From racism to equality? Realising the potential of European anti discrimination law

From racism to equality? Realising the potential of European anti discrimination law ENAR Policy Seminar Tulip Inn Brussels Boulevard Brussels, 6-7 October 2006 Background Paper for Participants

CONTENTS INTRODUCTION... 3 FROM LEGISLATION TO TRANSPOSITION... 4 TRANSPOSITION OF THE RACE DIRECTIVE... 4 EVALUATING A COMPREHENSIVE ANTI-DISCRIMINATION FRAMEWORK... 6 1. POSITIVE ACTION... 7 2. STRUCTURAL DISCRIMINATION... 8 3. SEGREGATION... 9 4. REASONABLE ACCOMMODATION... 10 5. MULTIPLE DISCRIMINATION... 11 6. NATIONALITY AND IMMIGRATION... 12 CONCLUSION... 13 KEY RESOURCES... 14 2

INTRODUCTION European legislation has significantly raised the level of protection against discrimination across the EU However, further efforts will be needed to ensure that the principle of non-discrimination is implemented effectively across the European Union In addition, new challenges have emerged since the adoption of the current instruments. European Commission, May 2004. The purpose of ENAR s policy seminar From racism to equality? Realising the potential of European anti-discrimination law, is to take stock of progress in the development of a comprehensive European anti-discrimination framework. ENAR s experience has demonstrated that while the anti-discrimination Directives 1 offer a high level of protection, their implementation has nonetheless demonstrated gaps in the overall legal framework for the protection against racial discrimination, compounded by inconsistent and incomplete implementation across the EU Member States. Five years after the adoption of the Directives, this seminar aims to provide a forum for evaluating the current approach and devising strategies for anti racism NGOs for the next five years. This briefing paper is divided into two main sections. The first describes the existing framework, and highlights key issues in terms of the transposition of the Directives to date. The second, more substantial, part of the report focuses on the debate concerning the efficacy of the existing tools. It asks did Europe get it right? Some Member States have chosen to go beyond the provisions of the directives. Their initiatives highlight what is missing in the race directive itself. The briefing looks at some of these issues, with a view to informing the discussion during ENAR s policy seminar. The second part of the paper provides an introduction to the issues of positive action, structural discrimination, segregation, reasonable accommodation, multiple discrimination, and the nationality and immigration exemptions. Each section provides an outline of the issue, and highlights the current European legal context, as well as describing international standards and good practice on the part of European member states. 2 1 The Race Directive : Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Employment Directive : Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. 2 ENAR would like to thank Christine Franzius, who during her traineeship with ENAR in 2006 contributed greatly to the compilation of this background paper. 3

FROM LEGISLATION TO TRANSPOSITION For many years the focus of EU action in the field of non-discrimination was on preventing discrimination on the grounds of nationality (for EU citizens) and gender. In 1997, however, the Member States unanimously approved the Treaty of Amsterdam. Article 13 of this new Treaty granted the Community new powers to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Since the Treaty of Amsterdam came into force in 1999, new EC laws, or directives, that have been enacted in the area of antidiscrimination are the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive, (2000/78/EC). Council Directive 2000/43/EC implements the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation. For objectives laid down in directives to become applicable to individual citizens, an act of transposition by national legislators is required, whereby national law is adapted to the objectives laid down in directives. Individual citizens are given rights and bound by the legal act when the directive has been transposed into national law. Since the Member States are only bound by the objectives laid down in directives, they have some discretion when transposing them into national law, taking into account specific national circumstances. If the European Commission believes that a Member State has breached Community law by failing to transpose the Directive, either in full or in part, it is entitled to initiate an 'infringement procedure' under article 226 of the EC Treaty. As part of its role as guardian of the treaties the European Commission is to publish a five-year report on both directives. The report on the Race Directive is currently overdue. Transposition of the Race Directive The European Commission is currently instigating procedures against the Member States who have not fully implemented the Directives. However it is not yet clear which states the Commission will instigate proceedings against. ENAR s own analysis demonstrates that no Member State has fully transposed the Directive. 3 Whilst in all Member States there appear to be gaps in the transposition of the Directive, some cases are worse than others. By mid 2006 most countries had fulfilled the basic requirement to adopt some legislation, however in Luxembourg the draft bill has yet to be adopted. The Race Directive has made a very significant impact on the overall picture with regard to antidiscrimination across Europe. ENAR s Shadow Report for 2005 attributed, in part, the failure of Member States to realise the potential of the directives as a lack of political will. There is an emerging 3 See Appendix: Overall Assessment of the Implementation of the Race Directive, ENAR Shadow Report 2005, pp. 34-35. 4

view that the contemporary political environment is not what it was five years ago. However the ENAR report concluded that: The Race Directive has made a very significant impact on the overall picture with regard to anti-discrimination across Europe. The extent of the impact in any one Member State of the transposition of the Race Directive is determined by a range of factors including supports offered, such as provision of information and the legal infrastructure that was previously available. The analysis by ENAR members indicates that the protection framework has been undermined by insufficient remedies and sanctions and by the gaps in the Directive. There are also serious problems when it comes to realising the role of NGOs envisaged in the Directive. However generally the analysis indicates that the establishment of the equality bodies has been positive, as is the potential of the shift in the burden of proof. ENAR members are also very concerned that the implementation of the equality legislation is being undermined by restrictive developments in other policy areas including immigration and counter-terrorism. 5

EVALUATING A COMPREHENSIVE ANTI-DISCRIMINATION FRAMEWORK The adoption of Article 13, and the subsequent directives has been hailed as a watershed in the fight against discrimination in Europe. Europe now has one of the most advanced anti-discrimination legislative frameworks in the world. However racism and discrimination continue to be very serious problems in all EU Member States; indeed ENAR s recent report on racism in Europe concluded that: more extreme forms of racism are coming to the fore. Many questions arise when assessing the impact of the EU anti-discrimination law five years after its adoption. Have the EU Member States realised the potential of the directives? Are there significant gaps in the directives that undermine their effectiveness? Is there further action the European institutions can take to enhance protections? Should the European Union invest more resources in the fight against discrimination? Is there a need for new legislation and in particular should this legislation level up protection across the anti-discrimination grounds? In short, what should be the strategy of the European anti-racism movement, and the antidiscrimination movement more generally, in the next five years? Strategic questions arise concerning the current political opportunities and threats. Questions have been raised as to whether the current composition of the European Council would contemplate additional legislation in this area. Indeed if there was an attempt to negotiate new legislation would this result in the rolling back of existing protections? During the last five years ENAR members have reported on a range of issues which are key challenges in the fight against discrimination, and for which questions remain as to whether the current legislative environment is equipped to deal with them. This second part of the briefing provides an outline of some of these issues, and is intended to inform the participants of the ENAR seminar on 6-7 October 2006 in Brussels. These issues include: positive action, structural discrimination, segregation, reasonable accommodation, multiple discrimination, and nationality and immigration. Each of the sections below provides an introduction to the issue, and highlights the current European legal context, as well as describing international standards and good practice on the part of European Union Member States. 6

1. Positive action The term positive action refers to strategies designed to counteract the effects of past discrimination and to ensure equal opportunities, such as recruitment policies which ensure that job advertisements reach potential ethnic minority candidates. Positive action should not be confused with positive discrimination. Positive discrimination is a policy or programme aimed at increasing the representation of members of groups that have traditionally been discriminated against. Positive discrimination includes the introduction of quotas and preferred recruitment from particular communities or groups. Generally international instruments recognise the importance of positive action measures, allow for their use, but do not mandate states to address the legacy of discrimination in this way. For instance the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) contains the principle of positive action but does not impose a duty. In a 2004 judgment, Connors vs. United Kingdom of 27 May 2004, the European Court of Human Rights found a positive obligation of local authorities to undertake specific measures for a Roma family. Article 5 of the Race Directive and Article 7 (1) of the Employment Directive permit Member States to maintain or adopt specific measures to prevent or compensate for disadvantages linked to any of the grounds covered, with a view to ensuring full equality. The situation in European gender law is similar. However Member States are under no obligation to undertake such measures. Despite the limited approach to positive action adopted in the European Directives a number of Member States have moved beyond this, to include positive action obligations in their domestic law. The most important measures to secure positive action towards equality in the UK are embodied in the recent legislation imposing duties to promote equality on public authorities. In Sweden, legislation puts a positive obligation on employers in both the public and private sector to make a conscious effort to promote ethnic diversity among their work forces. In Finland the Non- Discrimination Act provides that all public authorities shall seek purposefully and methodically to foster equality and consolidate administrative and operational practices that will ensure the fostering of equality and decision-making. In Greece, the adoption of positive measures for promoting equality is an obligation imposed upon the State by virtue of Art. 116.2 of the revised Greek Constitution. In Hungary the Equal Treatment Act provides for government mandated positive action in the labour market, the social and health care system, and in education. However there are critical voices which express concerns regarding positive action. Opponents believe that it is demeaning to members of minority groups, and that affirmative action wrongly sends a condescending message to minorities that they are not capable enough to be considered on their own. In Slovakia the Constitutional Court declared in October 2005 that affirmative action i.e. providing advantages for people of an ethnic or racial minority group is not compatible with the Slovak Constitution. 7

2. Structural discrimination Institutional or structural discrimination is a form of discrimination which refers to rules, norms, routines, patterns or attitudes and behaviour in institutions and other societal structures that represent obstacles to certain people in achieving the same rights and opportunities that are available to the majority of the population. Structural discrimination may be either open or hidden, and it can occur intentionally or unintentionally. The behaviour of individuals in institutions, public authorities or private agencies may be related to systematic discriminatory policies and preconceived notions concerning ethnicity, religion etc.. Conscious or subconscious actions of individuals are needed for creating and maintaining structures. Institutional discrimination often occurs in the form of indirect discrimination. The Stephen Lawrence Inquiry The Stephen Lawrence Inquiry in Great Britain was launched in 1999 to examine the failures of the police in the investigation of the murder of Stephen Lawrence, a black British teenager attacked and stabbed in 1993 by a gang of white men. The inquiry determined that the problem was not a few bad apples, but institutional racism within the police. The report on the case defines institutional racism as: the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination, through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantages minority ethnic people. The fact that discrimination is not only a personal phenomenon but may occur at the level of the state and institutional structures is recognised in various international human rights documents. For example General Policy Recommendation No. 7 of the European Commission on Racism and Intolerance of the Council of Europe (ECRI) provides that legal measures against discrimination should apply to all public authorities as well as to all natural and legal persons, both in the public and in the private sectors. The equality directives ban direct discrimination as well as indirect discrimination. Indirect discrimination is defined as: where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with others. However questions remain as to whether this provision on indirect discrimination is sufficient to combat all forms of structural discrimination. The report of the Stephen Lawrence enquiry in the United Kingdom has changed the concept of racism by accepting that racism is not necessarily deliberate. However some fear that the report creates a concept of racism without racists. If we were happy to confess our unwitting racism, nobody really feels responsible for racial violence or discrimination. Some commentators in the UK have warned that the term institutional racism is being used as an excuse to avoid tackling discrimination and is becoming counterproductive. 8

3. Segregation Segregation is defined by the ECRI as an act by which a (natural or legal) person separates other persons on the basis of one of the enumerated grounds without an objective or reasonable justification. Others have elaborated more detailed definitions: Segregation refers to that restriction of opportunities for different types of associations between the member of one racial, religious, national or geographic origin, or linguistic group and those of other groups, which results from or is supported by the action of any official body or agency representing some branch of government. 4 There are two forms of segregation: de iure segregation, which is mandated by law, and de facto segregation is caused by the separation of minority groups through practices and policies. The question of segregation has particularly come to the fore in Europe in recent years in relation to the situation of Roma communities, particularly where they find themselves living in ghettos which lack basic infrastructure. However this debate is also relevant to other ethnic and religious minorities in Europe. Segregation is named in a number of international conventions, including Article 3 of ICERD, which states that: States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. In its General Recommendation No. 19 ICERD emphasizes that the reference to apartheid may have been directed exclusively to South Africa, but the article as adopted prohibits all forms of racial segregation in all countries. While the Directives ban indirect discrimination they do not expressively name segregation, questions remain as to whether the existing EU tools are sufficient to deal with these phenomenon. For example the Network of independent experts of Fundamental Rights has called for the adoption of a Directive specifically aimed at encouraging the integration of Roma, which should promote desegregation and provide for positive action. Some Member States have explicitly banned segregation in their anti-discrimination legislation. In Hungary, in January 2004 the Equal Treatment Act (ETA) came into force, prohibiting not only direct and indirect discrimination, harassment and victimisation, but also outlawing segregation. The advantage of such a provision is that there is no need to prove that segregation creates further disadvantages as would be necessary without naming segregation. Bulgarian law contains a legal definition of racial segregation. 4 Clarke et al., The Effectiveness of Segregation and the Consequences of Desegregation, in: American Psychologist, Vol. 59, No. 6, September 2004. 9

4. Reasonable accommodation Accommodation is understood as specific action or measures ensuring that groups with specific needs enjoy equality of opportunities in all sectors of public life. Reasonable means that the measures should be proportionate to the capacities or resources of the responsible person. The concept of reasonable accommodation has traditionally been associated with securing access for people with disabilities; however it is relevant for anyone who experiences discrimination. For example in terms of religion, reasonable accommodation at work could be provided by flexible schedules allowing people to take particular days of religious holidays or refrain from work on particular days. A lack of reasonable accommodation could also be described as structural discrimination or indirect discrimination. Outside of protection for persons with disabilities international standards concerning reasonable accommodation are scarce. However this standard has been approached by a number of bodies. For example in relation to the situation of Roma communities the ECRI calls on its Member States to ensure that the questions relating to travelling within a country, in particular regulations concerning residence and town planning, are solved in a way which does not hinder the way of life of the persons concerned. 5 Article 5 of the Employment Directive rules that employers shall provide reasonable accommodation for persons with disabilities in order to guarantee compliance with the principle of equal treatment. They are to 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 a measure would impose a disproportionate burden on the employer. In the EU there are very few examples of reasonable accommodation duties applying beyond the ground of disability. In Sweden, there is a duty on employers to adopt active measures to make the workplace more inclusive of persons with different ethnic and religious backgrounds. However in the US, the Civil Rights Act of 1964 requires employers to reasonably accommodate an employee s religious observances, practices and beliefs. This law applies to companies with more than fifteen employees. If the employer claims those measures would cause an undue hardship on his business, there is an exemption from this requirement. 5 ECRI, General Policy Recommendation N 3 on combating racism and intolerance against Roma/Gypsies (1998). 10

5. Multiple discrimination The concept of multiple discrimination considers the complexity of people s identities and recognises the complexity of discrimination. There is no common language and understanding of multiple discrimination ; however different forms can be distinguished. Crenshaw describes additive discrimination as the phenomenon of double discrimination based on two different grounds. Intersectional discrimination implies a specific cumulative form of discrimination as a unique, specific synergistic situation. Intersections between different grounds of discriminations are raised frequently, but not limited to the context of gender inequality. In the EU, Roma women, migrant women, Muslim women may potentially face discrimination from their own communities as well as discrimination from the broader society on grounds of ethnicity and on the ground of gender. The intersection of racism with other forms of discrimination has been acknowledged by international bodies such as CERD and the ECRI, and particular attention has been given to the intersection between race and gender. Other approaches recognise discrimination as a phenomenon which can impact on a variety of groups, and thus measures to combat it cannot be limited to a list of named groups. The Council of Europe has introduced such an open-ended approach in Protocol 12 of the European Convention on Human Rights; this facilitates the Court in addressing multiple forms of discrimination. As we have seen, the EU anti-discrimination Directives provide different levels of protection. While the Directives do expressively declare that women are often victims of multiple discrimination, the Directives do not account for the complexity of multiple discrimination. Given the difference in protections against discrimination, there is in effect a hierarchy of protection in the European Union. This raises specific difficulties when it comes to dealing with multiple forms of discrimination, for example where discrimination is experienced on the grounds of religion and race, would the existing provisions provide redress outside of the field of employment? This concept of a single axis framework means that each ground is isolated from others, which makes it difficult for claimants who faced different forms of discrimination to explain their situation. Generally there are three approaches in tackling multiple discrimination: the first is levelling up the range of protection of grounds covered by the Directives, the second involves introducing an open list of grounds, and the third is to take account of specific intersections of discrimination grounds. Many EU Member States have gone beyond the Directives and provide for comprehensive coverage for all grounds covered by the Directives, in other words applying protections beyond the employment sector to all six grounds. Some Member States have included additional grounds for discrimination in their legislation beyond those named in the European legislation, such as France, Ireland, the Netherlands, Cyprus, Denmark, the UK and Hungary. Member States are free to adopt an open list of discrimination grounds, as in the case in Finland, Hungary, Latvia, Poland and Slovenia. 11

6. Nationality and immigration The EU has, in its own words, one of the most advanced anti-discrimination legislations in the world. This protection must be applied to all persons living in its territory. Exemptions allowed under existing anti-discrimination legislation have been mis-used by Member States to evade their obligation to ensure that asylum and immigration laws neither are discriminatory nor have discriminatory effects. In many cases it is not clear whether somebody might have been discriminated against because of his racial or ethnic origin or because of his nationality. 6 Despite the legitimate interest of States to manage migration policy, the implementation of migration policy should not serve to undermine the principle of non-discrimination. In General Recommendation No. 30, ICERD addresses discrimination against noncitizens by calling on States Parties to pay greater attention to the issue of multiple discrimination faced by non-citizens, to ensure that immigration policies do not have the effect of discriminating against persons on the basis of race, colour, descent, or national or ethnic origin. However CERD, like other international standards, does exempt distinctions that State Parties make between citizens and non-citizens, as well as legal provisions concerning nationality, citizenship or naturalisation. The Directives do not ban discrimination on grounds of nationality and immigration policy. 7 In fact they expressively exempt discriminations on these grounds; the Directives do not cover difference of treatment based on nationality and are without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status. The Directives do protect third country nationals from racial discrimination but as we have seen it is often difficult to distinguish between this and nationality discrimination. In the Prague Airport Case, the UK Court of Appeal ruled in December 2004 that the entry clearance system established by the UK and Czech government at Prague airport, was unlawfully discriminating against Roma people. Under this system, passengers pre-cleared by UK immigration officials and those who were suspected of planning to claim asylum on arrival were refused entry clearance. The Lords made a declaration that the UK government had discriminated against Roma seeking to travel to the UK by treating them less favourably on racial grounds than others, which was a breach of the Race Relations Act. Some European countries cover nationality in their anti-discrimination laws, including Hungary, Ireland, Finland, and the UK, others have non-exhaustive lists which do not exclude nationality discrimination. Further, there are countries that did not implement the exemption of Article 3(2) of the Directives in their national law, including Belgium and France. 6 There is a difference between banning discrimination on grounds of nationality and of national origin. Discrimination on grounds of national origin is to disadvantage someone, that might be a citizen of the resident country, because of a presumed foreign origin. 7 Article 12 EC prohibits discrimination on grounds of nationality, but it applies only to EU citizens. 12

CONCLUSION The adoption of the race directive marked a key turning point in European efforts to fight racism. Many of the principles elaborated in this progressive tool remain aspirational. The record on transposition to date is far from perfect. However law and practice has emerged in some countries, which goes beyond the requirements of the directive, and throws light on many issues which the directive does not address adequately. These tools include: mandatory positive action strategies, specifically targeted at overcoming the legacy of discrimination and structural discrimination; efforts to protect against nationality discrimination and to protect against discrimination in immigration policy and systems; measures to promote diversity; and approaches which account for multiple discrimination. Some Member States have recognised that the European law does not go far enough, and have taken action to address its gaps. While there is an urgent need to address the hierarchy of protection in Europe, it is clear that we should continue to learn from the experience of the Race Directive. Is the directive enough? How far can the law Some Member States have recognised that the European law does not go far enough, and have taken action to address its gaps. go in changing societies? Is levelling up in the current political environment good for anti-racism? What can be learned from the experience of transposition? Are there gaps in the law that need to be filled? Many of the concepts that have emerged in this paper are complex and intrinsically linked; often it is difficult to separate one from the other. Positive action is a key resource in overcoming structural forms of discrimination including indirect discrimination and segregation. The concept of reasonable accommodation could be identified as a key intra-institutional response to some of these challenges. It is clear that in the European Union the conditions for everyone to participate equally in society do not exist; legislation is only part of the answer to this dilemma, however five years after the adoption of the directives a number of key lessons have emerged. An honest debate on the impact of the EU law is necessary in order to provide the context for the emerging future strategy of the anti-racist movement in Europe. 13

KEY RESOURCES Cahn, C. Towards Realising a Right to Positive Action for Roma in Europe, Connors v. UK, www.errc.org ECRI (2002) Recommendation No. 7, www.coe.int/t/e/human_rights/ecri/ ENAR (2006) Changing Perspective: Shifting the Burden of Proof in Racial Equality Cases, www.enar-eu.org ENAR (2006) ENARgy: Structural Discrimination, www.enar-eu.org ENAR (2006) European and country Shadow Reports 2005, www.enar-eu.org EU Network of Independent Experts on Fundamental Rights, http://ec.europa.eu/justice_home/cfr_cdf/index_en.htm European Commission (2005) Non-discrimination and equal opportunities for all, http://ec.europa.eu/comm/employment_social/fundamental_rights/pdf/ey07/com07_e n.pdf European Commission, (2005) The Situation of Roma in an Enlarged European Union, http://ec.europa.eu/employment_social/publications/2005/ke6204389_en.pdf European Network of Independent Experts on anti-discrimination, www.migpolgroup.com Hannett, S. (2003) Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination, Oxford Journal of Legal Studies, Vol. 23, No. 1 Hollo, L. (ERIO/ERRC/Interdisciplinary Research Cell in Human Rights/MPG/OSI) (2006), Equality for Roma in Europe, A roadmap for Action: www.soros.org/initiatives/roma/articles_publications/publications/roadmap_2006010 1/equality_2006.pdf ICERD General Recommendation No. 19 (1995); No. 25 (2000); No. 27 (2000); No. 30 (2004), www.ohchr.org Lappalainen, P (2005) The blue and the yellow glass house: structural discrimination in Sweden Ontario Human Rights Commission (2001), An Intersectional Approach to Discrimination, Addressing Multiple Grounds in Human Rights Claims, Discussion paper The Stephen Lawrence Enquiry, report of an inquiry by Sir William MacPherson of Cluny, United Kingdom United Nations Durban Declaration (2001), www.un.org/wcar/durban.pdf Zappone, K (ed.) (2003) Re-Thinking Identity, The Challenge of Diversity Joint Equality and Human Rights Forum, www.equality.ie 14