Discrimination (Employment Law)
by Gregor Thüsing and Sally Horler
1. Development
The prohibitions against discrimination in European labour law can be roughly divided into two groups. At the outset, there was the prohibition of discrimination on grounds of particular characteristics of a person. This began with the prohibition of sex discrimination under Art 113 TFEU/ 93 EC, the Dirs 75/117 and 76/207 (amended by Dir 2002/73 and now replaced by Dir 2006/54) and was continued in more recent times with Dir 2002/73 on sex discrimination, the prohibition of discrimination on grounds of race and ethnic origin under Dir 2000/43 and in respect of religion, belief, disability, age and sexual orientation, under Dir 2000/78. Additionally, there is anti-discrimination protection for special employment relationships. Conversely, the discrimination prohibitions of the Temporary Agency Work Directive (Dir 2008/104), the Part-Time Work Directive (Dir 97/81), the Fixed-Term Work Directive (Dir 99/70) and also the Framework Agreement on Telework (2002) are different from the first group in as much as they do not refer to a characteristic or criterion of the worker, but subject particular formations of employment contracts to a rule of non-discrimination. The protection is linked to the contract, not to the worker; this is a considerable development of anti-discrimination protection. The latest developments in discrimination prohibitions in employment law include the Anti-Racism Directive (Dir 2000/43), the Framework Directive (Dir 2000/78), the Revised Equal Treatment Directive (Dir 2002/73) and the Directive on equalization of the sexes (Dir 2004/113). These anti-discrimination directives are based on Art 19 TFEU/13 EC, which was created by the Amsterdam Treaty and constitutes the enabling power for taking broad action to protect against discrimination in not only employment law but also generally to confer power to the Council to ‘take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’.
2. The different forms of unlawful discrimination
The different kinds of discrimination are defined in Art 2(2) of the Dirs 2000/43, 2000/78 and 76/207. Based on this, four forms of discrimination (discrimination (general)) are recognized by the directives.
a) Direct discrimination
Direct discrimination is when a person is treated less favourably than another is, has been, or would be treated in a comparable situation. This applies in equal measure to all reasons for unequal treatment mentioned in the various directives. Discrimination can also occur in the form of an omission. Pursuant to this, unequal treatment of employees in itself does not necessarily constitute discrimination. Different work clothes or job titles for male and female employees are not covered by the discrimination prohibitions so long as the differentiation between the sexes is not a manifestation of attributing different value. The law does not apply when it is undetermined who is being advantaged and disadvantaged.
When disadvantageous consequences can be linked to a forbidden criterion, then this in itself constitutes discrimination based on prohibited grounds. An additional subjective component in terms of intent to discriminate is not necessary. Even if the discriminatory decision on the employer’s part is based on a number of motives, if any one of the motives is based on grounds of sex, age, ethnic origin, etc of the candidate, then that is the decisive factor in determining whether discrimination is at hand.
In order to ascertain whether an employee is being treated differently, the treatment must be compared to that afforded to a comparison group. In principle, the comparison group in employment law encompasses all employees of a single employer. Additionally, there are cases where a comparison is undertaken with employees beyond the boundaries of a single employer, eg when collective agreements cover several companies or a parent company centrally promulgates the work conditions for all its affiliates.
b) Indirect discrimination
Indirect discrimination is doctrinally more difficult to grasp. Article 2(1)(b) of Dirs 2000/43 and 2000/78 states that indirect discrimination occurs when provisions, measures, criteria or practices that appear to be neutral in fact put persons or groups who have one of the discrimination characteristics at a particular disadvantage compared to other persons or groups who do not have one of these discrimination characteristics. This does not apply to cases where an objective reason justifies the unequal treatment and the applied means are necessary and appropriate. The prohibition of indirect discrimination is contained, in essence, in every discrimination prohibition. It is meant to prevent employers from seeking a pretext of differentiating by apparently neutral criteria in order to ultimately undertake the prohibited act.
The protection against indirect discrimination can be a method to protect against discrimination on the basis of other reasons not forbidden by direct discrimination. This is demonstrated quite clearly in decisions of the English courts. As far as claims regarding discrimination against older employees were able to be brought in the United Kingdom in the past, they had to rely on indirect discrimination on the basis of sex (women often had less seniority due to the typical breaks in employment for parenting purposes) or ethnicity (immigrants came to the United Kingdom and into the British employment market at a later time in life and could therefore only achieve minimal seniority) because the former is forbidden by the Sex Discrimination Act, the latter by the Race Relations Act and a prohibition of age discrimination did not exist until 1 October 2006.
c) Harassment
Article 2(3) of Dirs 2000/43 and 2000/78 stipulate that harassment and sexual harassment are deemed to be discrimination when an unwanted conduct related to any of the prohibited grounds takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. Accomplishing protection against harassment by means of the equality principle is quite a new approach for European law and does not make much sense. Intimidation, hostility and insults are to be eliminated not because they constitute a difference in treatment but because it is an infringement upon the dignity and personal rights of the affected employee. These actions do not become more acceptable if the employer were to insult all his employees indiscriminately. Nevertheless, it is possible in theory to subsume such behaviour under the concept of discrimination protection even if this goes beyond the specific concerns of the equality principle. If an employee is insulted because he is black, therein lies less favourable treatment of the black person compared to other employees, precisely because he is black.
d) Instruction to discriminate
Under Art 2(4) of Dirs 2000/43, 2000/78 and 76/207, the instruction to discriminate is also deemed to be discrimination. The instruction must be issued with intent. However, the instructor need not be aware of the unlawfulness of his actions because the statutory prohibition of discrimination comprises all forms of discrimination without the requirement of fault. For this violation of anti-discrimination rules, it is not necessary for the instructed person to actually carry out the discrimination.
3. Justification; exceptions
Article 4(1) of Dirs 2000/43 and 2000/78 stipulates that Member States may provide that a difference of treatment shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. This exception will seldom arise with respect to race and ethnic origin. Section 5(2) of the (now repealed) UK Race Relations Act gave the example that if a black actor is needed for reasons of authenticity, the employer may legitimately choose a black applicant. The exception given in the aforementioned Directives corresponds largely to the standard already applied to sex discrimination, although the wording of Dir 76/207 is somewhat stricter in that unequal treatment of the sexes is only permissible if a particular sex is a ‘determining factor’ for the activity concerned. Article L-122-45 of the Code du travail, the central discrimination prohibition under French law, applies the same standards to sex and race discrimination and the same is true for the UK Race Relations Act and Sex Discrimination Act. Examples with respect to legitimate age discrimination under Art 4(1) include firemen, policemen, air traffic controllers and bus drivers being pensioned off even against their will after a certain age because their physical resilience is crucial for their occupation. More important though are the special provisions on justifiable unequal treatment based on age in Art 6 of Dir 2000/78. Here, a range of expressly specified unequal treatment does not constitute direct discrimination on grounds of age if ‘they are objectively and reasonably justified by a legitimate aim … and if the means of achieving that aim are appropriate and necessary’. Regarding the scope of Art 6 of Dir 2000/78 see the judgment in ECJ Case C-388/07 – Age Concern England [2009] ECR I-1569.
4. Implementation by the Member States
German employment law set out many anti-discrimination provisions long before implementation of the anti-discrimination directives. Sex discrimination has been prohibited since 1980 by § 611(a) Bürgerliches Gesetzbuch (BGB). Further, Art 3(3) Grundgesetz, the German Constitution, guarantees equal treatment for civil servants. Employees in private and public employment have been protected from sexual harassment by the Beschäftigtenschutzgesetz since 1994, and discrimination against disabled persons was counteracted in the year 2001 by § 81(2) Sozialgesetzbuch IX, which not only prohibited discrimination but also stipulated positive action. The implementation of the anti-discrimination directives was achieved by the enactment of the Allgemeines Gleichbehandlungsgesetz (AGG), which came into force on 1 August 2006. It ensures protection against discrimination on grounds of race, ethnicity, sex, religion or belief, disability, age and sexual identity. In the event of violation of the provisions, the employee is entitled to compensation. The implementation by way of the AGG meets the standards laid down by the directives, save for the exceptions made for company pension schemes and dismissal protection. In some respects the implementation even goes beyond the European requirements.
To implement the directives in France, two statutes were passed in 2001: Egalité professionelle entre les femmes et les hommes and the Loi relative à la lutte contre les discriminations which extended the existing discrimination protection through amendment of several provisions of the Code du travail and the Code pénal. French law forbids discrimination under penalty of prison and a fine on grounds of origin, gender, family situation, health, disability, conventions and morals, political opinion, trade union activities and actual or presumed belonging or not belonging to a race, nation or religion in Arts 225-1 to 225-3 Code pénal. The Code du travail, in Art L-1132-1, contains provisions prohibiting discrimination on the aforementioned grounds as well as for reasons of sexual orientation, age, pregnancy, genetic characteristics, religion, physical appearance and surname, which in part goes beyond the requirements of the anti-discrimination directives. An independent administrative authority was also created to monitor compliance with the French anti-discrimination legislation.
In the United Kingdom there existed considerable protection against discrimination before the implementation of the anti-discrimination directives, including the Equal Pay Act, the Race Relations Act, the Sex Discrimination Act and the Disabilities Discrimination Act. These were amended to fully meet the requirements set out by the directives. In addition, the Employment Equality (Religion or Belief) Regulations of 2003 and the Employment Equality (Sexual Orientation) Regulations of 2003 were enacted. Protection against age discrimination was finally achieved by the enactment of the Employment Equality (Age) Regulations of 2006. The UK government has recently adopted the Equality Act 2010 in an attempt to consolidate and harmonize anti-discrimination legislation.
Literature
Bryan Glass, ‘The British Resistance to Age Discrimination Legislation: Is it time to follow the U.S. Example?’ (1995) 16 Comparative Labour Law Journal 491; Lisa Waddington and Mark Bell, ‘More Equal than Others: Distinguishing European Union Equality Directives’ (2001) 38 CMLR 587; Sandra Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145; Herbert Wiedemann, Die Gleichbehandlungsgebote im Arbeitsrecht (2001); Daniel Borrillo, ‘Les instruments juridiques francais et européens dans la mise en place du principe d’égalité et de non-discrimination’ (2002) 56 Revue Française des Affaires Sociales 113; Gregor Thüsing, ‘Following the U.S. Example: European Employment Discrimination Law and the Impact of Council Directives 2000/43/EC and 2000/78/ EC’ (2003) 19 International Journal of Comparative Labour Law and Industrial Relations 187; Katell Berthou, ‘New Hopes for French Anti-Discrimination Law’ (2003) 19 International Journal of Comparative Labour Law and Industrial Relations 109; Katie Wells, ‘The Impact of the Framework Employment Directive on UK Disability Discrimination Law’ (2003) 32 Industrial Law Journal 253; Marie-Thérèse Lanquetin, ‘L’égalité entre les femmes et les hommes: sur la directive 2002/73 CE du 23 septembre 2002’ [2003] Droit Social 315; Jane Johnson, ‘The Employment Equality (Age) Regulations 2006’ (2006) 11 Coventry Law Journal 35; Gregor Thüsing, Europäisches Arbeitsrecht (2008).
