THE CHALLENGES POSED BY THE EU ANTI-DISCRIMINATION DIRECTIVES
PAUL LAPPALAINEN JK,
JD
Legal Advisor for the
Swedish Integration Board
paul.lappalainen@integrationsverket.se
Working paper to be
presented at the Sixth International Metropolis Conference
November 26-30 2001
Workshop on
Anti-discrimination legislation; a comparative study
November 27, 2001,
Rotterdam, the Netherlands
For many years, concerning race discrimination, much of
Europe has seemed to be following the concept that combating discrimination and
changing prejudicial ideas can only take place through the changing of
attitudes. Earl Warren, Chief Justice of the US Supreme Court during racially
charged 1950s and 60s had the following comments concerning the thinking of
that time period.
. There was . an invidious view which is now held by many: you can.
t wipe out racial discrimination by law, only through changing the hearts
and minds of men.. .
. Warren disdained that as . false credo. True, prejudice
cannot be wiped out, but infliction of it upon others can.. .
The focus in the US can be said to be on changing
discriminatory behaviour. Discrimination is an act that carries with it certain
potential economic as well as other risks. Civil damages are one risk faced by
employers and merchants. The loss of public contracts is another if companies
discriminate or fail to actively promote affirmative action.
Introduction
In connection with the EU anti-discrimination directives
adopted last year, the Member States are faced with a number of strategic
challenges in the the implementation process. In this regard, I present a
number of considerations based on my comparative assessment of
anti-discrimination laws in different countries.
This is carried out through a presentation of how various
countries have dealt with discrimination law during the past few decades. In
connection with this I also present some suggestions concerning the direction
which I have concluded that the Member States and Accession States take into
consideration in the implementation process.
A brief background concerning anti-discrimination laws in
Europe
The adoption of the directives was major political milestone
in European history. Up until then there was no commonly agreed minimum
standard for the EU concerning legal protection against race discrimination.
Nor were other areas particularly well covered except concerning gender
discrimination in the workplace. Not only was there not a common minimum
standard concerning protection against race discrimination, but at least workplace
discrimination was effectively covered by law in only a handful of MS.
England was the only country that has had comparatively
effective civil legislation concerning workplace discrimination on the ground
of race or ethnicity since the 1960s. The Netherlands, Sweden and Ireland did
not adopt their relatively modern laws until the 1990s. The other MS basically
used criminal law (France) or did not specifically regulate workplace
discrimination related to race at all (Germany). There was often an assumption
that general constitutional principles or more general work-related regulations
provided protection against discrimination, which thus rendered more specific
race and ethnic discrimination laws unnecessary. Another common European thread
has been the idea that prejudice and discrimination (at least in relation to
grounds other than gender), if they are a European phenomenon, cannot be
changed through laws. At best they can be approached through education and the
application of general principles of equality.
Apparently the European view is changing (at least within
the European Union). The EU has recently adopted two directives
that require the establishment and maintenance of a minimum level of protection
against discrimination on a variety of grounds.
This means that within a limited time period basically all
of the EU Member States (MS) as well as the Accession States must either
substantially revise their current laws or introduce new laws in order to
comply with the requirements imposed by the EU anti-discrimination directives
adopted last year.
A minimum standard for counteracting discrimination
The Race Directive lays the foundation for a minimum level
of protection against race and ethnic discrimination both in working life as
well as in other fields of social life. The Equality Directive requires the
establishment of a minimum standard of protection against discrimination only in working life on the basis of
religion, disability, age and sexual orientation. It should also be noted that
other EU directives have previously established a similar minimum level of
protection against gender discrimination in working life.
The Race Directive requires the establishment of legal protection
against race discrimination in the workplace and in broad fields outside
the workplace, such as the provision of goods and services. The directive
requires the adoption of a shifting of the burden of proof, at least in
civil cases, as well as . effective, proportionate and dissuasive sanctions.
concerning cases where discrimination is established.
The Equality Directive has the same basic minimum
requirements as the Race Directive, except that it is limited to discrimination
in working life.
One interesting idea to note is that while the EU already
requires a minimum level of protection against gender discrimination in working
life, a new gender directive is being developed which will presumably taken
into account the various anti-discrimination initiatives that today are limited
to the Race Directive.
The challenges posed
What do the two directives require of the MS as well as the
accession states?
Various issues arise as a result of the directives . for example
for legislators, NGOs and civil society in general. The time frame is naturally
one pressure. Hopefully though there will be an interest in creating not
only laws at the Member State level that fulfil the EU. s minimum
requirements, but laws that effectively counteract discrimination on the basis
of irrelevant factors.
In other words laws that clearly establish and enforce the basic human right to
avoid discrimination.
The questions that need to be posed are to some extent
dependent on each other. In particular the answers are interdependent. The
analysis below will present some examples of the answers currently in
existence. However, it should be noted that hate speech and other types of hate
crimes have been excluded from this discussion.
The challenges posed by the combination of the various EU
directives can be formulated in the following manner:
1
Should criminal law or civil law be used to regulate
discrimination?
2
Should a comprehensive law covering all grounds be adopted or
separate laws covering each ground?
3
Should the law or laws cover all areas of discrimination (i.e. working life,
goods and services, etc), or should different laws be used?
4
Should comprehensive enforcement bodies or separate bodies be
introduced?
Naturally, there are many other questions that can be posed
but they will presumably fit within the framework of the answers to the above
questions.
Criminal law or civil law?
I have concluded that the problems related to the use of
criminal law as a deterrent to discrimination, as well as certain issues
related to civil law, point to the conclusion that the use of civil law will be
the more effective alternative.
Much of continental Europe has focused on the use of criminal
law as a means for countering ethnic discrimination. There are a number
of examples. The Scandinavian countries ban race and ethnic discrimination by
merchants in the provision of goods and services, while using civil labour law
to ban ethnic discrimination in the workplace. France is the purest example of
the use of criminal law. France. s penal code bans discrimination on all
grounds (including race and gender) and covers working life as well as other
areas of social life.
One advantage that is asserted with the use of criminal law in
this situation is that a clear . moral. stand is taken by society. Another is
that the public authorities take on the responsibility of investigating and
prosecuting the crimes, which means that the individual avoids the personal
burden and cost of pursuing the case through the legal system. The high burden
of proof though, in criminal cases, is seen as a negative aspect.
As a practical matter it can be pointed out that the 20
years of use of the criminal law approach in Europe has led to few convictions.
In Sweden for example there have only been a handful of convictions . 1 to 2
per year at most. In order to obtain a conviction it is basically necessary
that the accused admits the elements of the crime. This is one of the factors
that has led to substantial dissatisfaction with the current law. The situation
does not seem to be any different in other countries using criminal law.
Convictions related to discrimination are rare. This makes it reasonable to
question the effectiveness of such laws . at least assuming that discrimination
is an ongoing issue in these countries.
There seems to have been little thought given to the idea
that discrimination was or could be a common and widespread problem that did
not have to be based on a clearly understood ideology of superiority concerning
race or ethnicity. Discrimination on a broad scale was assumed to occur in places
other than Europe. South Africa and the US were two examples that were focused
on in the 60s and 70s.
In examining the use of criminal law, another factor that
can be examined is why criminal law was used in the first place to counter
discriminatory behaviour. It seems that many European countries, when these
laws were first adopted were fulfilling the requirements of the International
Convention on the Elimination of All Forms of Discrimination rather than
dealing with a common European problem. At worst it was expected that a few ideologically
motivated individuals might be the focus of the law.
As the focus was at most on a small group, the establishment
of the laws at this time was more an issue of establishing a moral statement, a
symbolic law, that clarified the intent of the society, without intending to
have an effect on more deeply rooted behaviour patterns. They were not seen as
a problem at the time.
Civil law has been the main method for the common law countries to
counteract discrimination. Great Britain and Ireland are the main European examples.
The same can be said for the US, Canada, Australia and New Zealand. There
are government authorities that provide some assistance but it is still
up to the individual to pursue . her. or . his. case. The possible costs
are one negative aspect of this approach. The lower burden of proof in civil
law is seen as one of the benefits. The idea being that it is easier to make a
moral statement if there is at least a risk that judicial decisions will be issued
that clearly find that discrimination occurred. In such cases it is also easier
to allow for the fact that discrimination based on prejudice is a civil wrong
that is amenable to compromise and conciliation. The discriminated person also
has the ability and right to compromise. This type of possibility is not
usually available in criminal law.
The practical results achieved in using the civil law
approach seem to indicate that it is preferable, particularly if governments
undertake various measures to help ensure that the liability of enforcement is
not placed entirely on the individual. It seems that more cases result in
judgments for the target of discrimination using the civil law approach. There
also seems to be a greater involvement by NGOs in the bringing of
discrimination cases. It is much easier for a motivated target of
discrimination to bring a civil law case than a criminal law case. The possibility
for individuals or NGOs to bring cases can also be seen as a form of
empowerment.
A civil law approach also avoids the suspicion that many
ethnic minorities have in Europe that the police and prosecutors are simply not
on their side. This is one reason why many immigrants claim that they refrain
from filing discrimination complaints with the police regardless of the proof
they may have.
Even beyond the clear problems that police and prosecutors have with the
high burden of proof in criminal law, there are presumably problems with the
. criminal perpetrator. . The persons accused of discrimination seldom
fit into the normal police picture of a . common. criminal. Owners of
restaurants, stores and banks are seldom looked as criminals by the law
enforcement authorities. This in itself may make it harder for police and
prosecutors to see the crimes committed.
The difficulty in seeing the crime may also be related to the
situation where one form of discrimination (concerning the provision of goods
and services by merchants) is regulated by criminal law while employment discrimination
is regulated by civil law. This is the situation in Sweden. If morality
is the issue, why is discrimination by a merchant in the choice of his or
her customers more morally reprehensible than discrimination in regard to the
same merchant. s employees.
In the recent past the example of the Netherlands 1994 Equal Treatment
Act is quite interesting. The Netherlands had been using the continental
European criminal law model. Seemingly though it was decided that the
criminal law approach was not working. The choice was then made to examine the
civil law approach as a more effective model. Canada. s Human Rights Act
ended up having a substantial influence on the structure of the Equal Treatment
Act. It seems that a pragmatic assessment of effectiveness was the deciding
factor and not legal tradition.
Comprehensive law
covering all grounds or separate laws?
Basically two paths for laws have been chosen in dealing
with discrimination. Some countries have a single law that covers all the
grounds of discrimination, while others have separate laws for each ground of
discrimination.
Sweden, for example, bans discrimination in working life
through the use of four different laws covering the grounds of gender, race and
ethnicity, disability and sexual orientation. Gender discrimination in working
life has been banned for about 20 years. The coverage given to the other
grounds is more recent. The first law allowing for civil damages in race
discrimination cases in working life went into effect in 1994. A more modern
and effective law was adopted in 1999. At the same time relatively similar laws
were adopted concerning discrimination in working life based on disability and
sexual orientation. The gender equality act was thereafter revised at least in
part to bring it into line with the improvements that had been introduced into
the 1999 anti-discrimination laws. One of the reasons that the legal approach
in Sweden has been somewhat confusing and inconsistent is the assertion that
the various discrimination grounds are so qualitatively different that
different legal mechanisms should be employed, or at least that a law for one
ground cannot serve as a model for another. This has applied in particular to
gender discrimination. However, this tendency seems to be changing in favor of
a more common legal approach.
In England, a . separate. approach is also used in that there
are three different laws covering the grounds of race, gender and disability.
On the other hand it is basically assumed that the same legal principles should
apply, unless there are convincing reasons for a deviation. For example, it was
necessary to establish a slightly different measure of discrimination
concerning disability in order to ensure the effectiveness of the law.
Other countries use a comprehensive approach.
The 1994 Equal Treatment Act of the Netherlands uses a
comprehensive approach to counteract discrimination on the grounds of religion,
belief, political opinion, race, sex, nationality, heterosexual or homosexual
orientation or civil status.
The Irish Employment Equality Act of 1998 and the Equal
Status Act of 2000 outlaw discrimination in employment, vocational training,
advertising, collective agreements, the provision of goods and services and
other opportunities to which the public generally have access on nine distinct
grounds. These are gender, marital status, family status, age, disability,
race, sexual orientation, religious belief and membership of the Traveller Community.
It can be pointed out that the Irish Act covers all of the grounds mentioned in
the EU directives plus a few more.
Canada. s Human Rights Act is another example of a law that covers
all the grounds covered in the EU directives. The Act states that the .
prohibited grounds of discrimination are race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, marital status, family status,
disability and conviction for which a pardon has been granted..
It seems that a comprehensive law covering all grounds has a
number of practical advantages. All the grounds are given the same dignity once
they are included in the same act. Precedents that are set concerning one
ground will be easier to apply concerning the other grounds. There may also be
an advantage for the society as a whole, an educational advantage, in that the
law might basically indicate that discrimination on whatever ground is a
violation of human rights. If the laws are separated into different grounds,
there may be more of a focus on the particular law constituting a benefit to a
particular group (in Sweden - women, immigrants, the disabled and homosexuals)
as opposed to being a question of basic human rights. Naturally certain
interest groups may feel that their interests will lose out with a combined
approach. However, this may be less of a problem if the combined approach
itself leads to a more effective counteracting of discrimination concerning all
of the targets of discrimination at issue.
Coverage of all areas
such as working life and other areas of social life in the same law or separate
laws?
There are a number of approaches here as well.
In Sweden, discrimination in working life is covered by one
set of laws related to the different grounds (gender, race, disability and
sexual orientation). On the other hand, discrimination by merchants in the
provision of goods and services on the basis of race and homosexuality is
banned in § 16:9 of the Penal Code. This provision also covers discrimination
by public authorities. (However, gender and disability discrimination are not
covered by the Penal Code.)
The 1998 Irish Employment Equality Act and the 2000 Equal
Status Act outlaw discrimination in employment, vocational training,
advertising, collective agreements, the provision of goods and services and
other opportunities to which the public generally have access on nine distinct
grounds. Only civil law is used but a distinction is made between working life
and other spheres of social life.
The 1994 Equal Treatment Act of the Netherlands covers both
working life as well as other spheres of social life within the same act.
Assuming a civil law approach is chosen, a comprehensive
approach seems to have some advantages,
but
it is possible that the Irish approach can work just as well. At least Sweden.
s use of criminal law for one form of discrimination but not
discrimination in working life seems to have little logical basis. There may
however be some logic in separating out working life from other parts of social
life. At least in those countries with a broader human rights act such as
Canada it is common that working life is treatly somewhat separately within the
framework of the overall act.
A comprehensive
supervisory authority or separate authorities for each ground of
discrimination?
Concerning supervisory authorities there are a variety.
In the Netherlands there is the broad-based mandate of the
Equal Treatment Commission and in Canada the Human Rights Commission. These are
to a large extent a result of the comprehensive civil law-based legislation
against discrimination.
Ireland. s Equality Authority is another comprehensive
independent body. It was set up under the 1998 Employment Equality Act 1998 and
replaced the Employment Equality Agency. It was then given a greatly expanded
role and function.
Sweden on the other hand has four separate government
authorities. One for each of the discrimination grounds. This will raise some
sensitive issues in Sweden as the introduction of age as a discrimination
ground gains interest. Will this lead to the establishment of another
ombudsman, or will age be placed within the authority of an existing ombudsman?
If so, which one? How will the targets of age discrimination react if the
government moves in this direction?
England will be facing a similar issue in that there are
currently three separate commissions for the grounds of race, gender and
disability. Will additional commissions be established for each of the new
grounds?
Australia with its Human Rights and Equal Opportunities Commission
provides a slightly different model. (Australia has separate laws for each
discrimination ground but a comprehensive supervisory body.) The Commission is
led by one Commissioner with some overall responsibility while there are separate
Commissioners for each of the discrimination grounds (gender, race and disability).
This model retains the broad . human rights. focus within the
broader mandate of the HREOC while still paying some attention to the
separateness of the issues.
Some form of comprehensive approach will probably lead to
the most effective practical work against discrimination. Under the umbrella of
one organisation it will be easier for the personnel in the different fields to
learn from each other, particularly if there is a comprehensive civil law or if
the laws are at least based on the same legal principles.
Conclusion
I have come to the conclusion that the most reasonable
approach for fulfilling the requirements of the EU directives as well as for
developing more effective laws against discrimination is that a starting point
should be the development of a single law that
- Covers
all grounds of discrimination, including gender, race and ethnicity,
religion, disability, age and
sexual orientation.
- Covers
working life as well as the other spheres of social life
- Provides the basis for a comprehensive supervisory
authority covering all grounds, but with the flexibility to allow for a
internal specialization in relation to the various grounds.
