The Changing Scope of the
Fundamental Principle of Equality?
Catherine Barnard*
The author considers the impact of the Charter of
Fundamental Rights of the European Union and two
recent Directives on the evolution of the “fundamental”
right to equality. She outlines the development of the
equality principle in the context of sex discrimination,
beginning with the economic principle of equal pay for
equal work. In the 1970s one legal approach to sex
equality began a continuing evolution to include con-
ceptions of direct and indirect discrimination and for-
mal and substantive equality. She then considers the
“horizontal” labour market Directive and the race Di-
rective of 2000, tracing their connections to existing
national legislation and noting difficulties posed for ap-
plicants by the burden of proof. Both Directives contain
complex derogations. The Race Directive in particular
provides strong remedies, notably a provision on vic-
timization and an obligation to designate a body to
promote equal treatment of persons, and both Direc-
tives envisage an important role for non-governmental
organizations. That these Directives were ever con-
cluded is an achievement, and in some states the Direc-
tives represent a significant leap forward in protecting
disadvantaged groups. In other states with existing
similar legislation, however, it may seem that the Di-
rectives embody an outmoded approach to equality, fo-
cussed chiefly on non-discrimination, rather than its
broader, more results-oriented, distributive sense.
Lauteur fait dtat de l’impact de la Charte des
droitsfondanentar de l’Union europenne et do dux
directives r&-entes sur l’volution du droit fondamn-
tab> a l’dgalitd. en d~butant par un survol du dIvelop-
pement du principa d’dgalitd. Ce principe, dans I con-
texte de ]a discrimination sexuelle, fit sea d.’buts avcc le
principa &onomique du salaire dgal pour travail dgal.
Dans les ann(cs 1970, dmcrgea tne nouvelle approche
concemant l’galitd sexuelle, incluant lea distinctions
entre discrimination directe et indirecte ainsi qu’entre
dgalitO formelle et substantive. L’auteur examine la di-
rective sur l’dgalitd de traitement ct la directie sur
l’dgalitd raciale et ethnique. en particulier leurs liens
avec lea lois nationalea existantes, les diflicultS relati-
ves anu fardeau de preuve imposd aux plaignants, et
l’existence de clauses d~rogatoires complexes. La di-
rective sur l’Hgalitd rciale ct cthnique, en partiulier.
pruivoit des remdes significatifs, notamment des dispo-
sitions sur la victimisation et l’obligation de d1ignr
un organisme pour promouvoir i’6galitd d
traitanzit
cntre lea personnes; de plus, lea dux directivea pr-
voient un rfle important pour lea ONG. L’adoption
meme de ces directives constitue un accomplissentt
non ndgligeable. et reprlsentera un progr s considra-
ble pour la protection de groupes dIs -antagds dans
certains 11tats. Pour d’autres I1tats qui possdnt dIj
des lois similaires, toutefois, lea directives poirront sem-
bier incamer tine approche d mod.a envers la qu-stion
de l’-galitd, base sur la non-discrimination plu!Ot qu2 sur
l’aspect distributif plus large de CC conCep.
Trinity College, Cambridge.
McGill Law Journal 2001
Revue de droit de McGil 2001
To be dted as: (2001) 46 McGill LJ. 955
Mode de rfdrence: (2001) 46 RD. McGill 955
956
McGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
Introduction
I. The Breadth and Scope of Equality Law in the EU
II. The Article 13 Directives
Conclusion
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALnY?5
957
Introduction
The achievement of equality now stands at the forefront of the European Union’s
agenda, not only in the field of sex, but also in respect of race, ethnic origin, religion
and belief, disability, age, and sexual orientation, with the adoption of two important
new Directives’ under Article 13,2 the new legal basis introduced by the Treaty of Am-
sterdam?. The principle of equality also has a central place in the newly adopted
Charter of Futdamental Rights of the European Union.’ Its Preamble provides:
Conscious of its spiritual and moral heritage, the Union is founded on the indi-
visible, universal values of human dignity, freedom, equality and solidarity;, it is
based on the principles of democracy and the rule of law.
The aim of this article is to consider the impact of the Charter and the two Article 13
Directives on the evolution of the “fundamental ”s right to equality. I will argue that
these Directives, while representing an important step forward, draw considerably on
the sex equality model developed largely in the 1970s. I will suggest that the time has
come to update this model if true equality is to be realized. In the first section I briefly
outline the development of the equality principle in the context of sex discrimination-
‘See infra notes 66, 67.
2 Consolidated Version of the Treaty establishing the European Community, 10 November 1997,
[1997] OJ.C. 340/3, art. 13,37 .L.M. 79 [hereinafter EC Treaty].
3 Treaty ofnAmsterdam amending the Treaty on European Union, the Treaties establishing the Enro-
pean Communities and certain related acts, 2 October 1997, [1997] OJ. C. 34011 [hereinafter Treaty
ofAmsterdam].
18 December 2000, [2000] OJ. C. 364/1 [hereinafter Charter]. I shall focus on the individual’s
right to equality enforceable against the state or another employer as opposed to the general principle
of equality enforceable by the staff of the Community Institutions against the Community. Se gener-
ally T. Tridimas, The General Principles ofEC Lnv (Oxforc Oxford University Press, 1999).
5 See e.g. Defrenne v. Sabena, C-149/77, [1978] E.C.R. 1-1365 at paras. 26,27, [1978] 3 C1M.-R.
312: “[Riespect for fundamental personal human rights is one of the general principles of Community
law … There can be no doubt that the elimination of discrimination based on sex forms part of those
fundamental rights:’ See also Marshall v. Southanpton and South West Hampshire Area Health
Authority (Teaching), C-152/84, [1986] E.C.R. 1-723 at para. 36, [1986] 1 C.M-LR. 688 [hereinafter
Marshall (No. 1)]; Roberts v. Tate & Lyle Industries, C-151/84, [1986] E.C.1L 1-703 at para. 35,
[1986] 1 C.M.L.R. 714; Birds Eye Wills v. Roberts, C-132192, [1993] E.C.R. 1-5579 at pam. 17,
[1993] 3 C.M.L.R. 773; Smith v. Avdel Systems, C-408/92, [1994] E.C.R. 1-4435 at pam. 25, [1995] 3
C.M.L.R. 543; R. v. Secretary of State for Employment, e: parte Nicole Seymour-Smith and Laura
Perez, C-167/97, [1999] E.C.R. 1-623 at para. 75, [1999] 2 C.M.L.R 273 [hereinafter Seymour-
Smith]; C. Docksey, “The Principle of Equality between Women and Men as a Fundamental Right
under Community Law” (1991) 20 Indust. LJ. 258.
6 See generally J. Neilson, “Equal Opportunities for Women in the European Union: Success or
Failure?” (1998) 8 J. Eu Soc. Pol’y 64.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
I then examine the two new Article 13 equality Directives in the second section. In the
conclusion I consider how this body of legislation and case law continues to fall short
of the high ideals of equality that resonate in the Preamble to the Charter.
I. The Breadth and Scope of Equality Law in the EU
When the Treaty of Rome was first signed, the only substantive social provision
was Article 119,’ which established the principle that men and women should receive
equal pay for equal work. This paucity of social provisions can be explained by the
very nature of the agreement struck: the purpose of the European Economic Commu-
nity (as it then was) was to secure free trade between the Member States. Such an
economic objective did not need any social underpinning. The very existence of Arti-
cle 119 can also be explained on economic grounds: “correcting or eliminating the ef-
fect of specific distortions which advantage or disadvantage certain branches of activ-
ity.” This, however, began to change. The first indication that sex equality involved
more than a defence against social dumping came with the Social Action Programme
which followed the Paris Communiqu6 in 1972. It said that the Community aspired to
create a situation in which equality between men and women was obtained in the la-
bour market throughout the Community, through the improvement of economic and
psychological conditions and of the social and educational infrastructure.” Three im-
portant Directives were passed as a result”-Directive 75/1172 on equal pay; Direc-
tive 76/207″ on equal treatment with regard to access to employment, vocational
‘ Treaty establishing the European Economic Community, 25 March 1957, 298 U.N.T.S. 11 [here-
inafter EEC Treaty].
‘ Now EC Treaty, supra note 2, art. 141. Subsequent references in connection with the EC Treaty to
former article numbers refer to the EC Treaty prior to amendments effected by the Treaty of Amster-
dam.
9 Rapport des Chefs de Dilgations aux Ministres des Affaires ltrangres (Brussels: Secretariat of
the Intergovernmental Conference, 1956) (chair. PH. Spaak) at 61 [translated by author].
‘0 See EC, Council Resolution of 21 January 1974 concerning a Social Action Programme, [1974]
OJ. C. 13/1.
” See generally C. Barnard, “Gender Equality in the EU: A Balance Sheet” in P. Alston with M.R.
Bustelo & J. Heenan, eds., The EU and Human Rights (Oxford: Oxford University Press, 1999) 215.
2 EC, Council Directive 75/117 of 10 February 1975 on the approximation of the laws of the Memn-
ber States relating to the application of the principle of equal payfor men and women, [1975] O.J. L.
45/19.
3 EC, Council Directive 76/207 of 9 Febnary 1976 on the implementation of the principle of equal
treatment for men and women as regards access to employment, vocational training and promotion,
and working conditions, [1976] OJ. L. 39/40 [hereinafter Directive 76/207]. The Directive was based
on the EC Treaty, supra note 2, art. 308 (formerly art. 235).
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALITY?
training, promotion, and working conditions; and Directive 79/7″ on the progressive
implementation of equal treatment with regard to statutory social security schemes.”
Directive 76/207 and Directive 79/7 prohibit both direct and indirect discrimina-
tion. There are elements of both formal equality (like should be treated with like)'” and
substantive equality (aimed at achieving equality of outcome or results)” in these Di-
rectives, as interpreted by the Court of Justice. Thus, the Court recognized that since
the majority of part-time workers are women, any rule which discriminated against
part-time workers may have a disparate impact on women.” The strength of this ap-
proach is, however, diluted by the growing complexity of the definition of indirect
“EC, Council Directive 79/17 of 19 December 1978 on the progressive implementation of the prin-
ciple of equal treatmentfor men and women in matters of social security. [1979] OJ. L. 6124 [herein-
after Directive 79/7]. Tkvo Directives were adopted in the 1980s. The first was EC, Council Directive
861378 of 24 July 1986 on the inplementation of the principle of equal treatment for men and women
in occupational social security schenes, [1986] OJ. L 225/40 [hereinafter Directive 86/378], as am.
by EC, Council Directive 96197 of 20 December 1996 amending Directive 861378/EEC on the im-
plementation of the principle of equal treatment for men and women in occupational social security
schemes, [1996] OJ. L. 46/20, in light of Barber v. Guardian Royal Erduange Assurance Group, C-
262/88, [1990] E.C.R. 1-1889, [1990] 2 C.M.L.RL 513, where the Court ruled that art. 199 required
equality in respect of occupational pension age, despite the derogation to Directive 86/378 for equal
treatment in respect of occupational pensions. The second Directive adopted in the 1980s was EC,
Council Directive 861613 of 11 December 1986 on the application of the principle of equal treatment
between men and women engaged in an activity including agriculture, in a self-employed capacit.
and on the protection of self-employed women during pregnancy and motherhood, [1986] 0. L
359/56.
,” Four Action Programmes targeted specifically at equal opportunities for men and women fol-
lowed these directives: EC, Council Resolution of 12 July 1982 on the promotion of equal opportuni-
ties for women, [1982] OJ. C. 186/3; Equal Opportunities for Ilbmen Mcdim-tern Community Pro-
gramme 1986-1990, EC Bull. Supp. 3/86, EC Bull. 6-1986 at 2-1.116; Third Mediuam-term Action
Programme, COM(90)449 final; EC, Council Decision 95/593 of 22 December 1995 on a medizum-
term Community action programne on equal opportunities for men and women (1996 to 2000),
[1995] OJ. L. 335/37. The fourth medium-term Community action programme (1996-2000) aimed to
incorporate equal opportunities into the process of defining and implementing the relevant policies at
Community, national, and regional levels (mainstreaming).
‘6 See e.g. Macarthys v. Smdth, C-12979, [1980] E.C.R 1-1275, [1980] 2 C.M.LR. 205.
” See H. Fenwick & T.K. Hervey, “Sex Equality in the Single Market: New Directions for the
‘s See e.g. Jenkins v. Kingsgate, C-96/80, [1981] F_.C.R. 1-911, [1981] 2 C.LR. 24.
European Court of Justice” (1995) 32 C..L. Rev. 443 at 445-46.
960
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
discrimination’9 and the possibility that indirectly discriminatory measures can be ob-
jectively justified by the alleged discriminator’ according to a sliding scale of tests.2′
Directive 76/207 also expressly provided for some form of substantive equality by
allowing for some positive action. Article 2(4) says that the Directive shall be “with-
out prejudice to measures to promote equal opportunity for men and women, in par-
ticular by removing existing inequalities which affect women’s opportunities.”‘ Yet
despite the existence of Article 2(4), the symmetrical notions of the formal non-
discrimination model have wielded considerable influence in the interpretation of
what positive action is permissible. This can be seen most clearly in Kalanke v.
Hansestadt Bremen,’ where the Court said that a rule which automatically gave pri-
ority to women when they were as equally qualified as men did involve discrimination
on grounds of sex. As Advocate General Tesauro explained in his forceful opinion
against the positive action at issue:
In the final analysis, must each individual’s right not to be discriminated against
on grounds of sex-which the Court itself has held is a fundamental right the
observance of which it ensures-yield to the rights of the disadvantaged group,
in this case, women, in order to compensate for the discrimination suffered by
that group in the past? ‘
He said that positive discrimination brought about a quantitative increase in female
employment, but it also most affected the principle of equality as between individuals.
More recently, on the one hand, the Court said in Abrahamsson v. Fogelqvist”s that
a national rule which gave automatic priority to a person of the under-represented sex
who had qualifications which were adequate but inferior in minor respects to those of
the person who would otherwise have been appointed failed to satisfy the require-
ments of Article 2(4) of Directive 76/207 and Article 141(4) of the EC Treaty.”‘ On
‘ See e.g. Seymour-Smith, supra note 5, and the criticism in C. Barnard & B. Hepple, “Indirect Dis-
crimination: Interpreting Seymour-Smith” (1999) 58 Cambridge L.J. 399 [hereinafter “Indirect Dis-
crimination”], considered further below.
‘0 See e.g. Bilka-Kaufhaus v. Weber von Hartz, C-170/84, [1986] E.C.R. 1-1607, [1986] 2 C.M.L.R.
701 [hereinafter Bilka]; Rinner-Kiihn v. FWW Spezial-Gebdudereinigung, C-171/88, [1989] E.C.R. I-
2743, [1993] 2 C.M.L.R. 932 [hereinafter Rinner-Kiihn].
21 See “Indirect Discrimination”, supra note 19.
‘ Supra note 13, art. 2(4) [emphasis added].
C-450/93, [1995] E.C.R. 1-3051, [1996] 1 C.M.L.R. 175.
24Ibid at para. 7 ×..
C-407/98 (6 July 2000).
6See the Social Policy Agenda, infra note 54.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALITY?
the other hand, in Marschall v. Land Nordrhein-Westfalen” the Court upheld, as com-
patible with Article 2(4) of Directive 76/207, a state law that gave preference to a
woman in a tiebreak situation, so long as the apparently equally qualified man was
considered on his individual merits. The Court recognized that
even where male and female candidates are equally qualified, male candidates
tend to be promoted in preference to female candidates particularly because of
prejudices and stereotypes concerning the role and capacities of women in
working life and the fear, for example, that women will interrupt their careers
more frequently, that owing to household and family duties they will be less
flexible in their working hours, or that they will be absent from work more fre-
quently because of pregnancy, childbirth and breastfeeding.
For these reasons, the mere fact that a male candidate and a female candi-
date are equally qualified does not mean that they have the same chances.P
This statement is the closest that the Court has come to recognizing a substantive ap-
proach to equality.
Despite these nods in the direction of substantive equality, which take account of
the real situation experienced by many women-primarily their careers in the home-
the focus of the 1970s Directives was to ensure equality in the public sphere. As the
Court has said, Directive 76/207 was not “designed to settle questions concerned with
the organization of the family, or to alter the division of responsibility between par-
ents “‘ The Court of Justice has, however, generally played a significant role in en-
suring that the equality rules which do exist are effective. Having already established
in Defrenne v. Socitd Anonyine Beige de Navigation Adrienne Sabena” that Article
119 of the EEC Treaty was directly effective and so could be enforced by individuals
before their national courts, it ruled that provisions of the equality Directives were
including the opaque provisions on remedies.” It also bol-
also directly effective,”
2’C-409195, [1997] E.C.R. 1-6363, [1998] 1 CAiL.R. 547 [hereinafter Marschall]. See C. Barnard
& T. Hervey, “Softening the Approach to Quotas: Positive Action after Marschall” (1998) 20 J. Sc.
Welfare & Farn. L. 333.
Marschall, ibid. at paras. 29, 30.
See generally D. Schiek, “Sex Equality Law after Kalanke and Afarschall (1998) 4 Eur. L. 148.
35Hofinann v. Banner Ersatzkasse, C-184/83, [1984] E.C.R. 1-3047 at para. 24, [1986] 1 C.M.LR.
242. See T. Hervey & L Shaw, “Women, Work and Care: Women’s Dual Role and Double Burden in
EC Sex Equality Law” (1998) 8 L Eut Soc. Pol’y 43.
3, C-43I75, [1976] E.C.R. 1-455, [1976] 2 C.M.L. 98 [hereinafter Defrenne (No. 2)].
3 See eg. Marshall (No. 1), supra note 5.
“‘ See eg. Marshall v. Southampton and South Iest Hampshire Area Health Authority (Teaching)
(No. 2), C-271/91, [1993] E.C.R. 1-4367 at para. 26, [1993] 4 All E.R. 586 [hereinafter Marshall (No.
2)]; C. McCrudden, “The Effectiveness of European Equality Law: National Mechanisms for En-
(1993) 13 Oxford J. Legal
forcing Gender Equality Law in the Light of European Requirements’
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
stered the substantive scope of the principle of equality. For example, it ruled that Di-
rective 76/207 prohibited discrimination against women on the grounds of their preg-
nancy’ and it required that genuine and effective remedies be provided for the victims
of discrimination.” Later, it recognized that the Directive also prohibited discrimina-
tion against transsexuals, ‘ but not homosexuals.”
More recently, the legislature has taken steps to adopt flanking measures designed
to facilitate the participation of women in the labour market. First, the 1989 Social
Action Programme” implementing the Community Social Charter 1989″‘ led to the
enactment, on the basis of Article 137,’ of a Directive improving the health and safety
of workers who are pregnant or have recently given birth.” Second, the Social Policy
Agreement (“SPA”) annexed to the Treaty on European Union,” from which the U.K.
initially secured an opt-out, led to the enactment of Directive 96/34 on reconciling
family and working life,’ 3 and the Directives on part-time work” and fixed-term
work,’ which extend the equality principle to these categories of workers. In addition,
Stud. 320. See also Draehmpaehl v. Urania Immobilienservice OHG, C-66/95, [1997] E.C.R. 1-2195,
[1997] 3 C.M.L.R. 1107. But see R. v. Secretary of State for Social Security, exparte Sutton, C-66/95,
[1997] E.C.R. 1-2163, [1997] 2 C.M.L.R. 382, concerning Directive 79/7, supra note 14; Coote v.
Granada Hospitality, C-185/97, [1998] E.C.R. 1-5199, [1998] 3 C.M.L.R. 958 [hereinafter Coote]
See generally M. Dougan, “The Equal Treatment Directive: Retaliation, Remedies and Direct Effect ‘
(1999) 24 Eur. L. Rev. 664.
Dekker v. Stichting Vormingscentrun voor Jong Volwassenen, C-177/88, [1990] E.C.R. 1-3941,
[1992] 29 C.M.L.R. 160; Webb v. EMO Air Cargo, C-32193, [1994] E.C.R. 1-3567, [1996] 33
C.M.L.R. 547.
” Marshall (No. 2), supra note 33. See D. Curtin, “Effective Sanctions and the Equal Treatment Di-
rective: The Von Colson and Harz Cases” (1985) 22 C.M.L. Rev. 505.
P v. S., C-13/94, [1996] E.C.R. 1-2143, [1996] 2 C.M.L.R. 247.
VGrantv. South-West Trains, C-249/96, [1998] E.C.R. 1-621, [1998] 1 C.M.L.R. 993.
EC, Communication from the Commission Concerning its Action Programme Relating to the ln-
plementation of the Community Charter of Basic Social Rights for Workers, COM(89)568.
39EC, Commission, Community Charter of the Fundamental Social Rights of Workers (Luxem-
bourg: EC, 1990).
4o EC Treaty, supra note 2 (formerly art. 118a).
4′ EC, Council Directive 92/58/EEC of 24 June 1992 on the minimum requirements for the provision
of safety and/or health signs at work, [1992] O.J. L. 245/23.
427 February 1992, [1992] OJ. C. 224/1, 1757 U.N.T.S. 3.
4′ EC, Council Directive 96/34/EC of 3 June 1996 on the framework agreement on parental leave
concluded by UNICE, CEEP and the ETUC, [1996] OJ. L. 145/4. This was the first Directive
adopted under the new procedure provided for by the SPA. It allowed the Social Partners to negotiate
a framework agreement which was then extended to all workers by a Directive.
4 EC, Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on
part-time work concluded by UNICE, CEEP and the ETUC, [1998] OJ. L. 14/9.
4 EC, Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on
fixed-term work concluded by ETUC, UNICE and CEEP, [1999] OJ. L. 175/43.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQ UAUTY?
Directive 97/80/EC,’ on the burden of proof in cases of discrimination based on sex,
was adopted, placing the onus on defendants accused of discrimination at work in
civil cases to prove that the principle of equal treatment has not been violated.
The principle of sex equality gained renewed status with the agreement of the
Treaty of Ansterdam. This treaty explicitly introduced equality between men and
women as one of the tasks and activities’ of the Community. In addition, it intro-
duced a new provision, Article 13,’ allowing the Council to take action to combat any
form of discrimination, including that based on sex:
Without prejudice to the other provisions of this Treaty and within the limits of
the powers conferred by it upon the Community, the Council, acting unani-
mously on a proposal from the Commission and after consulting the European
Parliament, may take appropriate action to combat discrimination based on s,
racial or ethnic origin, religion or belief, disability, age or sexual orientationP
A new second paragraph was added to Article 13 by the Treaty of Nice:’ Article 13(2)
allows the Council to adopt “flanking policy” measures, that is, those that involve no
harmonization of national laws, in this field, by the more democratic “co-decision”
procedure.
Article 141 on equal pay was amended significantly for the first time by the
Treaty of Ansterdam. Article 141(1) extended the definition of equal pay for equal
work to include “or work of equal value”, and Article 141(3) finally provided an ex-
press legal basis for the Council to adopt measures, in accordance with the Article 251
EC, Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of dis-
crinination based on sex, [1998] OJ. L. 14/6 [hereinafter Directive 97/80].
art. 3(2).
(formerly art 6a).
‘7EC Treaty, supra note 2, art. 2.
‘bid.,
,’7bTf
“T !biL Only “social origin” was lost from the original list proposed by the Irish presidency. See EC,
The European Union Today and Tomorro,. Adapting the European Union for the Benefit of its Peo-
ples and Preparing It for the Futur A General Outline for a Draft Revision of the Treaties, Brussels,
5 December 1996, CONF/2500/96, online: Europa
Intergovernmental Conference and the Prospects of a Non-discrimination Treaty Article” (1996) 25
Indust. LJ. 320; M. Bell, “The New Article 13 EC Treaty: A Sound Basis for European Anti-
discrimination Law?” (1999) 6 Maastricht J. Etm & Comp. L 5; L Waddington, ‘ Article 13 EC:
Mere Rhetoric or a Harbinger of Change?” (1999) 1 Cambridge Y.B. Eur. Stud. 175; L Waddington,
‘Testing the Limits of the EC Treaty Article on Non-discrimination” (1999) 28 Indust. LJ. 133; L
Flynn, ‘The Implications of Article 13 EC-After Amsterdam, Vill Some Forms of Discrimination
Be More Equal Than Others?” (1999) 36 C.ML. Rev. 1127.
51 [2001] OJ. C. 80/43.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 46
co-decision procedure,” “to ensure the application of the principle of equal opportu-
nities and equal treatment of men and women in matters of employment and occupa-
tion, including the principle of equal pay for equal work or work of equal value.” This
has provided the legal basis for a proposed modification of Directive 76/207, the 1976
equal treatment Directive.” The Commission’s Social Policy Agenda’ also talks of
further strengthening equality rights by making a proposal for an equal treatment Di-
rective based on Article 13 in areas other than employment and occupation. Finally,
the new Article 141(4) allows Member States “[w]ith a view to achieving full equality
in practice” to adopt or maintain measures “providing for specific advantages” to
make it easier for the under-represented sex “to pursue a vocational activity or to pre-
vent or compensate for disadvantages in professional careers” The provisions of Arti-
cle 141(4) appear to codify the Court’s decision in Marschall.
The promotion of equal opportunities also formed one of the four key pillars of
the European Employment Strategy initiated in Luxembourg in November 1997. This
strategy is intended to give effect to the new objective, found for the first time in the
newly included Employment Title in the Treaty of Amsterdam, of attaining a “high
level of employment”. The equal opportunities pillar focusses mainly on main-
streaming. In the 1999 Employment Guidelines” the Commission emphasized the
need to pursue integration of equal opportunities for men and women into all aspects
of employment policies, notably by guaranteeing active employment market policies
for the vocational integration of women proportionate to their rate of unemployment
and by promoting women in the context of entrepreneurship. The 2000 Guidelines fo-
cus on facilitating reintegration of men and women into the labour market after a pe-
riod of absence.’ The Social Policy Agenda has also emphasized the need
[t]o promote full participation of women in economic, scientific, social,
political and civic life as a key component of democracy. This is not only an is-
sue of rights, but also a major component for promoting social and economic
progress.
SZ EC Treaty, supra note 2, art. 251 (formerly art. 189b).
S3 Supra note 13. See EC, Proposal for a Directive of the European Parliament and of the Council
amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment
for men and women as regards access to employment, vocational training and promotion, and work-
ing conditions, COM(2000)334.
4EC, Communication from the Commission to the Council, the European Parliament, the Eco-
nomic and Social Committee and the Committee of the Regions, Social Policy Agenda,
COM(2000)379 [hereinafter Social Policy Agenda].
55 EC, Council Resolution of 22 February 1999 on the 1999 Employment Guidelines, [1999] O.J. C.
69/2.
‘6EC, Proposal for a Council Decision on guidelines for Member States’ employment policies for
the year 2000, COM(1999)712 at 13.
2001]
C. BARNARD- THE CHANGING SCOPE OF EQUALITY?6
965
The long-standing commitments on equality between women and men at
European level should be broadened and a gender perspective should be main-
streamed into all relevant policies.
Thus equal opportunities is seen as a valuable input into growth.
The new, non-bindings’ Charter:’ proclaimed at the Nice Summit in December
2000 has helped to redress the balance. Equality is not just a means to an economi-
cally prosperous end, but has a value in its own right. The Charter was adopted pri-
marily with a “declaratory” purpose-to combine in a single text “the civil, political,
economic, social and societal rights, hitherto laid down in a variety of international,
European or national sources.” “Equality” forms a chapter in its own right, opening
with the declaration in Article 20 that ‘Everyone is equal before the law” Article 21
then spells out the meaning of this in terms of anti-discrimination. It provides:
1. 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, menbership of a national minority, propert, birth, dis-
ability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European
Community and of the Treaty on European Union, and without prejudice to
the special provisions of those Treaties, any discrimination on grounds of
nationality shall be prohibited.’
The list of grounds on which discrimination is prohibited is longer than the list
found in Article 13 of the EC Treaty. This sits uncomfortably with the statement in
Article 51(2) that “[t]his Charter does not establish any new power or task for the
Community or the Union, or modify powers and tasks defined by the Treaties:’
Article 23 of the Charter deals specifically with “Equality between men and
women”, which must “be ensured in all areas, including employment, work and
Supra note 54 at 21.
s As with any soft law, the Charter may be used by courts in interpreting measures of hard law.
Supra note 4. The process of agreeing the Charter was set in motion at the Cologne summit in
June 1999. The Charter was “solemnly proclaimed” at Nice on 7 December 2000.
‘ EC, Presidency Conclusions Nice European Council Meeting, Nice, 7, 8 & 9 December 2000, art.
2, online: Europa
5 May 2001). There is, however, some uncertainty as to whether the Charter will achieve such con-
solidation; e.g. it contains new rights not previously recognized in the acquis conuntnautaire, such as
art. 13: “The arts and scientific research shall be free of constraint. Academic freedom shall be re-
spected.” Article 2 goes on to state that “the question of the Charters force will be considered later:’
61 Charter, supra note 4, art. 21 [emphasis added]. See further C. Barnard, “The Principle of Equal-
ity in the Community Context P, Grant, Kalanke and Marschall: Four Uneasy BcdfellowsT’ (1998)
57 Cambridge LJ. 352.
62 Charter, ibid.
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pay”‘ 3 It continues that “[t]he principle of equality shall not prevent the maintenance
or adoption of measures providing for specific advantages in favour of the under-
represented sex” Article 33(2) provides: “To reconcile family and professional life,
everyone shall have the right to protection from dismissal for a reason connected with
maternity and the right to paid maternity leave and to parental leave following the
birth or adoption of a child.”
Thus sex equality is now firmly established as an integral part of the Community
legal order, but discrimination on other grounds, particularly race, has become an in-
creasingly serious problem for the Member States. It was against this background that
the two Article 13 Directives were introduced.
II. The Article 13 Directives
Using the powers in Article 13(1), the Commission introduced a “package” of
four instruments in 1999:
1. a communication on certain Community measures to combat discrimination;”
2.
a Directive to establish a general framework for equal treatment in employ-
ment and occupation (the “horizontal” labour market Directive);’
3. a Directive to implement the principle of equal treatment between persons ir-
respective of racial or ethnic origin; ‘ and
a decision to establish an action plan to combat discrimination, 2001 to
2006. ‘
4.
Despite the unanimity requirement laid down in Article 13, the Race Directive and the
Horizontal Directive were adopted with considerable speed. The Horizontal Directive,
which applies to all the groups identified in Article 13, excluding sex, race and ethnic
[emphasis added].
63 Ibi
4Ibid.
COM(1999)564 final.
66EC, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for
equal treatment in employment and occupation, [2000] OJ. L. 303/16 [hereinafter Horizontal Direc-
tive].
67 EC, Council Directive 2000/43 of 29 June 2000 implementing the principle of equal treatment
between persons irrespective of racial or ethnic origin, [2000] OJ. L. 180/22 [hereinafter Race Di-
rective].
6′ EC, Council Decision 2000/750 of 27 November 2000 establishing a Community action pro-
gramme to combat discrimination (2001 to 2006), [2000] OJ. L. 303/23. The new art. 13(2) will pre-
sumably allow measures such as this to be adopted by a qualified majority in Council.
2001]
C. BARNARD – THE CHANGING SCOPE OF EoUALny?
967
origin, and nationality,’ concerns employment and occupation.’ The Race Directive
goes further, touching on areas at the outer limits of Community competence,’ despite
the insistence in Article 13(1) that the provision applies only within the limits of
Community competence. It appears that the position of J3rg Haider’s Freedom Party
in the Austrian government may have contributed to the determination of the govem-
ments of the Member States to enact a vide-ranging race discrimination measure. ”
Both Directives have been heavily influenced by the Sex Discrimination Act
1975′ and the Race Relations Act 1976,”‘ which in turn draw on Title VII of the U.S.
Civil Rights Act of 1964,”‘ and the lessons from the jurisprudence of the Court on the
sex equality Directives. Both Directives require as a minimun ” that the principles of
non-discrimination be applied to “all persons, as regards both the public and private
sectors, including public bodies” in relation to employment, the conditions for access
to employment, self-employment, and occupation; access to all types and to all levels
of vocational guidance, vocational training, advanced vocational training, and re-
training; employment and working conditions, including dismissals and pay;” and
membership of and involvement in an organization of workers or employers, or any
other organization whose members carry on a particular profession, including the
The exclusion relating to nationality can be found in supra note 66, art. 3(2).
70 This must be implemented by 2 December 2003, although states can have an additional period of
three years (e.- to 2006) to implement the provisions of the Directive on age and disability: ibid., art.
18. The Race Directive must be implemented by 19 July 2003 (supra note 67, art. 16).
71 If the Race Directive is lawfully enacted on the basis of the EC Treaty, supra note 2, art. 13, and
art. 13 does not extend the material scope of Community competence, but merely gives power to enact
non-discrimination provisions with respect to matters faling within Community competence, the list of
substantive matters covered in the Directive will have to be construed as falling within the scope of
Community law. One way to do this might be in terms of the provision in art. 308, which gives the EU
Institutions power to take appropriate measures to achieve the objectives of the Community. The objec-
tives of the Community are set out in art. 2, and include the provision of “a high level of social protec-
tion, [and] … the raising of the standard of living and quality of life’ Measures on non-discrimination
in, for instance, housing, might thus be conceptualized as concerned with the raising of the standard of
living. See recital 9 of the Race Directive, ibid., Preamble.
72See E. Guild, ‘The EC Directive on Race Discriminatiom Surprises, Possibilities and Limita-
tions” (2000) 29 Indust. LJ. 416 at 416.
(U.K.), 1975, c. 65.
74(U.K.), 1976, c. 74 [hereinafterRace Relations Act].
75Pub. L. No. 88-352,78 Stat. 241.
6 Race Directive, supra note 67, art. 6(1); Horizontal Directive, supra note 66, art. 8(l). The Direc-
tives also cannot be used as an excuse to lower existing standards (Race Directive, ibid, art. 6(2);
Horizontal Directive, ibid., art. 8(2)).
According to the Horizontal Directive, ibid, art. 3(4), Member States can provide that the Direc-
tive does not apply to the armed forces in respect of discrimination on the grounds of age and disabil-
ity.
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benefits provided for by such organizations. The Race Directive, however, goes much
further, and applies the principle of non-discrimination to other areas that may affect
long-term prospects for labour market participation:” social protection, including so-
cial security and health care; social advantages;79 education, including grants and
scholarships; and access to and supply of goods and services, including housing.9
This is considerably more ambitious than the existing Directives on sex equality,
which apply only to employment and occupation, although the Commission’s Social
Policy Agenda talks of further strengthening equality rights by making a proposal for
an equal treatment Directive based on Article 13 in areas other than employment and
occupation.
The structure of the two Directives is similar as regards content. Both prohibit di-
rect and indirect discrimination based on racial or ethnic origin (but not nationality)”
or the prohibited grounds listed in the Horizontal Directive. An instruction to dis-
criminate is also deemed to be discrimination.’ While key, controversial terms, such
as racial and ethnic origin,’ religion, and disability, are not defined, the definitions of
direct and indirect discrimination draw inspiration from those found in the context of
sex equality. Direct discrimination “shall be taken to occur where one person is
treated less favourably than another is, has been or would be treated on grounds of ra-
cial or ethnic origin.”‘ Indirect discrimination, by contrast, shall be taken to occur
“where an apparently neutral provision, criterion or practice would put persons of ra-
cial or ethnic origin at a particular 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.’ Originally, the definition
of indirect discrimination in earlier drafts of the Directives focussed on the adverse ef-
fect on an individual person or persons rather than on an individual as a member of a
78 See P. Skidmore, “EC Framework Directive on Equal Treatment in Employment: Towards a
Comprehensive Community Anti-discrimination Policy?” (2001) 30 Indust. L.J. 126.
‘ The Horizontal Directive expressly states that “[tihis Directive does not apply to payments of any
kind made by state schemes or similar, including state social security or social protection schemes”
(supra note 66, art. 3(3)).
Race Directive, ibid, art. 2(4); Horizontal Directive, ibid., art. 2(4).
SFor different approaches to defining the terms “racial and ethnic origin” in the British context, see
Guild, supra note 72 at 418, and her discussion of the “distinct community” test as described in
Mandla v. Lee, [1983] 2 A.C. 548, [1983] 1 All E.R. 1062 (H.L.) (Sikhs); Commission for Racial
Equality v. Dutton, [1989] Q.B. 783, [1989] 1 All E.R. 306 (C.A.) (“travellers”), versus the “immuta-
ble characteristics” approach.
94 Race Directive, supra note 67, art. 2(2)(a).
Ibid [emphasis added]. See also Horizontal Directive, supra note 66, art. 2(2)(b).
Race Directive, supra note 67, art. 3(1); Horizontal Directive, ibid., art. 3(1).
81 Race Directive, ibid., arts. 1, 3(2); Horizontal Directive, ibid., art. 3(2). According to the Commis-
sion, this is covered by EC Treaty, supra note 2, arts. 12, 39.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALITY?
969
group.’ This was eventually changed in the final version, but the definition still does
not make it clear that the disadvantage must be suffered by a group of persons of a
particular racial or ethnic origin in comparison with persons not of that group.
A key feature of the definition of indirect discrimination in the Race Directive is
that it is sufficient to show that the provision, criterion, or practice “would put” the af-
fected persons at a “particular disadvantage”.’ Thus, applicants do not need to show
they have suffered actual discrimination (potential discrimination is sufficient), nor do
they need to adduce statistical evidence to prove discrimination:’ This contrasts with
the definition of indirect sex discrimination developed by the Court”7 and now adopted
by Directive 97/80,”‘ which requires the production of statistical evidence showing
actual differential impact. This Directive provides:
Indirect discrimination shall exist where an apparently neutral provision, crite-
rion or practice disadvantages a substantially higher proportion of the members
of one sex unless that provision, criterion or practice is appropriate and neces-
sary and can be justified by objective factors unrelated to seex.’
The difficulties created by this definition for individual applicants can be seen in
Seymour-Smith This case raised the issue of whether the then two-year service re-
quirement prior to bringing a claim for unfair dismissal in the U.K. was indirectly dis-
criminatory against women contrary to Article 141.’ Over the period from 1985 to
1991, the proportion of men who had two or more years’ service at sixteen hours or
more per week with their current employer ranged from 72 to 77.4 percent. The pro-
portion of women in this category ranged from 63.8 to 68.9 percent. The female per-
centage as a percentage of the male percentage averaged 89.1.
The Court suggested two approaches to disparate impact. The first test is whether
a “considerably smaller proportion of women than men” was able to satisfy the two-
year requirement.’ The second test concerns the situation where statistical evidence
reveals “a lesser but persistent and relatively constant disparity over a long period:’
“This section draws on C. Barnard & B. Hepple, “Substantive Equality” (2000) 59 Cambridge U.
562 [hereinafter “Substantive Equality”].
“See the Race Relations Act, supra note 74, s. l(1)(b)(i).
“Supra note 67, art. 2(2)(b).
But see Race Directive, ibid, Preamble, recital 15.
See e-g. Bilka, supra note 20; Enderby v. Frencay Health Authority and the Secretary of State for
Health, C-127/92, [1993] E.C.R. 1-5535, [1994] 1 C..L.R. 8; Rinner-Killn, supra note 20.
9″Supra note 46.
‘ bid, art. 2(2) [emphasis added].
“Supra note 5. See “Indirect Discrimination”, supra note 19.
“EC Treaty, supra note 2 (formerly art. 119).
Se)mour-Smith, supra note 5 at para. 60.
970
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which could also be evidence of apparent indirect discrimination calling for justifica-
tion.” The ECJ did not have the evidence to propose an answer to the paragraph 61
test, but it did suggest an answer to the paragraph 60 test. It said that the statistics in
this case “do not appear, on the face of it, to show that a considerably smaller propor-
tion of women than men is able to fulfil the requirement imposed by the disputed
rule
-‘W
From an applicant’s perspective, it is fortunate that the Commission eschewed the
sex discrimination approach on the ground that it was “extremely complicated” to de-
velop statistical assessments in fields other than sex discrimination.” Instead, the defi-
nition adopted in the Article 13 Directives follows the ECJ’s approach to the concept
of indirect discrimination in the field of free movement of persons. In the leading case
of O’Flynn v. Adjudication Officer, the Court said:
[C]onditions imposed by national law must be regarded as indirectly discrimi-
natory where, although applicable irrespective of nationality, they affect essen-
tially migrant workers … or the great majority of those affected are migrant
workers … where they are indistinctly applicable but can more easily be satis-
fied by national workers than by migrant workers … or where there is a risk that
they may operate to the particular detriment of migrant workers.
As the House of Lords Select Committee on the European Union has said, however, a
definition in the case of race discrimination different from that in respect of sex dis-
crimination under Directive 97/80 “can only create confusion and increase the burden
of litigation on the courts and on employers.””o
Both the Race Directive and the Horizontal Directive contain a complex web of
derogations. Following the sex discrimination model, while indirect discrimination
can be objectively justified according to the stricter test first identified in Bilka,”‘ di-
rect discrimination can be saved only by reference to an express defence, described as
a “Genuine and Determining Occupational Requirement” in the Race Directive and as
“Occupational Requirements” in the Horizontal Directive. A more limited list of oc-
NIbl. at para. 61.
Ibid. at para. 64.
9’ U.K., H.L., Select Committee on European Union, EU Proposals to Combat Discrimination, 9th
Report, Session 1999-2000 (2000) at para. 80, online: The Stationery Office
(date accessed: 24 May 2001).
99 C-237/94, [1996] E.C.R. 1-2617 at para. 18, [1996] 3 C.M.L.R. 103.
“Co See Select Committee on European Union, supra note 98 at para. 83. See also “Substantive
Equality”, supra note 86 at 574.
‘0’ Supra note 20, recently aff’d in Kriger v. Kreiskrankenhaus Ebersberg, C-281/97, [1999] E.C.R.
1-5127, [1999] I.R.L.R. 808. See also Hill and Stapleton v. Revenue Commissioners and the Depart-
ment of Finance, C-243/95, [1998] E.C.R. 1-3739, [1998] 3 C.M.L.R. 81. For a discussion of this, see
“Indirect Discrimination”, supra note 19; “Substantive Equality”, ibid.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALTY?
cupational requirements is found in the Race Directive than in the Horizontal Direc-
tive. Thus, the Race Directive says that
Member States may provide that a difference of treatment which is based on a
characteristic related to racial or ethnic origin shall not constitute discrimina-
tion where, by reason of the nature of the particular occupational activities con-
cerned or of the context in which they are carried out, such a characteristic con-
stitutes a genuine and determining occupational requirement, provided that the
objective is legitimate and the requirement is proportionate.”
This provision is replicated in Article 4(1) of the Horizontal Directive. In addition,
Article 4(2) of the Horizontal Directive provides an occupational requirement in re-
spect of “entreprises de tendence”. In this complex provision the Directive allows na-
tional legislation that permits “churches and other public or private organisations the
ethos of which is based on religion or belief’ to discriminate on the grounds of relig-
ion where, in respect of the occupational activities at issue or the context in which
they are carried out, “a person’s religion or belief constitute a genuine, legitimate and
justified occupational requirement;’ provided that it does not justify discrimination on
another ground. Thus, this provision would continue to allow a Catholic school to re-
quire a teacher to be Catholic. The second paragraph of Article 4(2), however, goes
one stage further. these organizations can require “individuals working for them to act
in good faith and with loyalty to the organisation’s ethos.” Does this mean that a
Catholic school could dismiss one of its teachers for cohabiting or for being a single
parent, or that a firm of financial advisers could dismiss a socialist?
Specific derogations are also provided in the Horizontal Directive in respect of
disability, age, and in the context of Northern Ireland, religion or belief. In respect of
Northern Ireland, special provision is made concerning
teachers and “under-
representation of one of the major religious communities in the police service of
Northern Ireland.’*’
In respect of disability and age,'” states have the choice, appar-
ently at the insistence of the British government,'” whether to apply the Directive at
all to the armed forces. If the Directive does apply, the armed forces, like any other
employer, can take advantage of specific derogations. In respect of disability, Article 5
requires employers to make reasonable accommodation for disabled persons. This
means that employers shall “take appropriate measures, where needed in a particular
case, to enable a person with a disability to have access to, participate in, or advance
in employment, or to undergo training, unless such measures would impose a dispro-
112 Supra note 67, art. 4.
3 IbiL, art. 15(1).
Ibd, art. 3(4).
‘”Skidmore, supra note 78 at 131.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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portionate burden on the employer.”” Such steps would not constitute indirect dis-
crimination.’ The European Disability Forum had lobbied for this provision, based
on the Disability Discrimination Act 1995.'” This duty of reasonable accommodation
would also have benefited other disadvantaged groups, such as workers needing time
off to attend religious celebrations, but the Directive does not provide for this, and so
people with disabilities are placed in a privileged position.
In respect of age a number of specific derogations are permitted, provided that
they are “objectively and reasonably justified by a legitimate aim, including legitimate
employment policy, labour market, and vocational training objectives, and if the
means of achieving that aim are appropriate and necessary”” Such differences may
include fixing maximum and minimum ages for access to employment and dismiss,,d
and access to occupational social security schemes. Setting maximum age limits risks
being indirectly discriminatory against women ‘ and therefore unlawful, unless ob-
jectively justifiable. The Directive recognizes this. In Article 6(2) it expressly provides
that fixing different ages for admission or entitlement to occupational social security
schemes, invalidity benefits, or age criteria in actuarial calculations is lawful, “pro-
vided this does not result in discrimination on the grounds of sex” In Article 6(l)(c)
the Directive identifies acceptable objective justifications-“the training requirements
of the post in question or the need for a reasonable period of employment before re-
tirement.”
In addition to these more specific exceptions, Article 2(5) contains a general,
wide-ranging exception not found in the race or sex directives, derived from the Con-
vention for the Protection of Human Rights and Fundamental Freedoms.”‘ This pro-
vides the “Directive shall be without prejudice to measures laid down by national law
which, in a democratic society, are necessary for public security, for the maintenance
of public order and the prevention of criminal offences, for the protection of public
health and for the protection of the rights and freedoms of others.” As Skidmore
points out, unless the Court of Justice is vigilant, there is a risk that this derogation
could be used by Member States to perpetuate discrimination. He notes that, histori-
cally, stereotypical assumptions about gay men, Jews, Muslims, and people with
mental disabilities have been used to justify their exclusion from certain jobs in the
” Supra note 66, art. 5.
‘0 Ibid., art. 2(2)(b)(ii). There can be no direct discrimination because the Directive does not pro-
vide for the non-disabled to make a claim.
‘os (U.K.), 1995, c. 50.
“‘Horizontal Directive, supra note 66, art. 6(1).
0 See e.g. Price v. Civil Service Commission (No. 2), [1978] I.R.L.R. 3 (Ind. Trib.).
”
“‘4 November 1950, 213 U.N.T.S. 221, Eur. T.S. 5.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALY?
973
interest of national security or public health, or to protect others from these “danger-
ous” people.”2
Both the Race Directive and the Horizontal Directive permit derogations on the
grounds of positive action. Following the wording of Article 141(4),”‘ Article 5 of the
Race Directive provides, “With a view to ensuring full equality in practice, the princi-
ple of equal treatment shall not prevent any Member State from maintaining or
adopting specific measures to prevent or compensate for disadvantages linked to ra-
cial or ethnic origin:”” Article 7(1) of the Horizontal Directive!” contains an equiva-
lent provision. In respect of disability, however, Article 7(2)”‘ seems to permit the op-
posite of positive action: states can derogate from the equality principle in respect of
health and safety at work or facilities for safeguarding or promoting their integration
into the working environment.”‘
Not only do the Directives prohibit direct and indirect discrimination; they also
forbid harassment, and as we shall see, victimization. Both Directives also contain the
innovation that harassment shall be deemed to be discrimination when “unwanted
conduct related to racial or ethnic origin takes place with the purpose or effect of vio-
lating the dignity of a person and of creating an intimidating, hostile, degrading, hu-
miliating or offensive environment.”” No comparator is necessary and the test is sub-
jective. This provision circumvents the weakness of the existing Harassment Recom-
mendation and Code of Conduce ‘” by attaching the force of the remedial provisions in
the Directive to the anti-harassment provision.
Learning from the experience with sex equality, both Directives also contain sig-
nificant provisions on remedies. They envisage the right of victims to a personal rem-
edy against the discriminator, as well as the duty on each Member State to lay down
rules on penalties for breach of the Directive that must be “effective, proportionate
and dissuasive”.’ As far as the rights of victims are concerned, Member States must
provide that
”
“2 Supra note 78 at 130.
“‘ See text following note 54.
“‘ Supra note 67, art. 5.
“,5 Supra note 66.
“16 b
7 See Skidmore, supra note 78 at 131.
Race Directive, supra note 67, art. 2(3). Horizontal Directive, supra note 66, art. 2(3), is equiva-
lent
“19 EC, Commission Recommendation 92/131/EEC of 27 November 1991 on the protection of the
dignity ofiwomen and men at work, [1992] OJ. L. 49/1. See generally Bakirci, “Sexual Harassnent in
the Workplace in Relation to EC Legislation” (1998) 3 Int’l J. Discrimination & L 3.
” Race Directive, supra note 67, art. 15; Horizontal Directive, supra note 66, art. 17.
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 46
judicial and/or administrative procedures, including where they deem it appro-
priate conciliation procedures, for the enforcement of obligations under this Di-
rective are available to all persons who consider themselves wronged by failure
to apply the principle of equal treatment to them, even after the relationship in
which the discrimination is alleged to have occurred has ended.’
While this reflects Article 6 of Directive 76/207, an express role is envisaged for pub-
lic interest groups to provide some institutional support. Article 7(2) of the Race Di-
rective and Article 9(2) of the Horizontal Directive oblige the Member States to en-
sure that
associations, organisations or other legal entities which have, in accordance
with the criteria laid down by their national laws, a legitimate interest in ensur-
ing that the provisions of this Directive are complied with, may engage, on be-
half or in support of the complainant with his or her approval, in any judicial
and/or administrative procedure provided for the enforcement of obligations
under this Directive.
Thus, the British Equal Opportunities Commission, which has brought a number of
successful test cases before the Court of Justice, has provided a role model for this
provision.'”
The Directives also reverse the burden of proof in civil cases. Reflecting the prin-
ciples contained in Directive 97/80,'” the Directives provide that
when persons who consider themselves wronged because the principle of equal
treatment has not been applied to them establish, before a court or other com-
petent 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.2 4
To reinforce the effective legal protection, the Directive contains a provision on
victimization. Article 9 of the Race Directive provides that “Member States shall in-
troduce into their national legal systems such measures as are necessary to protect in-
dividuals from any adverse treatment or adverse consequence as a reaction to a com-
plaint or to proceedings aimed at enforcing compliance with the principle of equal
… Race Directive, ibid., art. 7(1); Horizontal Directive, ibid., art. 9(1). This is subject to national
rules relating to time limits for bringing actions.
‘2 See generally C. Barnard, “A European Litigation Strategy: The Case of the Equal Opportunities
Commission” in J. Shaw & G. More, eds., New Dynamics of European Union (Oxford: Clarendon
Press, 1995) 253.
” Supra note 46, arts. 3, 4.
124 Race Directive, supra note 67, art. 8; Horizontal Directive, supra note 66, art. 10.
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALITY?
treatment.2″
In addition, as with Directive 97/80, Member States are obliged to en-
sure “that the provisions adopted pursuant to this Directive, together with the relevant
provisions already in force, are brought to the attention of the persons concerned by
all appropriate means throughout their territory.”” Member States must also ensure,
following the model of Articles 3, 4, and 5 of Directive 76/207, the elimination of dis-
crimination from any legal or administrative provisions, as well as from collective
agreements or individual contracts of employment.’ ”
Perhaps the most striking feature of the Race Directive (but not the Horizontal Di-
rective) is the obligation contained in Article 13 for Member States to “designate a
body or bodies'” for the promotion of equal treatment of all persons without discrimi-
nation on the grounds of different racial or ethnic origin. These bodies may form part
of agencies charged at national level with the defence of human rights or the safe-
guard of individuals’ rights.” Not only must an agency be set up, but following the
model of the British Commission for Racial Equality, these bodies must have among
their functions providing independent assistance to victims of discrimination in pur-
suing their complaints about discrimination on grounds of racial or ethnic origin;
conducting independent investigations or surveys concerning discrimination; and
publishing reports and making recommendations on issues relating to discrimination
based on racial or ethnic origin. The Directive does not, however, make provision for
the establishment of an equivalent agency at the EU level that could help coordinate
such activities.
Consistent with the emphasis on the achievement of civil society, the Directives
envisage an important role for NGOs. The Commission has stressed the importance of
such actors in its Social Policy Agenda. It says,
The new form of governance requires the direct involvement of all key ac-
tors, in particular non governmental organisations and grassroots organisations,
to ensure the full participation of people in social policy. This is particularly the
case for the promotion of quality of social policy, as defined in this Agenda
where the specific role of social non governmental organisations should be
fully acknowledged. The participation and composition of civil society organi-
sations are therefore highly relevant.’
“2 Ibid Horizontal Directive, ibia, art. 11, refers to “dismissal or other adverse treatment”. These
articles draw on the decision of the Court of Justice in Coote, supra note 33. See M. Dougan, “The
Equal Treatment Directive: Retaliation, Remedies and Direct Effect” (1999) 24 Eu. L Rev. 664.
‘ Race Directive, ibid, art. 10. Horizontal Directive, ibid., art. 12, is substantially similar.
‘z’Race Directive, ibid, art. 14; Horizontal Directive, ibid., art. 16.
The requirement found in earlier drafts of “independence” of these bodies has been removed.
Supra note 54 at 23.
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Thus, Member States must “encourage dialogue” with appropriate NGOs that have, in
accordance with their national law and practice, “a legitimate interest in contributing
to the fight against discrimination” with a view to “promoting the principle of equal
treatment. ‘ ”
Conclusion
That these Directives were ever concluded is in itself an achievement. They have
benefited from some of the lessons learned in the field of sex discrimination, and the
remedies provisions, especially in the Race Directive, are particularly strong. In some
Member States the Directives will represent a quantum leap forward in terms of pro-
tection for the disadvantaged groups. In other Member States, however, where similar
legislation has been in existence for some time, some might lament that the Directives
embody a rather outmoded approach to the equality principle, one which manifests it-
self through the principle of non-discrimination. The prerequisite requirement of a
comparator who is better treated does not help in a highly segregated workplace, nor
does it assist those who are suffering from multiple discrimination. The principle of
non-discrimination also does little in terms of remedy. In the absence of an underlying
principle of equality, there is no obligation that the removal of the discriminatory con-
duct should result in the levelling up of conditions to the benefit of the individual or
group discriminated against. Perhaps the Charter might help to change this climate.
On another level the Directives do not focus on the achievement of equality in the
broader, more results-oriented, redistributive sense by defining equality in terms of
“fair” participation of groups in the workforce, and fair access of groups to education
and training and to goods, facilities, and services. This may involve special measures
to overcome disadvantage. Lessons could have been learned from the Fair Employ-
ment (Northern Ireland) Act 1989.”‘ This has as its main aim to promote “fair partici-
pation in employment”.’32 This term, which is not defined in the statute, is openly re-
sult-oriented. “Affirmative action” is the cornerstone of the legislation. This is defined
in the current Fair Employment and Treatment (Northern Ireland) Order 1998… as
Action designed to secure fair participation in employment by members of the
Protestant, or members of the Roman Catholic, community in Northern Ireland
by means including-
(a) the adoption of practices encouraging such participation; and
Race Directive, supra note 67, art. 12; Horizontal Directive, supra note 66, art. 14.
“‘(U.K.), 1989, c. 32.
,3 Ibid, ss. 31(1), 32(5), 36(1)(c).
“33 S.1.3162 (N.I.21) [hereinafter FETO]. This section draws on “Substantive Equality”, supra note
2001]
C. BARNARD – THE CHANGING SCOPE OF EQUALnY?7
977
(b) the modification or abandonment of practices that have or may have the ef-
fect of restricting or discouraging such participationY’
The FETO does not define “fair participation”. The Fair Employment Commission
(now merged in the Equality Commission for Northern Ireland), which administered
the legislation, adopted an interpretation involving redressing imbalances and under-
representation between the two communities in Northern Ireland. The aims are to se-
cure greater fairness in the distribution of jobs and opportunities and to reduce the
relative segregation of the two communities at work.'” This would encourage fair par-
ticipation of under-represented groups and fair access to goods, facilities, and services
through measures such as a duty on public authorities to promote equality, a duty to
monitor, and employment and pay equity plans.” On a broader level the Community
could have considered introducing the requirement of an audit in respect of its own
proposed legislation and required Member States to engage in a gender audit in respect
of all major pieces of domestic legislation.
This agenda may prove to be too ambitious for the Community at a time when
much attention is focussed on the limits of the Community competence and the princi-
ple of subsidiarity. If, however, the Union is committed to achieving genuine equality,
simply dusting down an old model might not be the best way forward.
‘ Ibi, arL 4(l), based on U.K., Northern Ireland Office, Fair Employment in Northern Ireland,
Cm. 380, session 1987-88 (London: HMSO, 1988).
‘ “Substantive Equality”, supra note 86 at 565; U.K., H.C., Northern Ireland Affairs Committee,
Fourth Report, The Operation of the Fair Enployment (Northern Ireland) Act 1989: Ten Years On.
VoL 1: Report and Proceedings of the Committee (K-C. 95-1), Sess. 1998-99 (1999).
‘3″ See the detailed proposals in B. Hepple, M. Coussey & T. Choudhury, Equality:. A New Frame-
work- Report of the Independent Review of the Enforcement of UK Anti-discrinination Legislation
(Oxford: Hart, 2000); “Substantive Equality”, ibi; C. McCrudden, ‘Mainstreaming Equality in the
Governance of Northern Ireland” (1999) 22 Fordham Int’l lJ. 1696.
