Discrimination

Discrimination may be defined as different treatment of individuals or groups based on arbitrary ascriptive or acquired criteria such as sex, race, religion, age, marital or parental status, disability, sexual orientation, political opinions, socio-economic background, and trade union membership and activities.

The term discrimination first entered EU discourse in the form of its prohibition on the basis of nationality in Article 18 TFEU. Article 19 TFEU, introduced as Article 13 EC by the Treaty of Amsterdam, extended the grounds on which discrimination is prohibited to sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation. The Charter of Fundamental Rights of the European Union, as enacted by the Treaty of Lisbon on 1 December 2009, includes in Article 21(1) a general prohibition of ‘any discrimination based on any ground, such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’.

The prohibition of discrimination in the sphere of employment and industrial relations in the EU began with the principle of equal pay for women and men in Article 119 of the EEC Treaty of 1957 (now Article 157 TFEU). In EU law, the law on sex discrimination includes Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for women and men; and Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men with respect to access to employment, vocational training and promotion, and working conditions (as amended by Council Directive 2002/73), and Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of sex discrimination.

Elaboration of the concept of discrimination by the European Court of Justice has led to clarification of its meanings which have been used in various directives. For instance, Directive 2000/78 of 27 November 2000, which establishes a general framework for equal treatment in employment and occupation, provides further elaboration of the concept. Equivalent definitions are provided with respect to discrimination on the basis of racial or ethnic origin in Articles 2 of Council Directive 2000/43 of 29 June 2000; and with regard to indirect discrimination in Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of sex discrimination. The translation of ‘management prerogatives’ into different treatment of workers is increasingly challenged by the expanding body of law that focuses on discrimination at work.

Council Decision 2000/750/EC of 27 November 2000 established a Community Action Programme to combat discrimination (2001-2006). The purpose of the Action Programme is to extend EU action beyond legislation, for example, by developing the capabilities of those in the field such as local authorities, independent specialist bodies and the social partners via exchanges of information, dissemination of good practice and the creation of networks. A separate action programme covering sex discrimination is provided for in Commission Decision 2001/51/EC which establishes a Community framework strategy for gender equality (2001-2005), the latest in a series of action programmes beginning in 1982 (Gender Equality Action Programme). An earlier Communication (COM (99) 564 final) led to two Directives that extend the non-discrimination principle to these new areas. Council Directive 2000/43 implements the principle of equal treatment between persons irrespective of racial or ethnic origin. Council Directive 2000/78 establishes a general framework for equal treatment in employment and occupation.

Objective justification for different treatment

Objective justification for different treatment refers to an admissible or lawful basis for treating an individual or group differently to others in the workplace or beyond. EU law prohibits discrimination on an increasing number of grounds, meaning that it is difficult for employers to treat people differently without encountering a charge of discrimination and needing to establish an objective justification for doing so.

However, there exists a range of substantive objective justifications for discrimination in both legislation and European Court of Justice (ECJ) case law. For example, Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for women and men with respect to access to employment, vocational training and promotion, and working conditions justifies different treatment based on genuine occupational qualifications, for the protection of women (particularly during pregnancy and maternity), and for promoting appropriate positive action.

The ECJ has also upheld justifications for indirect discrimination based on characteristics that relate to specific jobs or enterprise types. For example, where part-time workers are treated differently and this affects a greater proportion of women than men, the employer must show that the different treatment is based on objectively justified factors unrelated to sex discrimination. The ECJ upheld different treatment as objectively justifiable on the basis of organisational business need in the case of Bilka-Kaufhaus GmbH v. Karin Weber von Hartz (Case 170/84, [1986]).

With respect to employees who are not in a ‘standard employment relationship’ of full-time, permanent employment, Directive 97/81/EC of 15 December 1997 incorporating the Framework Agreement on part-time work embodies the non-discrimination principle ‘unless different treatment is justified on objective grounds’ (Clause 4(1)). A similar provision is found in Directive 1999/70/EC of 28 June 1999 incorporating the Framework Agreement on fixed-term work (OJ L175/43); the Commission’s proposal of 20 March 2002 for a Directive on temporary agency work; and the ‘voluntary’ agreement of 23 May 2002 (signed 16 July 2002) between the EU social partners on telework.

See also: discrimination on the grounds of religion or belief; discrimination on the grounds of sexual orientation; equality between women and men; equal opportunities; equal pay; Fundamental Rights Agency; gender mainstreaming; harassment in the workplace; management prerogative; negative freedom of association; racism and xenophobia; victimisation.