Defence to both direct and indirect discrimination law teacher. Wrongs, group disadvantage, and the legitimacy of indirect. The key elements in establishing indirect discrimination are contained in s 12b of the sex discriminations act 1975. Indirect discrimination indirect discrimination can occur when you have a condition, rule, policy or even a practice in your organization that applies to everyone but particularly disadvantages people who share a protected characteristic. In the framework of eu anti discrimination law, applicability of the concept of direct and indirect discrimination is limited to grounds and fields determined by eu provisions. As baroness hale put it in homer, the law of indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a. Overview of eu antidiscrimination law and human rights. This handbook examines european nondiscrimination law stem. The cjeu interpreted the core nondiscrimination provisions of the eec treaty in one sense only.
The concept of indirect discrimination is an essential component of ec non discrimination law. In international human rights law, legal texts such as the convention on the elimination of racial discrimination, the convention on the elimination of all forms of discrimination against women, and the convention on the rights. Is one of the founding principals of the eu and is incorporated into all areas. The owner of a hotel tells a black couple that arrive to book a room that he does. European nondiscrimination law utrecht university repository. Handbook on european nondiscrimination law 2018 edition echr.
The concept of indirect discrimination is an essential component of ec nondiscrimination law. Usa, their antidiscrimination legislation also tackles the disproportionate adverse effects of rules that are neutral on their face and may not harbour any discriminatory intent or unconscious bias. Eu law on the free of movement of workers prohibits any discrimination based on nationality as regards conditions of work and employment. Writing in the first edition of this book, gillian more traced how the principle of equal. What is the difference between direct and indirect. It analyses the reasons for the original inclusion of sex discrimination in the treaty on the functioning of the european union tfeu and discusses the provision of tfeu articles that aim to promote equality and prohibit discrimination. The new edition retains the format of the highly successful first edition, while incorporating the many new developments in discrimination law since 2002, including the equality act 2010, human rights law, and eu law. The article focuses on the concepts of direct and indirect discrimination and tries to identify their specific features.
This is because the scope of eu discrimination law is much narrower than our. Direct and indirect discrimination icelandic human. Critically evaluate this statement as a reflection of the current position of the law in this area. This handbook examines european non discrimination law stem.
Introduction price discrimination is one of the most complex areas of ec competition law. With the impressive body of case law by the european court of human rights and the court of justice of the european union in the non discrimination field, it seems useful to present, in an accessible way, a handbook intended for legal practitioners such as judges, prosecutors and lawyers, as well as law enforcement officers in the eu. Nonetheless, today the very meaning of the concept and its practical implications are often far from well understood. The need for a casebycase approach damien geradin and nicolas petit i. Indirect discrimination recognises that equal treatment may itself have a disparate impact. The chapter takes its point of departure in a definition proposed by andrew altman and uses it as a springboard for a better one, which, among other things, does not involve the requirement that indirectly discriminatory acts have effects on discriminatees, i. Discrimination law association this book excels in offering a snapshot into contemporary discrimination law scholarship and is a mustread for anyone working in this area. It applies indirect effect horizontally and applies it to preexisting national law. Furthermore, eu law has direct or indirect effect on the laws of its member states and becomes part of the legal system of each member state. Both indirect discrimination and quasi direct discrimination seek to tackle such discriminatory outcomes.
Introduced into european community law by the court of justice through its case law in the field of free movement of workers, the legal concept of indirect discrimination has evolved into one with far wider and greater relevance to many other areas of ec law as well. Direct effect and indirect effect in the eu revision notesoutline. The court has defined its concept of indirect discrimination as a general policy or measure which is apparently neu. Handbook on european nondiscrimination law 2018 edition. Direct and indirect discrimination any discrimination with the purpose or the effect of nullifying or impairing the equal enjoyment or exercise of rights is prohibited under the nondiscrimination provisions. Creates gap in eu law by not allowing horizontal direct effect of directives. Indirect discrimination in ec law the factual meaning of the concept of indirect discrimination in ec law and its relevance for the protection of minorities through antidiscrimination law. Discrimination is defined as the treatment of one person in a less favourable manner than another person in a comparable situation, on any of the nine grounds specified above. Direct and indirect price discrimination in the automotive. Introduction to eu legislation and definitions of key concepts. Ever since its recognition by the supreme court of the united states in 1971, liberal democracies around. Direct discrimination, indirect discrimination and.
This chapter discusses the doctrine of direct effect. All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a standalone resource. It may be direct or indirect, the main difference being that indirect discrimination is only permissible if. Drawing on their wealth of experience both teaching and writing in. Handbook on european non discrimination law european non discrimination law, as constituted by the eu non discrimination directives, and article 14 of and protocol 12 to the european convention on human rights, prohibits discrimination across a range of contexts and a range of grounds. In view of a justification defence to both direct and indirect discrimination, the law will continue to do little to prevent age discrimination critically evaluate this statement as a reflection of the current position of the law in this area. Comparably similar legal definitions of indirect discrimination and harassment apply in respect of sexual orientation, religion, age, gender and disability. Wrongs, group disadvantage, and the legitimacy of indirect discrimination law. H collins and t khaitan eds, foundations of indirect discrimination law hart, 2018. The handbook acknowledges that the principle of nondiscrimination is very important because it influences the enjoyment of all other human rights. Equality and nondiscrimination under the echr and eu law. Let us take a look at some case references, in which an employee has reported a case of direct discrimination. Europa institutes of the universities of basel switzerland and leiden netherlands era seminar applying antidiskrimination law 10 and 11 june 20, trier prvon. Handbook on european caselaw concerning non discrimination.
Expanded coverage of the new strands in discrimination law, including discrimination on grounds of sexual orientation, age, and religion and belief. Indirect discrimination occurs when there is an unreasonable rule or policy that is the same for everyone but has an unfair effect on people who share a particular attribute. Chapter 2 explores the distinction between direct and indirect discrimination. Equality and nondiscrimination provisions in ec law. European union eu law, discrimination is connected with comparability and generally occurs when comparable situations are treated. The cjeu ruled that the principle that men and women should receive equal pay, which is laid down in article 119, is one of.
Under this model, indirect discrimination involves a measure that, although it does not directly i. May 29, 2007 direct discrimination, indirect discrimination and autonomy for instance, the european union prohibits direct and indirect discrimination on certain grounds in certain contexts. Under the equality act 2010 eqa 2010, direct discrimination occurs where an employer or organisation treats someone less favourably because of their age, disability, gender, sexual orientation, marital status, pregnancy or maternity, race, religion or belief, or sex. For instance, the european union prohibits direct and indirect discrimination on certain grounds in.
In other words, the principle of nondiscrimination prohibits direct and indirect forms of discrimination. The eu law had to be implemented by 2006 before the period. Presentation for direct and indirect discrimination direct discrimination can be less favourable treatment, which includes harassment or bullying. Indirect discrimination or disparate impact concerns the application of the same rule to everyone, even though that rule significantly disadvantages one particular group in society. Indirect discrimination australian human rights commission. Press releases european union website, the official eu. This is when someone is treated less favourably than someone else in a similar situation because of a protected characteristic.
In view of a justification defence to both direct and indirect discrimination, the law will continue to do little to prevent age discrimination. Indirect discrimination is concerned with the situation when one group is worse off than another and therefore concerned with group rights. It is direct discrimination on ethnic and therefore racial grounds for a school to give preference, in admissions, to children who are orthodox jews according to the chief rabbis criteria of orthodoxy. The result is a comprehensive textbook with materials from a wide variety of eu member states. About the casebook nondiscrimination casebooks for the. As non discrimination law is a comparatively new subject, the chapters search for and develop the concepts of discrimination law on the basis of a wide variety of young and often still emerging case law and legislation. What is the difference between direct and indirect discrimination. The broadest scope of applicability is foreseen for prohibition of discrimination on. Discrimination law paperback sandra fredman fba oxford. Development of indirect discrimination in the uk law teacher.
Direct and indirect discrimination in european union law how to. Incorporates the many new developments in discrimination law since 2002, including the equality act 2010, human rights law, and eu law. Nov 25, 2019 indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. For instance, the law of the european union eu provides that. Direct and indirect price discrimination in the automotive industries of the european union article in empirical economics 503 april 2015 with 243 reads how we measure reads. The handbook is designed to assist legal practitioners who are not specialised in the field of nondiscrimination law, serving as an introduction to key issues involved.
The concept of indirect discrimination refers to an apparently neutral law, practice or criterion, which has been applied equally to everyone but the result of which favours one group over a more disadvantaged group. Direct and indirect discrimination icelandic human rights. Intention in direct discrimination oxford scholarship. Discrimination based on a generally applicable dress code is not direct discrimination. Handbook on european nondiscrimination law european nondiscrimination law, as constituted by the eu nondiscrimination directives, and article 14 of and protocol 12 to the european convention on human rights, prohibits discrimination across a range of contexts and a range of grounds. Extensive comparative coverage including the us, india. The claimant brought a claim alleging that the electricity suppliers actions were direct or indirect race discrimination.
The concept of discrimination in international law. Introduction to the eu legislation and definitions of key. The eu directives also govern indirect discrimination, which involves a neutral rule, applied without distinction to people in different situations. Indirect discrimination in ec law the factual meaning of the concept of indirect discrimination in ec law and its relevance for the protection of minorities through anti discrimination law.
Both indirect discrimination and quasidirect discrimination seek to tackle such discriminatory outcomes. Oct 27, 2011 european commission press release details page european commission press release brussels, 27 october 2011 the european commission has decided to refer italy to the eus court of justice because of discrimination against nationals of other member states as regards public sector jobs. Only substantive rules directly prohibiting discrimination. Equality and non discrimination under the echr and eu law 523 zaorv 74 2014 ropean union eu3 on the other, with respect to the issue of legal equality and non discrimination. Foundations of indirect discrimination law editors. Mulder offers a fascinating answer to this question, showing how national legal, cultural, and political factors shape the way national courts grapple with direct and indirect discrimination on. Direct discrimination, indirect discrimination and autonomy. Drawing on the authors wide experience of equality law in many jurisdictions, she creates ananalytic framework to assess the substantive law. The commission considers that italys preference based on residence is indirect discrimination as italian citizens are more likely to benefit from this priority of access to employment than candidates.
Dec 23, 2019 both direct discrimination and indirect discrimination, one of the most pertinent pieces of legislation is the sex discrimination act of 1975. So even if you have a law form the 1920s it must be interpreted in compliance with eu law. The handbook is designed to assist legal practitioners who are not specialised in the field of non discrimination law, serving as an introduction to key issues involved. Indirect discrimination leaves a little wiggle room as to what their true motives and intentions are. Usa, their anti discrimination legislation also tackles the disproportionate adverse effects of rules that are neutral on their face and may not harbour any discriminatory intent or unconscious bias. Indirect discrimination will occur where an employer imposes a provision, criterion or practice which applies to all employees, which puts persons of the complainants sex at a particular disadvantage when compared to members of the opposite sex and the provision is also to. Handbook on european caselaw concerning nondiscrimination. For instance, the law of the european union eu provides that indirect discrimination shall be taken to occur where an apparently neutral provi. Direct and indirect discrimination in wto law and eu law. In a broad sense direct effect means that provisions of binding eu law, which are sufficiently clear, precise, and unconditional to be considered justiciable. Handbook on european nondiscrimination law european union.
In other words, the principle of non discrimination prohibits direct and indirect forms of discrimination. The employment equality act, 1998 prohibits discrimination in relation to. But it can help to negotiate where you know the underlying legal entitlements. The broadest scope of applicability is foreseen for prohibition of discrimination on grounds of nationality. Union, as interpreted by the court of justice of the european union cjeu. This type of discrimination can cover situations when a person does not have the protected characteristic, but they are perceived to have it, or they associate with others who do have it. Discrimination international law oxford bibliographies.
European commission press releases press release free. This is a book that sets out to examine why and how it is that national courts receive and apply eu non discrimination law in very different ways. According to connolly the law in relation to indirect discrimination is less certain for imposing liability for indirect discrimination. The aim of nondiscrimination law is to allow all individuals an equal and fair prospect to. Direct discrimination, indirect discrimination, harassment marie mercatbruns cnamsciences po. For example, direct discrimination would be a grocery store posting a sign in its window stating.
Direct and indirect discrimination essay 666 words. In this highly readable yet challenging book, sandra fredman examines theways in which discrimination law addresses these questions. Today, the concept of indirect discrimination has a. This chapter examines sex discrimination law in the european union eu. May 26, 2011 as in the previous edition, the book locates discrimination in its wider social and historical context. The book is a thoughtprovoking and accessible overview of the way in which equality law has adjusted to new and increasingly complex challenges. Limits and potential of the concept of indirect discrimination. A comparison of eu law and the echr in the field of. In the framework of eu antidiscrimination law, applicability of the concept of direct and indirect discrimination is limited to grounds and fields determined by eu provisions. Jun 11, 2019 according to the employment law, such behaviour is unlawful, and you can challenge direct discrimination in an employment tribunal. Direct discrimination, indirect discrimination and autonomy direct discrimination, indirect discrimination and autonomy doyle, oran 20070529 00. Sources and scope of european union law the european union has legal personality and as such its own legal order which is separate from international law. Both allegations of direct discrimination were, unsurprisingly, rejected.
The article analyses the concept of indirect discrimination, arguing first that existing conceptualisations are unsatisfactory and second that it is best understood as equal treatment that is disadvantageous to the discriminatees because of their groupmembership. The change has happened in a context of turning attention in the council of europe and the european union to the protection of particularly vulnerable groups. If this happens, the person or organisation applying the policy must show that there is a good reason for it. European nondiscrimination law, as constituted by the eu nondiscrimination directives, and article 14 of and protocol 12 to the european convention on human rights, prohibits discrimination across a range of contexts and a range of grounds. These acts were brought into law to give effect to the issues referred to above in the various eu directives concerning discrimination and equality in the workplace. The current law on discrimination is laid down in the equality act 2010. Direct discrimination at workplace with case references. It could be indirect sex discrimination if a policy says that managers must work fulltime, as this might disadvantage women because they are more likely to work parttime because of family responsibilities. Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group. According to this legislations language on indirect discrimination, the requirement of a trait which is generally not found in women would thus constitute indirect discrimination against women. The concept of indirect discrimination does so by requiring an employer who adopts such a separating rule to objectively justify that rule where the rule has a disparate impact. European union eu antidiscrimination law print version.
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