2.2. Indirect discrimination

Handbook on European non-discrimination lawContents

Key points

  • Indirect discrimination occurs when an apparently neutral rule disadvantages a person or a group sharing the same characteristics.
  • It must be shown that a group is disadvantaged by a decision when compared to a comparator group.

Both EU and CoE law acknowledge that prohibiting the different treatment of people in similar situations might not be sufficient to achieve factual equality. In some situations, offering the same treatment to people who are in different situations may put certain people at a particular disadvantage. In this case, it is not the treatment that differs, but rather the effects of that treatment, which will be felt differently by people with different characteristics. The idea that different situations should be treated differently has been incorporated into the concept of indirect discrimination.

Under EU law, Article 2 (2) (b) of the Racial Equality Directive states that ‘indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared to other persons’.[106]

Under the ECHR, the ECtHR has drawn on this definition of indirect discrimination in some of its judgments, stating that ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group’.[107]

The elements of indirect discrimination are as follows:
• a neutral rule, criterion or practice;
• that affects a group defined by a ‘protected ground’ in a significantly more negative way;
• in comparison to others in a similar situation.

Under the ESC, the ECSR has found that indirect discrimination may arise by “failing to take due and positive account of all relevant differences between persons in a comparable situation, or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all”.[108]

It should be noted, however, that both kinds of discrimination result in a difference of treatment in comparable situations. For example, a woman could be excluded from employment either

because the employer does not want to employ women (direct discrimination) or because the requirements for the position are formulated in such a way that most women would not be able to fulfil them (indirect discrimination). In some cases, the division is more theoretical and it might be problematic to establish whether the situation constitutes direct or indirect discrimination.[109]

2.2.1. A neutral rule, criterion or practice

The first identifiable requirement of indirect discrimination is an apparently neutral rule, criterion or practice. In other words, there must be some form of requirement that is applied to everybody. Follow some cases for illustration. For further examples, see Chapter 6 on evidential issues and the role of statistics.

Example: In Isabel Elbal Moreno v. Instituto Nacional de la Seguridad Social, Tesorería General de la Seguridad Social,[110] the complainant had worked part-time for four hours a week for 18 years. According to the relevant provision, in order to obtain a pension – which was already proportionally lower – a part-time worker had to pay contributions for a longer period than a full-time worker. As the referring court explained, on the basis of a part-time contract of 4 hours a week, the complainant would have to work for 100 years to complete the minimum period of 15 years, which would give her access to a pension of € 112.93 a month. The CJEU held that the relevant provisions put part-time workers who have worked part time for a long time at a disadvantage. In practice, such legislation excludes those workers from any possibility of obtaining a retirement pension. Given that at least 80 % of part-time workers in Spain are women, the effect of this rule disproportionately affected women in comparison to men. Accordingly, it constituted indirect discrimination.

Example: In D.H. and Others v. the Czech Republic, [111] a series of tests were used to establish the intellectual capacity of pupils to determine whether they should be placed into special schools designed for children with special educational needs. The same test was applied to all pupils who were considered for placement in special schools. The ECtHR considered that there was a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. In particular, the educational background of Roma children (such as a lack of preschool), some of the children’s inability to speak Czech and their unfamiliarity with the testing situation were not taken into account. As a result, Roma students were inherently more likely to perform badly on the tests – which they did – with the consequence that between 50 % to 90 % of Roma children were educated outside the mainstream education system. The ECtHR found that this was a case of indirect discrimination.

Example: In European Action of the Disabled (AEH) v. France[112] (discussed in Section 4.4), the ECSR considered that limited funds in the state’s social budget for the education of children and adolescents with autism indirectly disadvantaged persons with disabilities. The Committee explained that the limited public funding allocated to social protection could equally affect everyone who was supposed to be covered by this protection. However, a person with a disability is more likely to be dependent on community care, funded through the state budget, in order to live independently and in dignity, in comparison to other persons. Thus, budget restrictions in social policy matters are likely to place persons with disabilities at a disadvantage, which results in a difference in treatment indirectly based on disability. Consequently, the ECSR found that the state’s limited social budget constituted indirect discrimination against persons with disabilities.

Example: In a case[113] before the United Kingdom Employment Appeal Tribunal, the complainant, a train driver and single mother with three children under the age of five, filed a request for flexible working. Her request was refused on the basis that it would be unfair to allow her to only work the family- friendly shifts because other drivers would then be denied the choice of those shifts as a result. The courts agreed that the required shift pattern generally put women at a disadvantage, because more women have caring responsibilities than men and would be unable to work those hours. The case was remitted for the question of objective justification to be reconsidered.

2.2.2. Significantly more negative in its effects on a protected group

The second identifiable requirement is that the apparently neutral provision, criterion or practice places a ‘protected group’ at a particular disadvantage. Accordingly, indirect discrimination differs from direct discrimination in that it moves the focus away from differential treatment to differential effects.

Example: In Odar v. Baxter Deutschland GmbH,[114] the CJEU considered a formula in a social plan, resulting in employees aged over 54 years receiving less redun- dancy compensation than younger ones. Dr. Odar, who had severe disability, received a compensation under the social plan, which was calculated based on the earliest date at which he would receive a pension. If his compensation had been calculated under the standard formula, taking into account the length of service, he would have received twice the amount. The Court found that it did not constitute direct discrimination based on age (such a difference in treatment may be justified under Article 6 (1) of Directive 2000/78/EC) but indirect discrimination based on disability. The CJEU held that the difference in treatment disregarded the risks that persons with severe disabilities face over time, particularly in finding new employment, as well as the fact that those risks tend to become exacerbated as they approach retirement age. In paying a worker with a severe disability a compensation that is lower than the amount paid to a worker without a disability, the special formula has an excessive adverse effect on the legitimate interests of severely disabled workers and therefore goes beyond what is necessary to achieve the social policy objectives.

When considering statistical evidence that the protected group is disproportion- ately affected in a negative way in comparison to those in a similar situation, the CJEU and ECtHR will seek evidence that a particularly large proportion of those negatively affected is made up of that ‘protected group’. For instance, in Di Trizio

v. Switzerland,[115] the ECtHR relied on statistics showing that 97 % of persons affected by the applied method of calculation of disability benefits were women who wished to reduce their working hours after the birth of a child. This will be considered in detail in Chapter 5 relating to evidential issues. For now, reference is made to the collection of phrases used by the CJEU appearing in the Opinion of Advocate General Léger in the Nolte case when speaking of sex discrimination:

‘[I]n order to be presumed discriminatory, the measure must affect “a far greater num- ber of women than men” [Rinner- Kühn[116]] or “a considerably lower percentage of men than women” [Nimz,[117] Kowalska[118]] or “far more women than men” [De Weerd[119]]’.[120]

Example: In a case[121] before German courts, a woman applied to training for pilots at Lufthansa. Although she passed all the tests, she was not admitted because she was shorter than 1.65 m required for pilots. She complained about indirect discrimination, arguing that, since 44.3 % of all women but only 2.8 % of men were smaller than 1.65 m, the requirement specifically disadvantaged women. The case ended in friendly settlement. Lufthansa agreed to pay compensation for the unequal treatment.

2.2.3. A comparator

As with direct discrimination, a court will still need to find a comparator to determine whether the effect of the particular rule, criterion or practice is significantly more negative than those experienced by other individuals in a similar situation. Both in cases of alleged direct and indirect discrimination, the courts will compare, for example, men to women, homosexual couples to heterosexual couples, individuals with disabilities to individuals without disabilities.

However, establishing indirect discrimination requires proving that there are two groups: one advantaged and one disadvantaged by the contested measure. Usually, the disadvantaged group does not exclusively consist of persons holding protected characteristics. For example, part-time employees disadvantaged by a certain rule are mostly women, but men can also be affected. On the other hand, not all persons holding a particular characteristic are disadvantaged. For example, in a situation in which having a perfect knowledge of a language is a condition for employment, it will mostly disadvantage foreign applicants, but there might be some people among those foreign candidates who are able to fulfil this requirement. In cases where a formally neutral criterion in fact affected an entire group, the CJEU has concluded that there had been direct discrimination.[122]

The following case provided an opportunity for the CJEU to clarify various aspects related to the concept of discrimination, the difference between direct and indirect discrimination and the appropriate comparator.

Example: In “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia,[123] the claimant ran a shop in an urban district inhabited mainly by persons of Roma origin. She complained that the high placement of electricity meters on pylons, a practice which was not carried out in other districts, meant that she was unable to control her electricity consumption. Before the national courts, the claimant alleged discrimination based on ethnic origin, even though she was not Roma herself.

The CJEU held that the concept of ‘discrimination on the grounds of ethnic origin’ applied to any person who, although not a member of the race or ethnic origin concerned, was nevertheless affected by a discriminatory measure in the same way as persons who were members of that ethnic origin. Accordingly, it had to be established that there was a link between a discriminatory measure and racial or ethnic origin. As regards the comparator, the CJEU held that all final consumers of electricity, supplied by the same distributor within an urban area, irrespective of the district in which they resided, had to be regarded as being in a comparable situation.

The second important issue concerns the question of whether the practice at issue fell within the category of direct or indirect discrimination. If the reason for the practice was based on the ethnicity of the majority of the district inhabitants, the alleged practice constituted direct discrimination. If the national courts reached the conclusion that the practice was based exclusively on objective factors unrelated to race or ethnic origin (for example because of the high level of illegal interference with electricity meters) the practice could constitute indirect discrimination, if a measure disadvantaged only districts inhabited by a Roma majority. Such a measure would be capable of being objectively justified if there existed no other appropriate and less restrictive means to achieve the pursued aims (ensuring the security of electricity transmission and the due recording of electricity consumption). In the absence of such measure, the practice would not be disproportionate only, if the inhabitants of the district were prejudiced in having access to electricity in conditions which are not of offensive or stigmatising nature and which do enable them to monitor their electricity consumption regularly.

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

107. ECtHR, Biao v. Denmark [GC], No. 38590/10, 24 May 2016, para. 103; ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007, para. 184.

108. ECSR, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, 12 October 2015, para. 237; ECSR, Confédération française démocratique du travail (CFDT) v. France, Complaint No. 50/2008, decision on the merits of 9 September 2009, paras. 39 and 41; ECSR, International Association Autism-Europe v. France, Complaint No. 13/2002, 4 November 2003, para. 52.

109. See, for example, CJEU, C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [GC], 1 April 2008, where the Advocate General Ruiz-Jarabo Colomer and CJEU reached different conclusions in this regard.

110. CJEU, C-385/11, Isabel Elbal Moreno v. Instituto Nacional de la Seguridad Social (INSS) and Tesorería General de la Seguridad Social (TGSS), 22 November 2012.

111. ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007.

112. ECSR, European Action of the Disabled (AEH) v. France, Complaint No. 81/2012, 11 September 2013.

113. United Kingdom, Employment Appeal Tribunal, XC Trains Ltd v. CD & Ors, No. UKEAT/0331/15/LA, 28 July 2016.

114. CJEU, C-152/11, Johann Odar v. Baxter Deutschland GmbH, 6 December 2012.

115. ECtHR, Di Trizio v. Switzerland, No. 7186/09, 2 February 2016.

116. CJEU, C-171/88, Ingrid Rinner-Kühn v. FWW Spezial-Gebäudereinigung GmbH & Co. KG, 13 July 1989.

117. CJEU, C-184/89, Helga Nimz v. Freie und Hansestadt Hamburg, 7 February 1991.

118. CJEU, C-33/89, Maria Kowalska v. Freie und Hansestadt Hamburg, 27 June 1990.

119. CJEU, C-343/92, M. A. De Weerd, née Roks, and Others v. Bestuur van de Bedrijfsvereniging voor de Gezondheid, Geestelijke en Maatschappelijke Belangen and Others, 24 February 1994.

120. Opinion of Advocate General Leger of 31 May 1995, paras. 57-58 in CJEU, C-317/93, Inge Nolte v. Landesversicherungsanstalt Hannover, 14 December 1995. For an example of a similar approach having been adopted under the ECHR, see the case of D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007 (discussed in Sections 6.2 and 6.3).

121. Germany, Federal Labour Court, 8 AZR 638/14, 18 February 2016.

122. See C-267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen [GC], 1 April 2008 discussed in detail in Section 2.1.3 and CJEU, C-267/12, Frédéric Hay v. Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres, 12 December 2013, discussed in Section 2.1.2 and 4.1.

123. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015.

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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