6.1. Shifting the burden of proof – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

The onus is normally on the person bringing the claim to convince the deciding body of the occurrence of discrimination. However, it can be particularly difficult to show that the differential treatment received was based on a particular protected characteristic. This is because the motive behind differential treatment often exists only in the mind of the defendant. Accordingly, claims of discrimination are most often based on objective inferences related to the rule or practice in question. Put otherwise, the plaintiff must show that the only reasonable explanation for the difference in treatment is the protected characteristic of the victim, such as sex or race. The principle applies equally in cases of direct or indirect discrimination.

Because the alleged defendant is in possession of the information needed to prove a claim, non-discrimination law allows the burden of proof to be shared with the alleged defendant (the shift of the burden of proof). Once the person alleging discrimination established a presumption of discrimination (prima facie discrimination), the burden then shifts to the defendant, which has to show that the difference in treatment is not discriminatory. This can be done either by proving that there was no causal link between the prohibited ground and the differential treatment, or by demonstrating that although the differential treatment is related to the prohibited ground, it has a reasonable and objective justification. If the alleged discriminator is unable to prove either of the two, they will be liable for discrimination.

The principle of the sharing of the burden of proof is well entrenched in the law of the EU[651]and ECHR. The ECSR has also acknowledged that in matters of discrimination, the burden of proof should not rest entirely on the complainant, but should be the subject of an appropriate adjustment.[652]

Shared burden of proof: the claimant needs to bring sufficient evidence to suggest that discriminatory treatment may have occurred. This will raise a presumption of discrimination, which the alleged defendant then has to rebut.

Under EU law, the preamble of the Directive 2006/54/EC[653] emphasises that “[t]he adoption of rules on the burden of proof plays a significant role in ensuring that the principle of equal treatment can be effectively enforced. As the Court of Justice has held, provision should therefore be made to ensure that the burden of

proof shifts to the respondent when there is a prima facie case of discrimination, except in relation to proceedings in which it is for the court or other competent national body to investigate the facts.” The obligation to introduce the shifted burden of proof into the domestic non- discrimination regulations of EU  Member States also appears in the Racial Equality Directive,[654] the Employment Framework Directive[655] and the recast Gender Equality Directive.[656]

Under ECHR law, the sharing of the burden of proof has been explained through ECtHR case law. Along with other regional and global human rights protection mechanisms, ECtHR case law has adopted the sharing of the burden of proof more generally to prove claims of human rights violations. The practice of the ECtHR is to look at the available evidence as a whole, out of consideration of the fact that it is the state that often has control over much of the information needed to prove a claim. Accordingly, if the facts as presented by the claimant appear credible and consistent with the available evidence, the ECtHR will accept them as proved, unless the state is able to offer a convincing alternative explanation.

In the ECtHR’s words it accepts as facts those assertions that are “supported by the free evaluation of all evidence, including such inferenc- es as may flow from the facts and the parties’ submissions… [P]roof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the ECHR right at stake.”[657]

Example: In Timishev v. Russia,[658] the claimant alleged that he was prevented from passing a checkpoint into a particular region because of his Chechen ethnic origin. The ECtHR found this to be corroborated by official documents, which noted the existence of a policy to restrict the movement of ethnic Chechens. The state’s explanation was found unconvincing because of inconsistencies in its assertion that the victim left voluntarily after being refused priority in the queue. Accordingly, the ECtHR accepted that the claimant had been discriminated against based on his ethnicity.

Under EU law, the person who claims to have been discriminated against must initially establish the facts from which it may be presumed that there has been discrimination. The assessment of the facts from which it may be presumed that there has been discrimination is a matter for national judicial bodies, in accordance with national law or practice.

Example: In Susanna Brunnhofer v. Bank der österreichischen Postsparkasse AG,[659] the claimant alleged sex discrimination because she was paid less than a male colleague who was on the same pay grade. The CJEU stated that it was for the claimant to prove firstly, that she was receiving less pay than her male counterpart, and secondly that she was performing work of equal value. This would be sufficient to raise a presumption that the differential treatment could only be explained by reference to her sex. It would then fall to the employer to disprove this.

Example: In Patrick Kelly v. National University of Ireland (University College, Dublin),[660] the claimant applied for a vocational programme at University College Dublin (UCD) but his application was turned down. The claimant believed that he was better qualified than a female candidate that had been offered a place. He argued that he had not been granted the training because of sex discrimination and sought disclosure of the other applications to establish the facts. UCD disclosed only redacted versions.

The CJEU held that neither the directive on the burden of proof in sex discrimination cases (97/80/EC) nor the Equal Treatment Directive (76/207/ EEC) generally entitled a vocational training applicant to access information about the qualifications of the other applicants based on a suspicion of discrimination, and that any disclosure would be subject to EU rules on the confidentiality of personal data. However, it was for the national court to decide whether the aim of Council Directive 97/80/EC[661] required a disclosure of such facts in individual cases.

Example: In Galina Meister v. Speech Design Carrier Systems GmbH,[662] the claimant’s applications for a job as a software developer were rejected. Being of the view that she fulfilled the requirements of the post, she claimed that she suffered less favourable treatment than another person in a comparable situation on the grounds of her sex, age and ethnic origin. The CJEU held that, in accordance with EU legislation (the Racial Equality Directive (2000/43/EC), the Employment Equality Directive (2000/78/EC) and the Gender Equality Directive (recast) (2006/54/EC), workers who meet the requirements stated in the vacancy notice but have their job applications rejected are not entitled to be given any reasons whether the position was filled by a different candidate at the end of the recruitment process. However, the refusal to provide such information can be considered as one of the elements presuming discrimination in that recruitment process.

Under the ECHR, the applicant similarly bears the burden of proof for facts from which it may be presumed that there has been discrimination.

Example: In Virabyan v. Armenia,[663] the applicant had been arrested on suspicion of carrying a firearm and subjected to ill treatment allegedly on account of his political opinion. In arguing his case, the applicant relied on various reports detailing the political situation in Armenia and the widespread suppression of political opposition carried out by the government. He also submitted that there was no credible evidence supporting the suspicion on which he had been arrested. He had been questioned solely about his participation in demonstrations and his role in encouraging others to participate. The ECtHR found that the applicant’s arrest had been politically motivated but concluded that this fact was not sufficient to conclude that the ill treatment itself had also been inflicted for political reasons. In particular, the ECtHR stressed that there was no objective way to verify the applicant’s allegations. There were other possible explanations of the violent behaviour of the police officers: revenge for the injury that the applicant had inflicted on one of them, the confrontation between the applicant and the police officers, or generally for reasons of police brutality. The ECtHR concluded that it could not be established beyond reasonable doubt that political motives had played a role in the applicant’s ill treatment. In contrast, the evidence in the case was sufficient for the ECtHR to establish that the authorities had failed to investigate whether or not discrimination may have played a role in the applicant’s ill treatment. The government should have proved that it had collected and secured the evidence, explored all practical means of discovering the truth and delivered fully reasoned, impartial and objective decisions, without omitting suspicious facts that might have been indicative of politically induced violence. As the authorities had not examined the numerous inconsistencies and other elements pointing at the possible politically motivated nature of that measure, and no conclusions had been drawn from the available material, the ECtHR could confirm that there had been a violation of Article 14 of the ECHR taken in conjunction with Article 3 in its procedural limb.

It is important to keep two issues in mind. Namely, it is national law that will determine what kind of evidence is admissible before national bodies, and this may be stricter than the rules used by the ECtHR or CJEU. Furthermore, the rule on the shift of the burden of proof will not normally apply in cases of criminal law where the state is prosecuting the defendant for a hate crime. This is partly because a higher standard of proof is needed to establish criminal liability, and partly because it would be difficult to require a defendant to prove that they did not hold a racist motive, which is entirely subjective.[664]

Where an applicant alleging direct discrimination established a presumption of discrimination, the alleged defendant can rebut the presumption in two ways. They may either prove that the claimant is not actually in a similar or comparable situation to their ‘comparator’, as discussed in Section 2.2.3, or that the differential treatment is not based on the protected ground, but other objective differences, as discussed in Section 3.2. If the defendant fails to rebut the presumption, they will have to raise justification for differential treatment, showing that it is an objectively justified and proportionate measure. Under the ECHR, the objective justification test is available, whereas under EU law difference in treatment can be justified only in certain cases.[665]

Under the ECHR, where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent state, which must show that the difference in treatment is not discriminatory.[666] Under EU law, in the case of indirect discrimination, the defendant has to prove that the adopted measure, law or practice is appropriate and necessary to achieve those legitimate aims and the disadvantages caused were not disproportionate to the objectives pursued.[667]

Example: In Susanna Brunnhofer v. Bank der österreichischen Postsparkasse AG,[668] the CJEU offered guidance on how the employer might rebut the presumption of discrimination. Namely, by showing that the male and female employees were not actually in a comparable situation because they performed work which was not of equal value. This might be the case if their jobs involved duties of a substantially different nature. Moreover, by showing that objective factors, unrelated to sex, explained the difference in pay. This might be the case if the male employee’s income was being supplemented by travel allowances owed by virtue of him having to commute over a long distance and stay in a hotel during the working week.

Example: In Feryn,[669] the CJEU found that the advertisements and statements made by the defendant gave rise to a presumption of direct discrimination. However, the CJEU also said that the alleged defendant could rebut this presumption if he could prove that recruitment practices did not actually treat non-whites differently – for instance, by showing that non-white staff were in fact routinely recruited.

Example: In Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării,[670] Accept, an NGO promoting and protecting LGBT rights in Romania, complained that homophobic public statements had been made by a patron of a professional football club. In particular, it referred to his statement given in an interview that he would never hire a homosexual player. The CJEU observed that, although the patron did not have a legally binding capacity in recruitment matters, he publicly claimed to play an important role in the management of the football club. In this situation, the patron’s statements could have given rise to a liability for that club. For this reason, the burden of proof that it did not have a discriminatory recruitment policy could have been shifted onto the football club. However, The CJEU stressed that in this context it was not necessary to prove that persons with a specific sexual orientation had been recruited in the past, because it could have interfered with the right to privacy of the persons concerned. It would have been sufficient for the club to have distanced itself from the discriminatory public statements and proved the existence of express provisions in its recruitment policy aimed at ensuring compliance with the principle of equal treatment.

Similarly, the principle of sharing of the burden of proof applies in international law. An example can be found in jurisprudence of the Committee on the Elimination of Racial Discrimination.[671] A Slovakian national of Roma origin filed an application for the position of a teaching assistant. Her candidacy was refused and a person less qualified and less experienced than the petitioner was hired. The Committee on the Elimination of Racial Discrimination found a violation of the State Party’s obligation to guarantee equality in respect of the right to work without distinction as to race, colour, national or ethnic origin. This was because the state had not satisfactorily replied to the petitioner’s allegations and did not provide persuasive arguments to justify the differential treatment of the petitioner when disregarding her job application. The Committee considered that the courts’ insistence that the petitioner prove discriminatory intent was inconsistent with the Convention’s prohibition of conduct having a discriminatory effect, and also with the procedure of shifted burden of proof introduced by the State Party. Since the State Party has adopted such a procedure, its failure to apply it properly amounts to a violation of the petitioner’ s right to an effective remedy, including appropriate satisfaction and reparation for the damage suffered.

The Committee on Economic, Social and Cultural Rights pointed out that “where the facts and events at issue lie wholly, or in part, within the exclusive knowledge of the authorities or other respondent, the burden of proof should be regarded as resting on the authorities, or the other respondent, respectively.”[672]

The CERD also recommends to State Parties to “[r]egulate the burden of proof in civil proceedings involving discrimination based on race, colour, descent, and national or ethnic origin so that once a non-citizen has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for the differential treatment”.[673]

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651. In addition to the cases referred to below, see: Racial Equality Directive, Art. 8; Employment Equality Directive, Art. 10; Gender Equality Directive (recast), Art. 19; Gender Goods and Services Directive, Art. 9.

652. ECSR, Associazione Nazionale Giudici di Pace v. Italy, Complaint No. 102/2013, 5 July 2016, para. 73; ECSR, SUD Travail Affaires Sociales, SUD ANPE and SUD Collectivité Territoriales v. France, Complaint No. 24/2004, 8 November 2005; ECSR, Mental Disability Advocacy Centre (MDAC) v. Bulgaria, Complaint No. 41/2007, 3 June 2008.

653. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

654. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.

655. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

656. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

657. ECtHR, Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005, para. 147. This is repeated in the case of ECtHR, Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005, para. 39 and ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007, para. 178.

658. ECtHR, Timishev v. Russia, Nos. 55762/00 and 55974/00, 13 December 2005, paras. 40-44.

659. CJEU, C-381/99, Susanna Brunnhofer v. Bank der österreichischen Postsparkasse AG, 26 June 2001, paras. 51-62.

660. CJEU, C-104/10, Patrick Kelly v. National University of Ireland (University College, Dublin), 21 July 2011.

661. Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex, repealed by Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

662. CJEU, C-415/10, Galina Meister v. Speech Design Carrier Systems GmbH, 19 April 2012.

663. ECtHR, Virabyan v. Armenia, No. 40094/05, 2 October 2012. For detailed description of the case, see Section 5.11.

664. For the approach of the ECHR to the reversal of the burden of proof in the context of racist violence see ECtHR, Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005, paras. 144-159. EU discrimination legislation does not require the reversal of the burden of proof to be applied in the context of criminal law.

665. See Sections 3.1 and 3.2.

666. ECtHR, D.H. and Others v. the Czech Republic [GC], No. 57325/00, 13 November 2007, para. 189.

667. CJEU, C-83/14, “CHEZ Razpredelenie Bulgaria” AD v. Komisia za zashtita ot diskriminatsia [GC], 16 July 2015, para. 128.

668. CJEU, C-381/99, Susanna Brunnhofer v. Bank der österreichischen Postsparkasse AG, 26 June 2001.

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

670. CJEU, C-81/12, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, 25 April 2013.

671. UN, CERD (2015), Communication No. 56/2014, CERD/C/88/D/56/2014, 4 December 2015.

672. UN, Committee on Economic, Social and Cultural Rights (2009), General comment No. 20: Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights), UN Doc. E/C.12/GC/20, 2 July 2009.

673. UN, CERD (2005), General Recommendation No. 30 on discrimination against non-citizens, para. 24.

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

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