6. Procedural issues in non-discrimination law – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

EU Issues covered CoE
Employment Equality Directive

(2000/78/EC), Art. 10

Sharing of the

burden of proof

ECHR, Art. 3 (prohibition of torture), Art. 14 (prohibition of discrimination)

ECtHR, Virabyan v. Armenia, No. 40094/05, 2012

ECtHR, Timishev v. Russia, Nos. 55762/00 and 55974/00, 2005

Racial Equality

Directive (2000/43/EC), Art. 8

Gender Goods and Services

Directive (2004/113/EC), Art. 9

Gender Equality Directive

(recast) (2006/54/EC), Art. 19

CJEU, C-81/12, Accept v. Consiliul Naţional pentru Combaterea

Discriminării, 2013

CJEU, C-415/10, Meister v. Speech Design Carrier Systems

GmbH, 2012

CJEU, C-104/10, Kelly v. National

University of Ireland, 2011

CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma

Feryn NV, 2008

CJEU, C-381/99, Brunnhofer

v. Bank der österreichischen

Postsparkasse AG, 2001

CJEU, C-423/15, Kratzer v. R+V Allgemeine Versicherung AG, 2016

CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma

Feryn NV, 2008

Circumstances irrelevant for the finding of discrimination ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 2007
CJEU, C-527/13, Cachaldora Role of statistics ECtHR, Di Trizio v. Switzerland, No. 7186/09, 2016

ECtHR, Abdu v. Bulgaria, No. 26827/08, 2014

ECtHR, Opuz v. Turkey, No. 33401/02, 2009)

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

Fernández v. INSS and TGSS

[GC], 2015

and other data
CJEU, Joined cases C-4/02 and
C-5/02, Schönheit v. Stadt
Frankfurt am Main and Becker v.
Land Hessen, 2003
CJEU, C-167/97, Regina
v. Secretary of State for
Employment, 1999
Employment Equality Directive, Art. 17

Racial Equality Directive, Art. 15

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

CJEU, C-407/14, Arjona Camacho

v. Securitas Seguridad España, SA, 2015

CJEU, C-81/12, Accept v. Consiliul Naţional pentru Combaterea

Discriminării, 2013

Enforcement of non- discrimination law ECHR, Art. 6 (right to fair trial), Art. 8 (right to respect for private and family life), Art. 14 (prohibition of discrimination)

ECtHR, Sidabras and Others v. Lithuania, No. 50421/08 and 56213/08, 2015

ECtHR, García Mateos v. Spain, No. 38285/09, 2013

ECtHR, Hulea v. Romania, No. 33411/05, 2012

Key points

  • The initial burden rests with the complainant to establish evidence that suggests that discrimination has taken place.
  • Statistical evidence may be used to help give rise to a presumption of discrimination.
  • The burden then shifts to the alleged defendant who must provide evidence that shows that the less favourable treatment was not based on one of the protected grounds.
  • The presumption of discrimination can be rebutted by proving: either that the victim is not in a similar situation to their ‘comparator’; or that the difference in treatment is based on some objective factor, unconnected to the protected ground. If the defendant fails to rebut this presumption they may still attempt to justify the differential treatment.

Discrimination does not tend to be manifested in an open and easily identifiable manner. Proving direct discrimination is often difficult even though, by definition, the differential treatment is ‘openly’ based on a characteristic of the victim. As discussed in Chapter 2, the ground of differential treatment is often either not expressed or superficially related to another factor (such benefits conditioned on an individual being retired, which are connected to age as a protected ground). In this sense, cases where individuals openly declare their basis for differential treatment as one of the protected grounds are relatively rare. An exception to this case may be found in the Feryn case,650 where the owner of a company in Belgium declared, through advertisements and orally, that no ‘immigrants’ would be recruited to work for him. The CJEU found that this was a clear case of direct discrimination on the basis of race or ethnicity. However, the defendants will not always declare that they are treating someone less favourably than others, nor indicate their reason for doing so. A woman may be turned down for a job and told that she is simply ‘less qualified’ than the male candidate who is offered the job. In this situation, the victim may find it difficult to prove that she was directly discriminated against because of her sex.

To address the difficulty of proving that differential treatment has been based on a protected ground, European non-discrimination law allows the burden of proof to be shared. Accordingly, once the claimant can show facts from which it can be presumed that discrimination may have occurred, the burden of proof falls on the defendant to prove otherwise. This shift in the burden of proof is particularly helpful in claims of indirect discrimination where it is necessary to prove that particular rules or practices have a disproportionate impact on a particular group. To raise a presumption of indirect discrimination, a claimant may need to rely on statistical data that proves general patterns of differential treatment. Some national jurisdictions also accept evidence generated through ‘situation testing’.

______________

650 CJEU, C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 10 July 2008.

Contents

6. Procedural issues in non-discrimination law

6.1. Shifting the burden of proof

6.2. Circumstances irrelevant for the finding of discrimination

6.3. Role of statistics and other data

6.4. Enforcement of non-discrimination law

Hits: 4

Leave a Reply

Your email address will not be published.

*

code