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Definition of Key Concepts. Professor Erika Szyszczak University of Leicester and Littleton Chambers. Key Concepts. Direct Discrimination Indirect Discrimination Sexual Harassment Harassment. Direct Discrimination. Overt and intentional - PowerPoint PPT Presentation
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Definition of Key Concepts
Professor Erika SzyszczakUniversity of Leicester and Littleton
Chambers
Key Concepts
Direct Discrimination
Indirect Discrimination
Sexual Harassment
Harassment
Direct Discrimination Overt and intentional Less easy to identify since outlawed
perpetrators likely to resort to covert means to exercise choices but see Draehmpaehl , Commission v Spain, Firma Feryn, Commission v Greece
Can it be justified/exempted? Problem of “multiple discrimination”
(“inter-sectional discrimination”)
EC Law Legislation Article 141 EC Article 13 EC Directive 97/80/EC (Burden of Proof) Directive 2000/78/EC (Employment Equality
Directive) Directive 2002/73 (Gender Employment Directive) Directive 2004/113 (Gender Goods and Services
Directive) Directive 2006/54/EC (Recast Gender Employment
Directive)
Article 14 and Protocol 12 ECHR Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language,religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Symbiotic Relationship
Influenced by international and regional law (ECHR);
Influenced by national law and case law
Ostrava
EU law and policy
ECHR
National policy, campaignscases
Definition
Complainant must show that s/he has been
“treated less favourably than another is, has been, or would be treated in a comparable situation.”
Questions to ask: Why?
Who is the comparator?
Problems How to discover the reasons for a
decision/behaviour “Equal misery” outcome
Some case law examples P v S and Cornwall CC
Richards v Secretary of State for Work and Pensions
Grant v South-West Trains
Dekker v VJV Centrum
Schnorbus v Land Hessen
No comparator
Issue in equal pay claims where there is occupational crowding (jobs which are typically female/male);
Different work situations, especially where different employers for the same job
Age Discrimination
What is a sufficient difference in age for the basis of a comparison?
“Don’t trust anyone over the age of 30”
Now 21?
Stereotyping
Roma: R (ERRC) v Immigration Officer at Prague Airport and another
Gender roles: bans on mine working/night work
Article 4, Burden of Proof: Directive 97/80/EC
National law and procedures Complainant to prove a prima facie
case When does the trigger occur to
shift the burden of proof? Use of statistical information
Justifications/Exemptions for Direct Discrimination
Can it be justified?
Lustig-Prean and Beckett v UK
Timishev v Russia
Age Discrimination Article 6(1) Employment Equality
Directive
Conditions:Context of national law, objectively and reasonably justified by a legitimate aim:Legitimate employment policy, labour market and vocational training objectives.
Means: appropriate and necessary
Mangold
Tension between employment policy and age discrimination/fundamental right
Age Concern (UK)
Genuine Occupational Requirements
Where a job cannot be done effectively an actor to play Nelson Mandela?
Earlier approach: Where the sex of the worker is a determining
factor: models for clothes, service care in households, nursing care, legal provisions.
Advice work for ethnic/women’s/gay organisations?
Examples
Maternity, religion
Headscarf debate
Use of Proportionality Johnston v Chief Constable RUC
Kreil v Germany
Sirdar v The Army Board and Secretary of State for Defence
Dory v Germany
New Approach
Article 4 (1) Racial Equality Directive
Article 2(6) Gender Employment Directive
Case – by case assessment
Indirect Discrimination
Use of neutral provision, practice, rule would persons in the protected class at a particular disadvantage compared with other persons unless the provision/practice/rule can be justified by a legitimate aim and the means of achieving that aim are appropriate and necessary
Examples
Part-time work, length of service, working hours, qualifications, training
Bilka-Kaufhaus
Enderby
Proof
Statistical evidence
Finding the right pool of comparison
Reversal of the burden of proof
Objective Justification of Indirect Discrimination
Difference between Member State policy justifications and non-State justifications
Kachelmann
HarassmentSexual harassment:
insults, remarks, inappropriate comments (dress, physique, age family situation,, condescending paternalist attitude undermining dignity, unwelcome invitations, explicit/implicit requests, threats, lascivious looks/gestures, unnecessary physical contact …
ILO Committee of Experts 1988 General Survey
Broader coverage Articles 2, 7, 9, 8 and 10 of Directive 2000/43/EC
Seen as discrimination per se
Moved beyond workplace sexual harassment to cover:
vocational guidance/training, membership of trade unions, social protection, education, access to, and supply of, goods and services (including
housing).
Examples
“Hostile” working environment Bullying Blackmail Psychological risks Exposure to offensive
material/language France and Belgium: “moral
harassment”
Who is Liable?
Problem of vicarious liability of the employer
Acts of third parties - for eg: patients and doctors/nurses, lecturers and students, employees and customers
Coleman
Mother of a disabled child Subject to harassment by
employer and co-workers on return from maternity leave, not given flexible working
Direct discrimination by connection to the disability
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