Non-discrimination law is a cornerstone of the EU. The prohibition of discrimination is mentioned in various legal sources, both in primary and secondary EU law, and extends beyond the field of employment relationships. This rich legal framework distinguishes between direct discrimination and indirect discrimination.
- Direct discrimination: when one person is treated less favourably than another is, has been, or would be treated in a comparable situation on any of the grounds mentioned in various legal provisions.
- Indirect discrimination: when an apparently neutral provision, criterion or practice would put persons having a particular protected characteristic (e.g. their religion or belief, disability, age or sexual orientation) at a disadvantage compared with others.
While the prohibition of discrimination dates back to the establishment of the European Community, the legislative definition of both direct and indirect discrimination first appeared in Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex. Two directives adopted in 2000 reinforced these definitions: Directive 2000/78/EC of 27 November 2000, which established a general framework for equal employment treatment, and Directive 2000/43/EC of 29 June 2000, which implemented the principle of equal treatment between persons irrespective of race or ethnic origin. Since then, further non-discrimination directives, such as Directive 2006/54/CE and Directive 2010/41/EU , have included the same definitions.
The crucial distinction between direct and indirect discrimination is based on the appearance of neutrality. In cases where discrimination is direct, the unequal treatment between two people is explicitly based on a prohibited ground. In the case of indirect discrimination, the difference of treatment is apparently not linked to any prohibited ground. Another difference in the legal definition of both forms of discrimination lies in the possibility of justifying indirect discrimination, a difference that is explicitly included in the legislative definition of such forms of discrimination. As a result, indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular protected characteristic at a disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The possibility of justifying direct discrimination is limited to the specific exemptions presented in law. In the case of indirect discrimination, the possibility is more open.
Indirect discrimination is considered to be an ‘effects-based’ concept. Firstly, this means that indirect discrimination can only be identified when taking into account the specific legal and factual context in which an apparently neutral measure, practice or criterion is applied. The alleged victim of indirect discrimination will thus have to have evidence – such as statistical proof – that they have suffered a disadvantage compared with other persons in a comparable situation that do not have the same particular and protected characteristic. Secondly, as an ‘effects-based’ concept, indirect discrimination does not imply any discriminatory intent on the part of the employer; only the discriminatory effects of the measure will be considered. Some examples of indirect discrimination may be found in Court of Justice of the European Union (CJEU) rulings. For instance, Case C-138/02 – Collins ruled that discrimination on the grounds of nationality is prohibited, as ‘a requirement of habitual residence (to claim jobseeker allowance) may be indirectly discriminatory because it can be more easily met by nationals of the host Member State than by those of other Member States’. Another example is the prohibition of headwear, as this disadvantages persons who belong to certain religions and therefore raises the presumption of indirect discrimination on the grounds of religion.
In cases where a presumption of indirect discrimination is established, the employer can objectively justify the unequal treatment. In such cases, the employer has to show that the practice under discussion is explained by objectively justified factors unrelated to discrimination grounds and that it is appropriate and necessary to meet a legitimate aim. Determining whether a given measure corresponds with these requirements is made on a case-by-case basis. Budgetary factors influencing the nature and extent of social protection measures in a Member State are not, as such, a legitimate justification of indirect discrimination (Case C-343/92 – Roks). On the contrary, the aim of encouraging mobility and training can be considered a legitimate aim with respect to justifying indirect discrimination (Case 109/88 – Danfoss).
See also: discrimination; discrimination on the grounds of age; discrimination on the grounds of racial or ethnic origins; discrimination on the grounds of religion or belief; discrimination on the grounds of sexual orientation; equality between women and men; equal opportunities; equal treatmen ; non-discrimination principle