2.4. Harassment and instruction to discriminate

Handbook on European non-discrimination lawContents

2.4.1. Harassment and instruction to discriminate under the EU non-discrimination directives

Key point

  • Harassment is a particular manifestation of direct discrimination treated separately under EU law.

A prohibition on harassment and on instruction to discriminate as part of EU non- discrimination law were introduced to allow for more comprehensive protection.

Harassment features as a specific type of discrimination under the EU non- discrimination directives. It had previously been dealt with as a particular manifestation of direct discrimination. Its separation into a specific head under the directives is based more on the importance of singling out this particularly harmful form of discriminatory treatment, rather than a shift in conceptual thinking.

According to the non-discrimination directives, harassment shall be deemed to be discrimination when:
– unwanted conduct related to a protected ground takes place;
– with the purpose or effect of violating the dignity of a person;
– and/or creating an intimidating, hostile, degrading, humiliating or offensive environment.[134]

EU law adopts a flexible objective/subjective approach. First, it is the victim’s perception of the treatment that is used to determine whether harassment has

occurred. Second, however, even if the victim does not actually feel the effects of the harassment, a finding may still be made, so long as the complainant is the target of the conduct in question.

As the European Commission stated in the Explanatory Memorandum attached to the Commission’s proposal for the Employment Equality Directive and Racial Equality Directive, harassment may take

different forms “from spoken words and gestures to the production, display and circulation of written words, pictures or other materials” as long as it is of serious nature.[135]

In S. Coleman v. Attridge Law and Steve Law,[136] the CJEU held that the prohibition of harassment is not limited to a person holding certain characteristics and therefore, for instance, the mother of a disabled child is also protected. Interpretation of the notion ‘harassment’ can be found in the case law of the European Union Civil Service Tribunal (CST),[137] responsible for determining disputes involving the European Union civil service at first instance. The CST explained that for the conduct to be considered as harassment, it should be perceived as excessive and open to criticism for a reasonable observer of normal sensitivity and in the same situation.[138] Furthermore, referring to the definition of ‘harassment’ given by the Employment Equality Directive (2000/78/EC), the CST stressed that from the condition ‘the purpose or effect of violating the dignity of a person’ follows that the harasser does not have to intend to discredit the victim or deliberately impair the latter’s working conditions. It is sufficient that such reprehensible conduct, provided that it was committed intentionally, led objectively to such consequences.[139] The CST held that an appraisal of the performance of an official made by a supervisor, even if critical, cannot as such be classified as harassment. Negative comments addressed to a member of staff do not thereby undermine his personality, dignity or integrity where they are formulated in measured terms and are not based on allegations that are unfair and lacking any connection with objective facts.[140] It has also held that the refusal of annual leave in order to ensure the proper functioning of the service cannot, as such, be regarded as a manifestation of psychological harassment.[141]

The Gender Equality Directives set out sexual harassment as a specific type of discrimination, where the unwanted ‘verbal, non-verbal, or physical’ conduct is of a ‘sexual’ nature.[142] A FRA EU-wide survey on gender-based violence against women shows that 75 % of women in qualified professions or top management have been victims of sexual harassment,[143] and one in 10 women has experienced stalking or sexual harassment through new technologies.[144]

According to the definition of harassment, there is no need for a comparator to prove it. This essentially reflects the fact that harassment in itself is wrong because of the form it takes (verbal, non-verbal or physical abuse) and the potential effect it may have (violating human dignity).

Questions of fact, relating to whether conduct amounts to harassment, are usually determined at the national level before cases are referred to the CJEU. The following cases, therefore, draw from national jurisdiction.

Example: In a case[145] before the French Court of Cassation, an employee complained that his manager regularly criticised him, used inappropriate language and moved him to a smaller office. Despite an internal mediation procedure, the employee instituted civil proceedings against the company for failure to guarantee its employees safety at work. The Court of Cassation specified that the employer was liable for acts of harassment at the workplace, if he had not taken appropriate measures both to prevent any moral harassment and to stop it after it had been formally notified. Since in the case the employer did not adopt sufficient preventive measures, for instance by failing to provide relevant information and training, the French court concluded that the employer had been liable.

Example: In a case[146] before the Hungarian Equal Treatment Authority, a complaint was made about teachers who told Roma students that their misbehaviour at school had been notified to the ‘Hungarian Guard’,

a nationalist organisation known for committing acts of extreme violence against Roma. It was found that the teachers had implicitly endorsed the racist views of the Guard and created a climate of fear and intimidation, amounting to harassment.

In addition, the non-discrimination directives all state that an ‘instruction to discriminate’ is deemed to constitute ‘discrimination’.[147] However, none of the directives provide a definition as to what is meant by the term. In order to be of any worth in combating discriminatory practices, it ought not to be confined to merely dealing with instructions that are mandatory in nature, but should extend to catch situations where there is an expressed preference or an encouragement to treat individuals less favourably due to one of the protected grounds. This is an area that may evolve through the jurisprudence of the courts. An example of instruction to discriminate would be a situation, in which a landlord instructs an estate agent not to rent his apartment to homosexual couples.

Acts of harassment and acts of instruction to discriminate, in addition to constituting discrimination, may well fall under national criminal law, particularly where they relate to race or ethnicity.[148]

2.4.2. Harassment and instruction to discriminate under the ECHR and ESC

While the ECHR does not contain specific provisions prohibiting harassment or instruction to discriminate, it does contain particular rights that relate to the same area. However, harassment may fall under the right to respect for private and family life (protected under Article 8 of the ECHR), or the right to be free from inhuman or degrading treatment or punishment under Article 3. Instruction to discriminate may be examined under other ECHR provisions, such as freedom of religion under Article 9 or freedom of peaceful assembly under Article 11, depending on the context. Where these acts display a discriminatory motive, the ECtHR will examine the alleged breaches of relevant Convention provisions either alone or in conjunction with Article 14, which prohibits discrimination.

Example: In Bączkowski and Others v. Poland,[149] the mayor of Warsaw made public announcements of a homophobic nature, stating that he would refuse permission to hold a march to raise awareness about sexual orientation discrimination. When the decision came before the relevant administrative body, permission was refused based on other reasons, such as the need to prevent clashes between demonstrators. The ECtHR found that the mayor’s statements could have influenced the decision of the relevant authorities, and that the decision was based on the ground of sexual orientation and so constituted a violation of Article 14 of the ECHR in conjunction with Article 11 (the right of peaceful assembly).

Example: In Đorđević v. Croatia,[150] the applicants, a mentally and physically disabled man and his mother, complained that the authorities had failed to protect them from harassment and violence perpetrated by children living in their neighbourhood. The ECtHR noted that most of the alleged defendants were children under fourteen, who could not be held criminally liable under domestic law. However, the authorities had been aware of the situation of serious harassment directed against a person with physical and mental disabilities and they were obliged to take reasonable measures to prevent further abuse. Isolated reactions to specific incidents (like the prompt arrival of police officers, interviews with the children and police reports) were not sufficient in a situation where incidents of harassment and violence had persisted over a long period of time. The authorities should have taken action of a general nature to combat the problem. The ECtHR concluded that there had been a violation of Article 3 in respect of the disabled man. Regarding the mother’s complaint, the ECtHR stressed that the continued harassment of her disabled son, of whom she was taking care, along with incidents which concerned her personally, had negatively affected her private and family life. By failing to address properly the acts of violence or to put in place any relevant measures to prevent further harassment of her son, the authorities had failed to protect her right to respect for private and family life, in breach of Article 8 of the ECHR.

Example: In Catan and Others v. the Republic of Moldova and Russia,[151] the ECtHR examined a complaint of harassment in relation to the right to education under Article 2 of Protocol No. 1. The applicants, children and

parents from the Moldovan community in Transdniestria, complained about the forcible closure of schools and harassment of pupils wishing to be educated in their national language. Incidents of harassment included detention of teachers, destruction of Latin script materials, as well as repeated incidents of vandalism and intimidation, including parents losing their jobs. The ECtHR considered those acts as interference with the applicant pupils’ right to education but also found that the said measures amounted to an interference with the applicant parents’ rights to ensure their children’s education and teaching in accordance with their philosophical convictions. The measure did not seem to pursue any objective aim. In fact, the language policy of the ‘Moldavian Republic of Transdniestria’, as applied to these schools, appeared to have been intended to enforce the Russification of the language and culture of the Moldovan community. Consequently, there had been a violation of Article 2 of Protocol No. 1 by Russia.

Under the ESC, Article 26 (2) establishes a right to protection of human dignity against harassment creating a hostile working environment related to a specific characteristic of a person. It must be possible for employers to be held liable when harassment occurs in relation to work, or on premises under their responsibility, even when it involves, as a defendant or a victim, a third person not employed by them, such as independent contractors, self-employed workers, visitors, clients, etc.[152]

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134. See: Racial Equality Directive, Art. 2 (3); Employment Equality Directive, Art. 2 (3); Gender Goods and Services Directive, Art. 2 (c); Gender Equality Directive (recast), Art. 2 (1) (c).

135. Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, COM/99/0566 final – CNS 99/0253, 25/11/1999 and Proposal for a Council Directive establishing a General Framework for Equal Treatment in Employment and Occupation, COM/99/0565 final – CNS 99/0225.

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

137. In 2015, in view of the increase in litigation and the excessive length of proceedings in cases
being dealt with in the General Court, the EU legislature decided to gradually increase the
number of Judges at the General Court to 56 and to transfer to it the jurisdiction of the Civil
Service Tribunal, which was dissolved on 1 September 2016.
138. European Union Civil Service Tribunal (CST), F-42/10, Carina Skareby v. European Commission,
16 May 2012, para. 65.

139. CST, F-52/05, Q v. Commission of the European Communities, 9 December 2008, para. 135.
140. CST, F-12/13, CQ v. European Parliament, 17 September 2014, para. 87.

141. Ibid., para. 110.

142. Gender Goods and Services Directive, Art. 2 (d); Gender Equality Directive (recast),
Art. 2 (1) (d).

143. FRA (2014), Violence against women: an EU-wide survey. Main results report, Luxembourg,
Publications Office of the European Union (Publications Office), p. 96.

144. Ibid., p. 104.

145. France, Court of Cassation, Social Chamber, M. Jean-François X… v. M. Serge Y…; and Others,
No. 14-19.702, 1 June 2016.

146. Hungary, Equal Treatment Authority, Decision No. 654/2009, 20 December 2009.

147. Employment Equality Directive, Art. 2 (4); Gender Goods and Services Directive, Art. 4 (1);
Gender Equality Directive (recast), Art. 2 (2) (b); Racial Equality Directive, Art. 2 (4).
148. See Sections 2.6 and 2.7.

149. ECtHR, Bączkowski and Others v. Poland, No. 1543/06, 3 May 2007.

150. ECtHR, Đorđević v. Croatia, No. 41526/10, 24 July 2012.

151. ECtHR, Catan and Others v. the Republic of Moldova and Russia [GC], 43370/04, 18454/06 and
8252/05, 19 October 2012.

152. ECSR, Conclusions 2014, Finland; Conclusions 2003, Sweden.

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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