Equality and non-discrimination are the founding values of the European Union, as expressed in Article 2 of the Treaty on European Union. EU equality legislation is legally binding in all EU Member States and it is also transposed in EEA countries, EU candidate countries and other countries that have undertaken to approximate their national legislation to EU equality law. Countries have the obligation not only to respect and apply the EU laws themselves, but to transpose them in their national legislation to ensure that all individuals and organisations respect and apply them as well.
Charter of Fundamental Rights:
The Charter of Fundamental Rights of the EU is one of the most modern human rights and equality instruments. It assembles in a single document the fundamental rights and freedoms protected in the EU, regrouped in six chapters: dignity; freedoms; equality; solidarity; citizens’ rights and justice. Adopted in 2000, the Charter is legally binding since the entry into force of the Lisbon Treaty in 2009. It is addressed to the institutions and bodies of the EU and the national authorities of EU Member States when they are implementing EU legislation. Title III on equality contains general provisions on equality before the law and prohibition of any form of discrimination as well as more specific provisions concerning the rights of the child and of the elderly, integration of persons with disabilities, equality between women and men and linguistic diversity.
Race Equality Directive (Directive 2000/43/EC):
- Provides protection against discrimination on grounds of race or ethnic origin in employment and vocational training, working conditions, education, social protection, social advantages, membership of organisations and access to goods and services;
- Withholds protection where difference of treatment is based on nationality and is 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;
- Defines direct discrimination: where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin;
- Defines indirect discrimination: where an apparently neutral provision, criterion or practice would put persons of a racial 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;
- Defines harassment as an unwanted conduct related to racial or ethnic origin with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment;
- Defines positive action by stating that with a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin;
- Prohibits victimisation to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment;
- Defines the sharing of the burden of proof by stating that if a person who considers themselves discriminated establishes 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;
- Introduces the right to complain through a judicial or administrative procedure, also for organisations with a legitimate interest;
- Requires that sanctions for discrimination may comprise the payment of compensation to the victim and must be effective, proportionate and dissuasive;
- Allows only limited exceptions to the principle of equal treatment (only where a difference in treatment on the grounds of race or ethnic origin is a genuine and determining occupational requirement);
- Obliges all Member States to set up or designate an organisation or organisations to promote equal treatment and assist victims of racial discrimination (national equality bodies).
Framework employment Directive (Directive 2000/78/EC) against discrimination at work on grounds of religion or belief, disability, age or sexual orientation:
- Provides for the principle of equal treatment in employment and training irrespective of religion or belief, disability, age or sexual orientation;
- Uses equivalent legal definitions to the Race Equality Directive for direct and indirect discrimination, harassment, positive action, victimisation, sharing of the burden of proof, the right to complain and sanctions;
- Employers must take appropriate measures, where needed, to accommodate and enable persons with disabilities to have access to, participate in or advance in employment or undergo training. The measure must not propose a disproportionate burden, and the burden will not be considered disproportionate if it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State;
- Limited exceptions to the principle of equal treatment where the ethos of a religious organisation needs to be preserved, or where an employer legitimately needs an employee to be from a certain age group.
- This directive contains no obligation to set up a national equality body (but the majority of Member States did set up an equality body covering these grounds as well.
Gender Goods and Services Directive (Directive 2004/113/EC) implementing the principle of equal treatment between men and women in the access to and supply of goods and services:
- Provides for equal treatment of men and women in the access to and supply of goods and services accessible to the public (not applicable for the content of media and advertisement or to education);
- Prohibits any discrimination - direct or indirect - on grounds of gender, including reference to marital or family status, less favourable treatment of women related to pregnancy or maternity leave, harassment, whether of a sexual nature or not, instructions to discriminate;
- Uses equivalent legal definitions to the Race Equality Directive for direct and indirect discrimination, harassment, victimisation, positive action, sharing of the burden of proof, the right to complain and sanctions;
- Foresees no prohibition of more favourable provisions concerning the protection of women as regards pregnancy and maternity;
- Obliges all Member States to set up or designate an organisation or organisations to promote equal treatment and assist victims of sex discrimination (national equality bodies);
- Differential treatment is acceptable if justified by a legitimate objective such as the protection of victims of sexual abuse, freedom of association or organisation of unisex sporting activities, if the limitation is justified by a legitimate aim, is appropriate and necessary.
Gender Recast Directive (Directive 2006/54/EC) on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation:
- Provides protection against discrimination of men and women in access to work (including selection criteria), self-employment, occupations, vocational training, career advancement and working conditions (including dismissals);
- Prohibits any discrimination - direct or indirect - on grounds of gender, including reference to marital or family status, less favourable treatment of women related to pregnancy or maternity leave, harassment, whether of a sexual nature or not, instructions to discriminate;
- Uses equivalent legal definitions to the Race Equality Directive for direct and indirect discrimination, harassment, victimisation, positive action, sharing of the burden of proof, the right to complain and sanctions;
- Obliges all Member States to set up or designate an organisation or organisations to promote equal treatment and assist victims of sex discrimination (national equality bodies).
Work-Life Balance Directive (Directive (EU) 2019/1158) of the European Parliament and of the Council on work-life balance for parents and carers and repealing Council Directive 2010/18/EU:
- Provides the right to paternity leave that will not be subject to a prior service requirement. Enabling fathers or second parents to take at least 10 working days of leave around the time of the birth of a child – paid at a level equal to the rate for maternity leave set at EU level;
- Stipulates terms for paternity leave, parental leave and carers leave and allows for flexible working arrangements and the right for parents to request these arrangements;
- Affords an individual right to 4 months of paid parental leave, of which two months are non-transferable to help facilitate the reconciliation of work and family life;
- Introduces a new concept at EU level (carers’ leave), which enables workers caring for relatives in need of support to carers’ leave of 5 working days per year. This reference period can vary depending on the member state and the number of days can be decided on a case-by-case basis;
- Encourages effective implementation of the principles of equal treatment through adequate judicial protection of workers. To further improve the level of protections afforded to workers, equality bodies have been charged with providing independent assistance to victims of discrimination in pursuing their complaints.
Horizontal Directive Proposal – a Proposal for a Directive against discrimination based on age, disability, sexual orientation and religion or belief beyond the workplace:
The proposal was put forward by the European Commission in 2008 and is still being negotiated by the EU legislature:
- Provides for equal treatment in the areas of social protection, including social security and health care, education and access to and the supply of goods and services which are commercially available to the public, including housing;
- Uses equivalent legal definitions to the Race Equality Directive for direct and indirect discrimination, harassment, victimisation, positive action, sharing of the burden of proof, the right to complain and sanctions;
- Obliges all Member States to set up or designate an organisation or organisations to promote equal treatment and assist victims of discrimination (national equality bodies).
Pay Transparency Proposal – a Proposal for a Directive of the European Parliament and of the Council to strengthen the application of the principle of equal pay for equal work or work of equal value between men and women through pay transparency and enforcement mechanisms.
- Aims to establish pay transparency within organisations and to strengthen enforcement mechanisms, which will improve workers’ access to information on pay. Therefore, workers can detect and prove possible discrimination based on sex, making it easier to enforce equal pay;
- Upholds the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation;
- Authorises equality bodies to act on behalf or in support of either individual workers or of group of workers. This includes all workers’ including part-time workers, fixed-term contract workers, persons with a contract of employment or employment relationships with a temporary agency if they are experiencing pay discrimination. Acting under this competency, equality bodies can: request information for workers on individual pay level and average pay level broken down by sex; ask further question to employers on the gender pay gap information they have provided of at least 250 workers; access joint pay assessments of employers of at least 250 workers; cooperate with employers to remedy situations where gender pay differences are not justified; engage in any judicial or administrative procedure to enforce rights and obligations related to the principle of gender equal pay, and bring claims to court on behalf of one or several workers if the aforementioned principles have been infringed;
- Proposes to increase cooperation between equality bodies and labour inspectorates and creates a new standard for allocation of resources for equality bodies: they could receive fines from equal pay cases;
- Creates new institutional mechanisms on equal pay: monitoring bodies. These bodies are tasked with raising awareness on the principle of equal pay, tackling the root causes of the gender pay gap and collecting and aggregating data on equal pay. The mandate of “monitoring bodies” could be allocated to equality bodies, but discretion is left to Member States for deciding which institution is best suited to endorse this new role;
- Encourages the courts and other competent authorities to take account of situations of disadvantage that may arise from intersectional discrimination for individuals who are at risk from multiple forms of discrimination. The grounds of sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation can be considered in combination, which serves to develop and provide further clarification to the existing legal frameworks.
Other related and relevant directives and proposals:
- Directive 2010/18/EU implementing the revised Framework Agreement on parental leave concluded by BUSINESSEUROPE, UEAPME, CEEP and ETUC and repealing Directive 96/34/EC;
- Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC;
- Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding;
- Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security;
- Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement for workers;
- Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support, and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA;
- Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC - Annex: Framework agreement on part-time work;
- Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. This Framework Decision acts as a follow-up to Joint Action 96/443/JHA of 15 July 1996, and aims to improve and encourage judicial cooperation in this field.