Conclusions and Final Practical Tips
n H o w t o P r e s e n t a D i s c r i m i n at i o n c l a i m n
What steps do you need to take when you feel you have faced discrimination? What advice should you give when a client claiming to be a victim of discrimination walks through your door? Legal professionals, case workers and the victims themselves first need to ask this question: what is the victim’s protected characteristic? BUT FOR their disability, age, ethnicity, race, religion or sexual orientation would they have been treated otherwise? It is important to bear in mind that protection under European non-discrimination law is due to people treated unfavourably on account of a protected ground in certain fields.
If the answer to the BUT FOR question is yes, next it may be helpful to look at the European definition of the different forms of discrimination to analyse the unequal treatment. This exercise may be done in two phases. First, it may be worth finding out the following:
• What constitutes less favourable treatment? For instance: failure to recruit, education, services, promotion, or lower pay. DIRECT DISCRIMINATION
• What is the provision, criterion, or practice that puts the victim at a particular disadvantage? For instance:
language requirements. Do people from the same protected group suffer from a similar disadvantage?
INDIRECT DISCRIMINATION
• Does the conduct intimidate, degrade or humiliate the victim or does it create an offensive environment? For instance: homophobic jokes. HARASSMENT
• Does the less favourable treatment result from involvement in a complaint or proceedings against discrimination?
For instance: a disabled employee who is not promoted complains and is subsequently laid off. VICTIMISATION
• Did somebody instruct the discriminator to treat the victim less favourably? AN INSTRUCTION TO DISCRIMINATE
• Does the treatment breach the requirement to make reasonable accommodations for disabled people? FAILURE TO PROVIDE REASONABLE ACCOMMODATION
The answers to these questions will point to the type of discrimination in question.
Second, it may be worth identifying a comparator – if one is needed at all:
• The Non-discrimination Directives allow for hypothetical comparators.
• There is no need to identify a comparator in cases of harassment, victimisation, an instruction to discriminate, or a failure to provide reasonable accommodation.
• In some Member States discrimination can be established compared to an ideal minimum standard of treatment, for instance conduct required by respect for human dignity.
The answers to the questions above will indicate the facts that need to be established in legal proceedings as well as the limits of a defence of justification. Once you have identified the type of discrimination and the best potential comparator, you may safely move on to collecting evidence, arranging it and planning to counter a defence of justification.
Establishing the facts lies at the heart of any legal proceedings, which in cases of discrimination is as a general rule accelerated through the reversal of the burden of proof. The following are outlined in this Handbook:
• what facts can support a discrimination claim (see the Basic information in a discrimination claim table);
• how to assess these facts (see the ‘Three plus one’ steps to establishing discrimination relying on the reversed burden of proof table); and
• how to collect evidence to substantiate these facts (see Chapter II.4.A. ‘Specific evidence’).
thematic report 111
CONCLUSIONS
This Handbook also contains charts and tables to guide you through procedures and assist you in selecting the most effective and proceedings on the basis of the enforcement chart. Tips on overcoming procedural barriers include the following:
• Use civil or administrative procedures or complain to the equality body instead of initiating criminal proceedings.
• Tackle the complexity of domestic anti-discrimination law by using information available from equality bodies and specialist non-governmental organisations.
• Take advantage of the skills and experience of the equality bodies.
• Seek financial assistance to pursue a case and secure adequate representation. In many countries legal aid is available from equality bodies.
• Seek a waiver from legal fees that may be payable in discrimination cases.
• Find the least expensive procedure: in general, proceedings before equality bodies and administrative authorities as well as criminal proceedings and mediation/conciliation are free of charge.
• If court proceedings are lengthy, then seek redress from equality bodies or inspectorates or through mediation.
• Request basic adjustments to court buildings to accommodate the needs of disabled victims in good time.
• Pay attention to short time limits for bringing a case and challenge them if necessary through a preliminary referral to the CJEU.
The Handbook provides a useful summary of sanctions that can be sought to remedy discrimination. Settlements secured through mediation show a high level of invention and variety that may be used for inspiration.
BEFORE taking any legal action it is advisable to consult a specialised equality body, a non-governmental organisation and/or a trade union. Equality bodies are the most specialised, accessible and cheapest providers of advice, assistance and more on discrimination.
Discrimination is often directed against groups or communities and also arises from unequal social structures. The Non-discrimination Directives provide the best tools to fight discrimination at the individual level. However, if victims work together and involve non-governmental organisations, it is possible to challenge structural discrimination
If and when national legislation appears vague or too complex, it is worth relying on arguments based on European non-discrimination law from the very beginning of proceedings, regardless of whether they are instituted before a court, an equality body or administrative authorities. Any claim may be referred to a court on appeal or review from an administrative authority, inspectorate, or even an equality body. Arguments based on EU non-discrimination law may lead any court to refer a case to the Court of Justice of the European Union. Such arguments have already been made for instance before the European Court of Human Rights. A prime example of these arguments can be found in D.H. and Others v. the Czech Republic, judgment of 13 November 2007 (application No. 57325/00 available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en).
n H o w t o P r e s e n t a D i s c r i m i n at i o n c l a i m n
Chris | 1954 Chris | 1954
thematic report 113
APPENDICIES
Appendicies
n H o w t o P r e s e n t a D i s c r i m i n at i o n c l a i m n