example, married and unmarried couples can be regarded as not being in a comparable situation in the fields of taxation, social security or social policy. In contrast, married and unmarried partners who had an established family life have been found to be in a comparable situation as regards the possibility to maintain contact by telephone while one of them was in custody.[91] Consequently, the comparability should be assessed in light of the aim of the contested measure and not in an abstract context.

Example: In Varnas v. Lithuania,[92] the applicant, a prisoner on remand, complained that he had been denied conjugal visits from his wife, while convicted prisoners were allowed such visits. The ECtHR explained that the requirement of being in an “analogous position” did not mean that the comparator groups had to be identical. The fact that the applicant’s situation was not fully analogous to that of convicted prisoners did not preclude the application of Article 14 of the ECHR. The applicant had to show that he was in a relevantly similar situation to others who had been treated differently. The ECtHR went on to conclude a violation of Article 14 of the ECHR in conjunction with Article 8.

Example: In Burden v. the United Kingdom,[93] two sisters had co-habited for a period of 31 years. They owned a property jointly and each had left their share in the property to the other in their will. The applicants complained that, unlike married couples or those that entered into civil partnerships, upon death of one, the other would have to pay inheritance tax. The ECtHR found that the applicants as siblings could not compare themselves to cohabiting couples who were married or civil partners. Marriage and civil partnerships amount to special relationships entered into freely and deliberately in order to create contractual rights and responsibilities. In contrast, the applicants’ relationship was based on consanguinity and therefore was fundamentally different.

Example: In Carson v. the United Kingdom,[94] the applicants complained that the state did not apply the same increment to the pension payments of the retirees living abroad as those living the United Kingdom (UK). The ECtHR concluded that the applicants – who did not live in the UK or a state with which the UK had a reciprocal social security arrangement – were not in a similar position to those retired in the UK. Although these different groups had all contributed to government revenue through the payment of national insurance, this did not constitute a pension fund but rather general public revenue to finance various aspects of public spending. Furthermore, the duty of the government to apply increments was based on consideration of the rise in cost of the standard of living in the UK. The applicants were therefore not in a comparable situation to these other groups and there had accordingly been no discriminatory treatment.

Similarly, under the ESC, references to a comparator can be found in the case law of the ECSR.

Example: In Confederazione Generale Italiana del Lavoro (CGIL) v. Italy,[95] the ECSR examined a complaint concerning discrimination of medical practitioners[96] who did not raise conscious objection to provide abortion services. They complained that they were disadvantaged at work in terms of workload, distribution of tasks, career opportunities and protection of health and safety. The Committee confirmed that the non-objecting and objecting medical practitioners were in a comparable situation, because they had similar professional qualifications and worked in the same field of expertise. Consequently, the difference in treatment amounted to discrimination.

The ECSR stated that the legal status in national law of different groups is not relevant for the assessment of whether those groups are in a comparable situation. For example, in Associazione Nazionale Giudici di Pace v. Italy[97] (discussed in detail in Section 5.12), concerning access to the social security scheme, the ECSR compared the situation of tenured and lay judges. It held that in the circumstances of the case, only the duties assigned, hierarchical authority and tasks performed by both groups of judges were relevant. As they were similar, the ECSR found that lay judges were functionally equivalent to tenured judges. Moreover, it held that the comparison should be made only in respect to different groups in a certain Member State. In Fellesforbundet for Sjøfolk (FFFS) v. Norway[98] (discussed in detail in Section 5.5), concerning the retirement age of seafarers in Norway, the claimant argued that the national provision was discriminatory on the grounds of age, both in comparison to seafarers employed on ships in other countries (where the retirement age of seafarers was higher than in Norway) and to individuals in other professions in Norway. The ECSR held that examination had to be limited to the situation of Norway. Furthermore, the ECSR accepted that senior pilots and senior oil workers are comparable categories of workers for the purposes of this complaint. It considered that they were in a sufficiently similar situation, in particular owing to professional hardship and physical strain.

2.1.3. Causation

Chapter 4 will discuss the range of ‘protected grounds’ that exist in European non- discrimination law, such as: sex, gender identity, sexual orientation, disability, age, race, ethnic origin, national origin and religion or belief. This section will focus on the need for a causal link between the less favourable treatment and the protected grounds. In order to satisfy this requirement, one should ask the following question: would the person have been treated less favourably had they been of a different sex, of a different race, of a different age, or in any converse position under any one of the other protected grounds? If the answer is yes, then the less favourable treatment is clearly caused by the grounds in question.

The rule or practice that is being applied does not necessarily need to refer explicitly to the ‘protected ground’, as long as it refers to another factor that is indissociable from the protected ground. Essentially, when considering whether direct discrimination has taken place, one is assessing whether the less favourable treatment is due to a ‘protected ground’ that cannot be separated from the particular factor being complained about.

Example: In Maruko v. Versorgungsanstalt der deutschen Bühnen,[99] after the death of his registered same-sex partner, the complainant wished to claim the ‘survivor’s pension’ from the company that ran his deceased partner’s occupational pension scheme. The company refused to pay, on grounds that survivors’ pensions were only payable to spouses and the complainant had not been married to the deceased. The CJEU accepted that the refusal to pay the pension amounted to unfavourable treatment and that this was less favourable in relation to the comparator of ‘married’ couples. The CJEU found that the institution of ‘life partnership’ in Germany created, in many aspects, the same rights and responsibilities for life partners as for spouses, particularly with regard to state pension schemes. It admitted that for the purposes of this case, life partners were in a similar situation to spouses. The CJEU then went on to state that this would amount to direct discrimination based on sexual orientation. Thus, the fact that they were unable to marry was indissociable from their sexual orientation.

Example: In Richards v. Secretary of State for Work and Pensions,[100] the complainant who had undergone male-to-female gender reassignment surgery wished to claim her pension on her 60th birthday, which was the pensionable age for women in the United Kingdom. At that time, Ms Richards was unable to have her new gender recognised for the purposes of pension legislation.[101] The government refused to grant the pension, maintaining that the complainant had not received unfavourable treatment in comparison to those in a similar situation. According to the government, the complainant had to be regarded as a “man” for the purposes of the pensions legislation. The CJEU noted that the absence of relevant national law precluded the complainant to fulfil the conditions of pension legislation. The CJEU found that a person who has undergone male-to-female gender reassignment in accordance with national law cannot be refused a pension she would be entitled to, had she been held to be a woman under national law.

2.1.4. Discrimination by association

The CJEU have given a broad interpretation of the scope of the ‘protected ground.’ It can include ‘discrimination by association’, where the victim of the discrimination is not themselves the person with the protected characteristic. It can also involve the particular ground being interpreted in an abstract manner. This makes it imperative that practitioners embark on detailed analysis of the reasoning behind the less favourable treatment, looking for evidence that the protected ground is causative of such treatment, whether directly or indirectly.

Example: In S. Coleman v. Attridge Law and Steve Law, [102] a mother claimed that she was treated unfavourably at work because her son was disabled. Her son’s disability led her to be late to work on occasion and to request leave to be scheduled according to her son’s needs. The complainant’s requests were refused and she was threatened with dismissal, as well as receiving abusive comments relating to her child’s condition. The CJEU considered her colleagues in similar posts and with children as comparators, finding that they were granted flexibility when requested. It also accepted that this amounted to discrimination and harassment on the grounds of the disability of her child.

The ECtHR has also confirmed that Article 14 covers discrimination by association.

Example: In Guberina v. Croatia[103] (discussed in Section 5.4), the ECtHR stressed that Article 14 also covers instances in which an individual is treated less favourably on the basis of another person’s protected characteristic. It found that the discriminatory treatment of the applicant on account of the disability of his child was a form of disability-based discrimination.

Example: In Weller v. Hungary, [104] a Romanian woman was ineligible to claim maternity benefits payable after giving birth because she was not a Hungarian citizen. Her Hungarian husband was also ineligible, the benefit being paid only to mothers. The ECtHR found that he had been discriminated against on the basis of fatherhood (rather than sex), since adoptive male parents or male guardians were entitled to claim the benefit, while natural fathers were not. A complaint was also lodged by the children, who claimed discrimination on the basis of the refusal to pay the benefit to their father, which the ECtHR accepted. Thus, the children were discriminated against on the grounds of the status of their father.

The concept of discrimination by association can be also found in national case law.

Example: The first case[105] of discrimination by association on the ground of sexual orientation in Poland concerns an employee who worked as a shop security guard. He took part in an equality parade, excerpts of which were shown on television. After the broadcast, the claimant was informed of his dismissal, his employer submitting that he ‘could not imagine a homosexual working for his company’. The Polish courts considered that discrimination could occur regardless of whether the victim had a certain protected characteristic. The claimant’s sexual orientation was therefore irrelevant. The courts went on to find that the claimant was discriminated against on the basis of his participation in the march linked to the lesbian, gay, bisexual and trans (LGBT) community. They confirmed that discrimination by association had taken place and awarded the claimant compensation.

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79. Similarly: Employment Equality Directive, Art. 2 (2) (a); Gender Equality Directive (recast), Art. 2 (1) (a); Gender Goods and Services Directive, Art. 2 (a).

80. ECtHR, Biao v. Denmark [GC], No. 38590/10, 24 May 2016, para. 89; Similarly, ECtHR, Carson and Others v. the United Kingdom [GC], No. 42184/05, 16 March 2010; para. 61; ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007, para. 175; ECtHR, Burden v. the United Kingdom [GC], No. 13378/05, 29 April 2008, para. 60.

81. ECtHR (2014), Practical guide on admissibility criteria.

82. CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008. See also CJEU, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, C-81/12, 25 April 2013.

83. ECtHR, Thlimmenos v. Greece [GC], No. 34369/97, 6 April 2000, para. 44. Similarly, ECtHR, Pretty v. the United Kingdom, No. 2346/02, 29 April 2002, para. 88.

84. CJEU, C-356/12, Wolfgang Glatzel v. Freistaat Bayern, 22 May 2014.

85. CJEU, C-13/94, P v. S and Cornwall County Council, 30 April 1996.

86. CJEU, C-267/12, Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, 12 December 2013.

87. CJEU, C-256/01, Debra Allonby v. Accrington & Rossendale College, Education Lecturing Services, trading as Protocol Professional and Secretary of State for Education and Employment, 13 January 2004.

88. CJEU, C-177/88, Elisabeth Johanna Pacifica Dekker v. Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, 8 November 1990. Similarly, CJEU, C-32/93, Carole Louise Webb v. EMO Air Cargo (UK) Ltd., 14 July 1994.

89. CJEU, C-191/03, North Western Health Board v. Margaret McKenna, 8 September 2005, para. 50.

90. CJEU, C-506/06, Sabine Mayr v. Bäckerei und Konditorei Gerhard Flöckner OHG [GC], 26 February 2008.

91. ECtHR, Petrov v. Bulgaria, No. 15197/02, 22 May 2008, para. 55.

92. ECtHR, Varnas v. Lithuania, 42615/06, 9 July 2013, for further details see Section 5.12.

93. ECtHR, Burden v. the United Kingdom [GC], No. 13378/05, 29 April 2008.

94. ECtHR, Carson and Others v. the United Kingdom [GC], No. 42184/05, 16 March 2010.

95. ECSR, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, 12 October 2015.

96. Ibid., para. 215 ff.

97. ECSR, Associazione Nazionale Giudici di Pace v. Italy, Complaint No. 102/2013, 5 July 2016.

98. ECSR, Fellesforbundet for Sjøfolk (FFFS) v. Norway, Complaint No. 74/2011, 2 July 2013.

99. CJEU, C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [GC], 1 April 2008.

100. CJEU, C-423/04, Sarah Margaret Richards v. Secretary of State for Work and Pensions, 27 April 2006.

101. Prior to the Gender Recognition Act 2004 (“the GRA”), which came into force on 4 April 2005, it was necessary to take a person’s gender as assigned at birth to determine that person’s gender, so as to decide when that person attained ‘pensionable age” for the purposes of pension legislation.

102. CJEU, C-303/06, S. Coleman v. Attridge Law and Steve Law [GC], 17 July 2008.

103. ECtHR, Guberina v. Croatia, No. 23682/13, 22 March 2016.

104. ECtHR, Weller v. Hungary, No. 44399/05, 31 March 2009.

105. Poland, District Court in Warsaw (court of the second instance), V Ca 3611/14, 18 November 2015. See also, Tribunal du travail de Leuven, 10 December 2013, Jan V.H. v. BVBA, n° 12/1064/A.

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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