A Comparative Analysis of Anti-Discrimination and Data Protection Legislations - Discrimination and Privacy in the Information Society - page 65

race or ethnic origin: such discrimination is forbidden with regard to employment,
occupation and vocational training, and the non-employment fields of social
welfare (such as education, social security, health care) and access to goods and
services, which includes housing. Council Framework Decision 2008/913/JHA of
28 November 2008 on combating certain forms and expressions of racism and
xenophobia by means of criminal law, even extends this already wide scope.
Secondly, with regard to gender, there are Directive 2006/54/EC 14 , on equal
treatment for men and women in the field of employment and occupation ( Gender
Recast Directive ), and Directive 2004/113/EC prohibiting sex discrimination
concerning access to and supply of goods and services ( Gender Goods and
Services Directive ). It follows from these, and the earlier gender related
Directives 15 from the first (1970s) and second wave (1990s), that the range of
prohibited gender discrimination is narrower than that of racial discrimination, as
it neither covers the areas of education, media and advertising (Directive
2004/113/EC, art. 3(3)), nor taxation and, in all likelihood, health care. Gender
discrimination is not prohibited with regard to goods and services provided by
public bodies that are not part of the common market (preamble of Directive
2004/113/EC, §11), and only covers social security - which is not as broad as the
social welfare protected by racial anti-discrimination law (Fribergh and Kjaerum
2011). The difference in protective scope against racial and gender discrimination
has been criticized (see e.g. Caracciolo di Torella 2005; Van Drooghenbroeck and
Lemmens 2010). Finally, there is Directive 2000/78/EC ( Employment Equality
Directive ), which prohibits discrimination on grounds of religion and belief, age,
disability and sexual orientation, but only with regard to employment, occupation
and vocational training.
It follows from the above that at present the scope of anti-discrimination legislation
varies widely according to the protected grounds. It is to be pointed however that the
Proposal for a Council Directive of 2 July 2008 is meant to overcome some of the
asymmetries by extending the prohibition of discrimination based on grounds of
religious, disability, age or sexual orientation beyond labour market issues (see for a
critical discussion: Van Drooghenbroeck and Lemmens, 2010).
4.5 A Legal Regime Comprising Both an Administrative
Structure and a Bundle of Subjective Rights
This section will give a closer look at the legal regimes of the two rights. A
common feature of the two types of legal regimes is that they do not merely
consist of legal principles, but also contain administrative bodies and a series of
so-called 'subjective' rights: concrete, individual rights granted to the legal
subjects they aim to protect, which can be mobilised at will (Dabin, 1952).
14 This directive actualises Directive 2002/73/EC.
15 Most of the earlier directives on gender, which were introduced in the 1970s and 1990s,
have been superseded by the Gender Recast Directive , but for instance, Directive
79/7/EEC, the Gender Social Security Directive , and Directive 92/85/EEC, the
Pregnancy Directive , are still in force and binding the member states.