2.5. Special or specific measures

Handbook on European non-discrimination lawContents

Key points

  • To ensure that everyone has equal enjoyment of rights, governments, employers and service providers may need to take special or specific measures to adapt their rules and practices to those with different characteristics.
  • The terms ‘special’ or ‘specific’ measures can be taken to include redressing past disadvantage suffered by those with a protected characteristic. Where this is proportionate, it may constitute a justification for differential treatment.

Refraining from discriminatory treatment is sometimes not sufficient to achieve factual equality. Therefore, in some situations, governments, employers and

service providers must ensure that they take steps to adjust their rules and practices to take relevant differences into consideration – that is, they must do something to adjust current policies and measures. In the UN context, these are labelled ‘special measures’, while the EU law refers to ‘specific measures’ or ‘positive action’. The ECtHR speaks about ‘positive obligations’. By taking special measures, governments are able to ensure ‘substantive equality’, that is, equal enjoyment of opportunities to access benefits available in society, rather than mere ‘formal equality’. Where governments, employers and service providers fail to consider the appropriateness of taking special measures, they increase the risk that their rules and practices may amount to indirect discrimination.

Example: In a case from the United Kingdom,[153] two female cabin crew members brought a claim against their employer, after it failed to offer arrangements that they considered appropriate to enable them to continue breastfeeding when they returned to work after maternity leave. They were required to work shifts of more than eight hours, which was not acceptable on medical grounds (prolonged periods without expressing milk increase the risk of mastitis). The Employment Tribunal found that the airline had discriminated against the claimants indirectly on grounds of their sex. It stressed that the airline should have reduced the breastfeeding mothers’ hours, found them alternative duties or suspended them on full pay. The refusal could not be objectively justified because there was no convincing evidence that creating special arrangements for two employees would cause the employer excessive difficulties.

The example described above illustrates a situation in which a person in a disadvantaged position alleged that the employer did not adequately address their needs. The defendant fails to act and to provide for positive measures. In contrast, when the obligation to act is fulfilled, the term ‘special measures’ is used to include a situation where differential treatment takes place that favours individuals on the basis of their protected grounds. Therefore, the term ‘special measures’ can be understood from two different angles. From the perspective of the beneficiary, more favourable treatment is accorded on the basis of a protected characteristic, in comparison to someone in a similar situation. From the perspective of the victim, less favourable treatment is accorded on the basis that they do not hold a protected characteristic. Typical examples include reserving posts for women in male-dominated work places or ethnic minorities in public services, such as policing, in order to better reflect the composition of society. Reduced fees for public transport for elderly person to compensate for their reduced earning capacity represents another example.

Special measures therefore allow moving beyond an individual approach and taking into consideration the collective aspect of discrimination.

The terminology used to describe this varies greatly to include ‘positive measures’, ‘positive’ or ‘reverse’ discrimination, ‘preferential treatment’, ‘temporary special measures’ or ‘affirmative action’.[154] This reflects its accepted function as a short- term and exceptional means of challenging prejudices against individuals who would normally suffer discrimination, by favouring members of a disadvantaged group.

In this context, the courts tended to treat differential treatment not as a distinct form of discrimination in itself but as an exception to the prohibition of discrimination. In other words, the courts accept that differential treatment has occurred, but that it may be justified in the interests of correcting a pre-existing disadvantage, such as underrepresentation in the workplace of particular groups.

Example: A case[155] before German courts concerns a job advertisement starting with the catchphrase: ‘Women come to power!’ An unsuccessful male candidate complained that he as a man was discriminated against. The labour court however dismissed the complaint. It accepted the arguments put forward by the respondent company. It found that the difference in treatment was justified as the company (car dealer) had no female employees and the aim of the measure was to provide clients with both genders.

Under international law, the permissibility of taking positive measures in favour of disadvantaged groups is further reinforced by guidance issued by several of the monitoring bodies responsible for interpreting UN human rights treaties. Namely, such measures should be appropriate to the situation to be remedied, legitimate and necessary in a democratic society. Furthermore, they should respect the principles of fairness and proportionality, be temporary[156] and they shall not be continued after the objectives for which they have been taken have been achieved.

According to the UN Committee on the Elimination of Racial Discrimination, in order to be permissible, the sole purpose of such measures should be the elimination of existing inequalities and the prevention of future imbalances.[157] State Parties should educate and raise the awareness of the public on the importance of special measures to address the situation of victims of racial discrimination, especially discrimination as a result of historical factors.[158] In this regard, the Committee observed that overcoming the structural discrimination that affects people of African descent calls for the urgent adoption of special measures.

The UN Committee on the Elimination of Racial Discrimination (CERD) emphasised that treating in an equal manner persons or groups whose situations are objectively different will, in effect, constitute discrimination. Moreover, it stated that it is important that such measures are based on the realistic appraisal of the current situation of individuals and communities, including accurate and disaggregated data, and prior consultations with affected communities.[159]

The UN Human Rights Committee pointed out that the principle of equality sometimes requires States Parties to take measures to diminish or eliminate conditions which cause or perpetuate discrimination. In case “the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population. However, as long as such action is needed to correct discrimination in fact, it is a case of legitimate differentiation under the Covenant.”[160]

The UN Committee on the Elimination of Discrimination Against Women elaborated that such ‘temporary special measures’ could include “preferential treatment; targeted recruitment, hiring and promotion; numerical goals connected with time frames; and quota systems”.[161] According to the case law  of the CJEU, discussed below, the proportionality of such measures will be measured strictly.

Under EU law, the EU non-discrimination directives expressly foresee the possibility of positive action, stating: “[w]ith a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to [a protected ground]”.[162] The EU Charter of Fundamental Rights also affirms that special protection is necessary for certain groups, namely: men and women (Article 23), children (Article 24), the elderly (Article 25) and persons with disabilities (Article 26).

Under EU law, specific measures also appear as a justification of differential treatment under the non-discrimination directives and in the case law of the CJEU, as well as within the exception of a ‘genuine occupational requirement’, as discussed later in Section 3.3.1.

The principal CJEU cases concerning special measures have arisen in the context of gender equality; namely the Kalanke case,[163] the Marschall case[164] and the Abrahamsson case.[165] Together, these cases defined the limits on how far special measures can be taken to compensate for the previous disadvantages suffered by, in these particular cases, female workers over the years.

Example: In Kalanke v. Freie Hansestadt Bremen, the CJEU took a strict ap- proach to according preferential treatment to correct the underrepresentation of women in particular posts. This case concerns legislation adopted at the regional level, which accorded automatic priority to female candidates apply- ing for posts or promotions. Where male and female candidates were equally qualified, and where female workers were deemed to be underrepresented in that sector, female candidates must be given preference. Underrepresenta- tion was deemed to exist where female workers did not make up at least half of the staff in the post in question. In this case, an unsuccessful male candidate, Mr Kalanke, complained that he had been discriminated against based on his sex before the national courts. The national courts referred the case to the CJEU, asking whether this rule was compatible with Article 2 (4) of the Equal Treatment Directive of 1976 (the predecessor to Article 3 of the Gender Equality Directive on ‘positive action’), which states that: “This Di- rective shall be without prejudice to measures to promote equal opportunity for men and women, in particular by removing existing inequalities which affect women’s opportunities”.[166]

The CJEU stated that Article 2 (4) was designed to allow measures that, “although discriminatory in appearance, are in fact intended to eliminate or reduce actual instances of inequality which may exist in the reality of social life”.[167] It was accepted that the rule pursued the legitimate aim of eliminating inequalities present in the workplace. Accordingly, measures that give women a specific advantage in the workplace, including promotion, would be acceptable, so long as these were introduced to bring an improvement in women’s ability to compete in the labour market free of such discrimination.

It was also stated, however, that any exception to the right to equal treatment should be strictly construed. It was found that where the rule in question guaranteed “women absolute and unconditional priority for appointment or promotion”, this would in fact be disproportionate to achieving the aim of eliminating inequality relative to the right of equal treatment. Accordingly, the preferential treatment could not be justified in this case.

Nevertheless, later cases show that specific measures may be acceptable where the rule does not require automatic and unconditional priority to be accorded.

Example: The case of Marschall v. Land Nordrhein-Westfalen[168] concerns legislation similar in substance to the Kalanke case. However, the rule in question stated that equally qualified women should be given priority “unless reasons specific to an individual male candidate tilt the balance in his favour”. Mr Marschall, who was rejected for a post in favour of a female candidate, contested the legality of this rule before the national courts, which referred the case to the CJEU, once again asking if this rule was compatible with the Equal Treatment Directive. The CJEU found that a rule of this nature was not disproportionate to the legitimate aim of eliminating inequality as long as “in each individual case, it provides for male candidates who are equally as qualified as the female candidates a guarantee that their candidatures will be the subject of an objective assessment which will take account of all criteria specific to the individual candidates and will override the priority accorded to female candidates where one or more of those criteria tilts the balance in favour of the male candidate”. Thus, discretion built into the rule prevented the priority from being absolute and was therefore proportionate to achieving the aim of addressing inequality in the workplace.

Example: The case of Abrahamsson and Leif Anderson v. Elisabet Fogelqvist[169] concerns the validity of Swedish legislation, which falls in between the unconditional priority of the rule in the Kalanke case and the discretion created in the Marschall case. The rule stated that a candidate of an underrepresented sex who possessed sufficient qualifications to perform the post should be accorded priority, unless “the difference between the candidates’ qualifications is so great that such applications would give rise to a breach of the requirement of objectivity in the making of appointments”.

The CJEU found that in effect the legislation automatically granted candidates from the underrepresented sex priority. The fact that the provision only prevented this where there was a significant difference in qualifications was not sufficient to prevent the rule from being disproportionate in its effects.

Example: In Maurice Leone and Blandine Leone v. Garde des Sceaux, ministre de la Justice and Caisse nationale de retraite des agents des collectivités locales,[170] the complainant was refused the right to early retirement. The relevant national provisions provided this right for civil servants who have three children and who have taken career breaks for each one of them. The complainant was a father of three children, but he never took career breaks. He complained this constituted indirect discrimination on grounds of sex since biological mothers were automatically qualified. The CJEU found that a measure such as an early retirement is limited to favouring an early end to working life, but it does not compensate for the disadvantages that the female servants may encounter in the course of their professional life. Therefore, the measure cannot contribute to ensure full equality in practice between men and women in working life. In conclusion, it held that the contested provisions give rise to indirect discrimination, unless it can be justified by objective factors unrelated to any discrimination on grounds of sex and it is appropriate and necessary to achieve that aim.

These cases highlight that the CJEU has generally been cautious in its approach to allowing specific measures to override the principle of fairness. Only in limited circumstances where the specific measures are not unconditional and absolute, will the CJEU allow national rules to fall within the derogation of Article 2 (4).

When faced with an issue concerning specific measures under the EU non- discrimination directives, practitioners must devote special attention to the ‘action’ that has been put in place to favour a particular grouping of persons. It is clearly the position, as evinced by the CJEU case law above, that specific measures are a last resort. Practitioners and court officials, if dealing with a case involving specific measures, must ensure that all candidates considered by the employer in question, including those that are not targeted by the special measures provision, are assessed objectively and fairly for the position in question. Special measures can only be utilised when an objective assessment has identified a number of candidates – including individuals from a targeted group – as equally capable of fulfilling an available role. It is only in such circumstances that a member of a targeted group, which is selected due to previous historic discrimination in the workplace, can be selected ahead of an individual that falls outside of the targeted group.

Furthermore, one positive action has been clearly distinguished from others. Article 5 of the Employment Equality Directive contains specific articulations of the general rule of specific measures in relation to persons with disabilities, which requires employers to make ‘reasonable accommodation’ to allow those with physical or mental disabilities to be given equal employment opportunities. This is defined as ‘appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer’. Appropriate measures might include installing a lift or a ramp or a disabled toilet in the workplace to allow wheelchair access.[171]

Therefore, certain measures for the promotion of equality should be differentiated from ‘affirmative action’ as they do not discriminate against any other individual (for example, allowing breast-feeding in the workplace), and consequently there is no reason for them to be temporary or used as a last resort.

Example: In European Commission v. Italian Republic,[172] the CJEU emphasised that the obligation to adopt effective and practical measures where needed, in particular cases as laid down in Article 5 of the Employment Equality Directive, covers all employers. Under Italian law, not all categories of employers were required to take appropriate measures, hence the CJEU held that Italy had failed to fulfil its obligation to ensure the correct and full implementation of Article 5 of the directive.

Under the ECHR, a state can be subject to positive obligations. The relevant ECtHR case law of positive actions is mainly devoted to the issue of whether, in certain situations, the state is obliged, rather than only allowed, to take positive actions.

Example: In Çam v. Turkey,[173] concerning the refusal of a music school academy to enrol a student on the grounds of her visual impairment, the ECtHR established that the state had failed to take positive steps to ensure that students with disabilities could enjoy education in a non-discriminatory manner. The ECtHR noted that discrimination based on disability also covered the refusal to provide reasonable accommodation (for example, adaptation of teaching methods to make them accessible to blind students).[174]

Example: In Horváth and Kiss v. Hungary,[175] a case concerning the placement of Roma children in special schools, the ECtHR stressed that the state had positive obligations to undo a history of racial segregation in special schools.[176] The ECtHR also observed that the state had specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests.[177]

Example: In Kurić and Others v. Slovenia,[178] the applicants were nationals of states that had formerly constituted part of the Socialist Federal Republic of Yugoslavia. Under one of the laws passed after Slovenia had declared independence, the applicants were given six months to apply for citizenship of Slovenia. As they did not do this, after the expiry of the six-month deadline, their names were erased from the civil registry, resulting in their statelessness and meaning they were residing illegally in Slovenia. The ECtHR found that the prolonged refusal to resolve their residence status constituted an interference with their right to private and/or family life, and that they had been discriminated against because they were in a disadvantaged situation compared with other foreigners in Slovenia. In doing so, the Court stressed that “Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct ‘factual inequalities’ between them. Indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article”.[179]

Under the ESC, Article E prohibits all forms of discrimination including indirect discrimination. According to the ECSR: “Such indirect discrimination may arise by failing to take due and positive account of all relevant differences 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”.[180] A large number of ESC provisions includes the obligation for States Parties to take positive measures. For example, Article 23 of the ESC provides for the right of elderly persons to social protection. Pursuant to this provision, states should adopt all appropriate measures designed in particular to:

(i) enable elderly persons to remain full members of society for as long as possible;

(ii) enable elderly persons to choose their life-style freely and to lead inde- pendent lives in their familiar surroundings for as long as they wish and are able;

(iii) guarantee elderly persons living in institutions appropriate support, while respecting their privacy, and participation in decisions concerning living conditions in the institution.

The expression ‘full members’ means that elderly persons must not be excluded on account of their age. The ECSR has interpreted this article as requiring the introduction of legislation protecting elderly persons against discrimination. Article 15 (2) of the ESC requires States Parties to promote an equal and effective access to employment on the open labour market for persons with disabilities.[181] To this end, legislation must prohibit discrimination on the grounds of disability[182] to create genuine equality of opportunities in the open labour market,[183] prohibit the dismissal based on disability and confer an effective remedy on those who are found to have been unlawfully discriminated.[184] In addition, regarding working conditions, there must be obligations on the employer to take steps in accordance with the requirement of reasonable accommodation to ensure effective access to employment and to keep in employment persons with disabilities, in particular persons who have become disabled while in their employment as a result of an industrial accident or occupational illness.[185]

Example: The case of The Central Association of Carers in Finland v. Finland[186] concerns the reorganisation of long-term care services for elderly persons in Finland. Service housing replaced the former institutional care facilities. The main difference between the two care servive types was the pricing system. Fees for long-term institutional care were fixed by law, making the service available to persons with low income. In contrast, there were no provisions regulating fees for service housing or service housing with 24-hour assistance, in particular there were no upper limits on fees. As a result, persons in need of such services were charged much higher fees than persons in institutional care. The complaining association alleged that the lack of regulation and the pricing system created uncertainties and prevented elderly persons from accessing services necessitated by their condition. The Committee held that there had been a violation of Article 23 of the ESC. The ECSR considered the following arguments to be decisive in its conclusion:

(i) insufficient regulation of fees and the fact that the demand for those services exceeded supply caused legal uncertainties to elderly persons in need of care owing to diverse and complex fee policies. It stressed that “[w]hile municipalities may adjust the fees, there are no effective safeguards to assure that effective access to services is guaranteed to every elderly person in need of services required by their condition”;

(ii) the situation created an obstacle to the right to “the provision of information about services and facilities available for elderly persons and their opportunities to make use of them” as guaranteed by Article 23 (b) of the ESC.

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153. United Kingdom, Bristol Employment Tribunal, McFarlane and another v. easyJet Airline Company, ET/1401496/15 and ET/3401933/15, 29 September 2016.

154. For example, ICERD, Art. 1.4 and 2.2; CEDAW Art. 4; CRPD Art. 5.4; UN, Committee on Economic Social and Cultural Rights (CESCR) (2009) General comment No. 20: Non-discrimination in economic, social and cultural rights, 2 July 2009, E/C.12/GC/20; UN,Committee on the Rights of the Child (CRC) (2009), General comment No. 11: Indigenous children and their rights under the Convention [on the Rights of the Child], 12 February 2009, CRC/C/GC/11; UN, Committee on the Elimination of Racial Discrimination (CERD) (2009), General Recommendation No. 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. CERD/C/GC/32, 24 September 2009; UN, CERD (2004), General Recommendation 30, Discrimination against non-citizens, CERD/C/64/Misc.11/rev.3; UN, CERD (1994), General Recommendation 14, Definition of Racial Discrimination, U.N. Doc. A/48/18 at 114; UN, CESCR (1999), General Comment 13: The Right to Education, UN Doc. E/C.12/1999/10, 8 December 1999; UN, Committee on the Elimination of Discrimination Against Women (2004), General Recommendation No. 25: Art. 4, para. 1, of the Convention (temporary special measures), UN Doc. A/59/38(SUPP), 18 March 2004; UN, Human Rights Committee (1989), General Comment No. 18: Non-Discrimination, UN Doc. A/45/40 (Vol. I.) (SUPP), 10 November 1989; UN, CERD (2005), General Recommendation 30 on Discrimination against Non-Citizens, UN Doc. HRI/GEN/1/Rev.7/Add.1, 4 May 2005.

155 Germany, Labour Court in Cologne, Az. 9 Ca 4843/15, 10 February 2016.

156. UN, CERD (2009), General Recommendation 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. CERD/C/GC/32, 24 September 2009, para. 16.

157. Ibid., paras. 21-26.

158. UN, CERD (2011), General recommendation No. 34: Racial discrimination against people of African descent, 3 October 2011, CERD/C/GC/34.

159. CERD (2009), General Recommendation 32: The Meaning and Scope of Special Measures in the International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. CERD/C/GC/32, 24 September 2009, paras. 21-26.

160. UN, Human Rights Committee (1989), CCPR General Comment 18: Non-discrimination, UN Doc. HRI/GEN/1/Rev.1, 10 November 1989.

161. UN, Committee on the Elimination of Discrimination Against Women (CEDAW) (2004), General Recommendation No. 25: Art. 4, para. 1, of the Convention (temporary special measures), UN Doc. A/59/38 (SUPP), 18 March 2004, para. 22.

162. Racial Equality Directive, Art. 5; Employment Equality Directive, Art. 7; Gender Goods and Services Directive, Art. 6; and also with a slightly different formulation: Gender Equality Directive (recast), Art. 3.

163. CJEU, C-450/93, Eckhard Kalanke v. Freie Hansestadt Bremen, 17 October 1995.

164. CJEU, C-409/95, Hellmut Marschall v. Land Nordrhein-Westfalen, 11 November 1997.

165. CJEU, C-407/98, Katarina Abrahamsson and Leif Anderson v. Elisabet Fogelqvist, 6 July 2000.

166. Equal Treatment Directive 76/207/EEC, OJ L 39, 14.02.1976, p. 40.

167. This wording has been largely adopted in the preambles to the discrimination directives: para. 21 of the Gender Equality Directive (recast); para. 26 of the Employment Equality Directive; para. 17 of the Racial Equality Directive.

168. CJEU, C-409/95, Hellmut Marschall v. Land Nordrhein-Westfalen, 11 November 1997.

169. CJEU, C-407/98, Katarina Abrahamsson and Leif Anderson v. Elisabet Fogelqvist, 6 July 2000.

170. CJEU, C-173/13, Maurice Leone and Blandine Leone v. Garde des Sceaux, ministre de la Justice and Caisse nationale de retraite des agents des collectivités locales, 17 July 2014.

171. For further details concerning reasonable accommodation, see Section 5.4.

172. CJEU, C-312/11, European Commission v. Italian Republic, 4 July 2013.

173. ECtHR, Çam v. Turkey, No. 51500/08, 23 February 2016, discussed in Section 4.4.3.

174. Ibid., para. 67.

175. ECtHR, Horváth and Kiss v. Hungary, No. 11146/11, 29 January 2013, see Section 4.4.3. See also ECtHR, Oršuš and Others v. Croatia [GC] No. 15766/03, 16 March 2010.

176. ECtHR, Horváth and Kiss v. Hungary, No. 11146/11, 29 January 2013, para. 127.

177. Ibid., 116.

178. ECtHR, Kurić and Others v. Slovenia [GC], No. 26828/06, 26 June 2012.

179. Ibid., para. 388.

180. ECSR, Confederazione Generale Italiana del Lavoro (CGIL) v. Italy, Complaint No. 91/2013, 12 October 2015, para. 237; ECSR, International Association Autism-Europe v. France, Complaint No. 13/2002, 4 November 2003, para. 52.

181. ECSR, Conclusions XX-1 (2012), Czech Republic.

182. ECSR, Conclusions 2003, Slovenia.

183. ECSR, Conclusions 2012, Russian Federation.

184. ECSR, Conclusions XIX-1 (2008), Czech Republic.

185. ECSR, Conclusions 2007, Statement of Interpretation on Article 15(2).

186. ECSR, The Central Association of Carers in Finland v. Finland, Complaint No. 71/2011, 4 December 2012.

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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