Expanding the List of Protected Grounds within Anti-Discrimination Law in the EU is an Equinet report which attempts to answer whether and how the expansion of the list of protected grounds in anti-discrimination law enhances the effectiveness of the anti-discrimination legal framework and its implementation.
Background of the Equinet report
Article 19 of the Treaty on the Functioning of the European Union enshrines a list of protected
grounds limited to sex, racial or ethnic origin, religion or belief, disability, age, and sexual orientation and it served as the basis for the adoption of EU Directives in the field of equal treatment. At national level, some European states have adopted lists of protected grounds which go (far) beyond this list. However, many people discriminated against are still left out of the protection of anti-discrimination law in Europe. The fact that a list of protected grounds is limited and excludes some characteristics entails an important gap in the protection of some vulnerable people in society when they are victims of discrimination. It also stands in contrast with the EU’s ambitions expressed in the Charter of Fundamental Rights, to protect everyone from discrimination on any protected ground.
This report, commissioned by Equinet and written by Dr. Sarah Ganty and Dr. Juan Carlos Benito Sanchez, attempts to answer whether and how the expansion of the list of protected grounds in anti-discrimination law enhances the effectiveness of the anti-discrimination legal framework and its implementation.
Advantages of expanding protection to new grounds
Some key advantages of expanding the list of protected grounds have been identified in the report. Firstly, expanding the list of grounds allows to name social groups in need for protection, sending a symbolic message. Secondly, if grounds are not named, there is a risk that they will not be covered by judicial interpretation and by policy and decision-making. Thirdly, structural discrimination against some specific groups has been largely documented, calling for the inclusion of explicit grounds related to these groups. Fourthly, explicitly recognising a ground implies that there is no need for equality bodies and courts to develop protracted arguments to protect individuals with reference to other less obvious or proxy grounds. Finally, some equality bodies have a mandate only for grounds that are explicitly covered, which means that recognising new grounds enhances their ability to take action. The report also found that while some reluctance to explicitly adding new grounds exists as well, these objections are much more limited than the advantages raised.
New discrimination grounds in focus
The report has a specific focus on three types of grounds. On socio-economic disadvantage the report found some confusion between socio-economic rights and discrimination due to socio-economic disadvantages. The report underlines the strong and two-way relationship between poverty and socio-economic discrimination, whereby discrimination often leads to poverty, but poverty can also lead to discrimination. On health status, most equality bodies agreed that this ground should be part of anti-discrimination legislation and that it would improve the overall effectiveness of this body of law. While there are certain overlaps between health status and disability, the report suggests that health status should be recognised as a ground on its own, since the disability ground does not cover all instances of health issues on the basis of which discrimination is likely to occur. On the grounds of gender identity, gender expression, and sex characteristics the report found strongly diverging degrees of protection in domestic anti-discrimination legislations across European countries. It suggests that these grounds should be explicitly recognised in anti-discrimination law to increase the visibility of these groups, avoid mischaracterisation, and ensure a comprehensive legal protection.
Beyond these three focus grounds, the report also discusses briefly genetic heritage, physical appearance, additional or complementary grounds related to racial or ethnic origin, and non-EU nationality. It found that these grounds should be further explored and developed to ensure a more encompassing and coherent protection under European anti-discrimination law.
In some countries, as well as in many international and EU legal texts, the list of discrimination grounds is not exhaustive as it contains an open-ended clause. The report identifies pros and cons for this solution and suggests that some of the worries and objections about it could be addressed by better defining what may constitute a ground under such an open-ended clause: ‘an objectively identifiable characteristic, whether real or perceived, shared by others which serves as a basis for social prejudice and stigma ingrained in social, political, or institutional practices.’
Recommendations to equality bodies
Finally, the report gives important recommendations to equality bodies on the role they can play in the expansion of grounds, finding that they play a decisive role in at least two important respects: on the one hand, in pushing for the introduction of new grounds and, on the other hand, in anchoring and developing newly introduced “other” grounds in the domestic legal system.
Equinet roundtable launching the report
The report will be launched and presented on 30 March 2022 (10:00-12:30 CET), at the Equinet roundtable: Rebuilding a fairer Europe after Covid-19 by extending protection against discrimination to new grounds.