New law changes burden of proof in sex discrimination cases

A law that came into force in Luxembourg on 1 September 2001 transposes into national law almost word for word the terms of the 1997 EU Directive on the burden of proof in sex discrimination cases.

A law that came into force on 1 September 2001 (dated 28 June 2001) aims to transpose EU Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex into Luxembourg law. Apart from a number of specific issues, the professional chambers (which represent the social partners and other interest groups in the legislative process) gave their approval to the bill on the issue presented to them for their opinions.

The law provides that the principle of equal treatment means that there shall be no discrimination whatsoever based on sex, either directly or indirectly. Although the notion of direct discrimination requires no further amplification, and the concept of indirect discrimination is not unknown in Luxembourg law, the latter notion has never been defined. This gap has now been made good by transposing the terms of the following definition given in Article 2 of the Directive:'indirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelated to sex.'

With regard to the scope of the law, the final text of the Luxembourg law does not follow the path taken by the Directive (a specific list of the legal situations to which is applies), and states more broadly that it: 'applies to any proceedings in the framework of a civil or administrative procedure in the public or private sector relating to access to employment, pay, opportunities for promotion and vocational training, access to a self-employed profession, terms and conditions of employment, and occupational social security schemes.'

The law does not take up the opportunity provided by the Directive to lay down rules of evidence which are more favourable to plaintiffs in sex discrimination cases, and confines itself to the burden of proof principles laid down by the Directive, as follows: 'when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.'

An identical approach on the burden of proof was adopted in the law of 26 May 2000 designed to combat sexual harassment (LU0005137F).