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European Convention on Human Rights (ECHR), and since 2009 the EU Charter
of Fundamental Rights (EUCFR), is only assessed by a marginal test: as long as a
difference in treatment has
some
rationality to it and is not completely arbitrary,
the quality of the underlying reasoning is not further assessed ('equality as
rationality', McCrudden and Prechal 2009). This approach was recently restated in
Arcelor
(ECJ, C-127/07, 16 December 2008).
6
Next to the general principle of
equality, the European Union has also developed anti-discrimination law relating
to
specific
grounds. In the following section (4.4) we will take a closer look at the
scopes and particularities of the different Directives regarding specific forbidden
grounds of discrimination, but first we must point out that here, in contrast to the
general principle of equality, a more conceptually refined notion of discrimination
is presented, broken down into different types of discrimination.
A first important conceptual distinction is the one between direct and indirect
discrimination, both of which are protected in all of the recent Directives. Direct
discrimination occurs when a person is treated in a less favourable way than
another person and this difference is based directly on a forbidden ground. For
instance, the Race Equality (
RE
) Directive states that “direct discrimination shall
be taken to occur where one person is treated less favourably than another is, has
been or would be treated in a comparable situation on grounds of racial or ethnic
origin” (art. 2(2a)). Indirect discrimination makes a conceptual shift from
consistency to substance (Fredman, 2002) by providing protection from
apparently neutral provisions, criteria or practices which have the 'side effect' of
discriminating against one of the specific forbidden grounds. Discrimination based
on a neutral 'proxy' that disadvantages a protected group
7
is thus prevented,
“unless that provision, criterion or practice is objectively justified by a legitimate
aim and the means of achieving that aim are appropriate and necessary” (art. 2(2b)
RE
). Next to direct and indirect discrimination there is another form of
discrimination, referred to as harassment: “when an unwanted conduct related to
racial or ethnic origin 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” (art. 2(3)
RE
). However, this definition is not uniform
across the different anti-discrimination directives and is open to varying
interpretations: “the concept of harassment may be defined in accordance with the
national laws and practice of the Member States” (art. 2(3)
RE
).
As the previous analysis demonstrates, the legal concept of discrimination is
multi-layered and sometimes contentious. Indeed, because discrimination is a
6
The steel company
Arcelor
contested a European Directive by arguing that imposing
certain measures to reduce CO
2
emissions on the iron and steel industry but not on the
aluminium and plastic industry, amounted to an infringement on the general principle of
equality. The ECJ concurred that a difference in treatment of comparable industrial
sectors which is not based on an objective and reasonable criterion, amounts to
arbitrariness and thus infringes on the general principle of equality. However, the
legislator has a broad discretion to introduce complex legislation in a gradual way for
different sectors. Therefore the ECJ held that the difference in treatment was not
unjustified.
7
For example, a disproportionate low salary for part-time work can be considered
discriminatory against women if it's predominantly women who work part-time.
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