The factual meaning of the concept of indirect discrimination in EC law and its relevance for the protection of minorities through anti-discrimination law.
The concept of indirect discrimination is an essential component of EC non-discrimination law. The importance of this law recently has vastly increased in terms of its material scope and covered grounds of distinction. In the year 2000, two directives have been adopted, which require member states to put in place an extensive system of protection against discrimination on a number of grounds, amongst which race, ethnic origin, religion.1
This recent expansion of EC non-discrimination law has had tremendous impact on national legal orders, bringing about in most member states wholly new non-discrimination laws. It can be expected that the European ‘acquis’ in the field of sex equality and non-discrimination on grounds of nationality will be the basis for further development and refinement of the new system of protection against discrimination, both at the European and the national levels.
Although the concept of indirect discrimination has by now become widely accepted as an essential component of anti-discrimination legislation2
, it is still surrounded by a number of complex conceptual and legal issues. Even the European Court of Justice, which has a long history of dealing with indirect discrimination cases, cannot be said to have arrived at a conclusive system of application of the concept of indirect discrimination.3
This paper aims at exploring one of the standing issues, namely the question which types of factual situations are/can be comprised by the concept of indirect discrimination. The matter is not of mere theoretical relevance, but can be placed against the background of a more fundamental inquiry into the relevance of anti-discrimination legislation for the protection of ethnic minorities.4
Put in an oversimplified manner, the more the various types of disadvantage actually experienced by members of such minorities are covered by anti-discrimination legislation, the higher the level of protection of such minorities. It is therefore useful to get a clear picture of what the concept of indirect discrimination entails in practical terms. The focus in this will be on EC law and the practice of the European Court of Justice.
The structure of the paper will be as follows. The first section consists of a general introduction, focusing on the historical development of the concept of indirect discrimination, its underlying rationale and the main issues associated with it. The subsequent section will then look at relevant literature and case-law for indications of what types of factual situations can be brought under the concept. Finally, the results of this inquiry will be assessed in terms of their relevance for minority protection, particularly in the light of the recent expansion of EC equality law.
2. Introduction: what is indirect discrimination and what is the main idea behind it?
Indirect discrimination is an invention of the American Supreme Court, which as early as in 1971 decided that discrimination also comprised seemingly neutral practices, which did not differentiate on grounds of race, sex, religion or national origin as such, but which had a significantly adverse or disparate impact on a protected group and could not be justified by business necessity or job-related practice.5
The concept was adopted in UK anti-discrimination legislation and case-law in the mid-1970’s under the name of ‘indirect discrimination’.6
Indirect discrimination was understood to occur when an apparently non-discriminatory requirement or condition which applied equally to everyone could only be met by a considerably smaller proportion of people from a protected group and which could not be justified on grounds unrelated to the protected ground.7
It is generally accepted that the European Court of Justice drew inspiration from these Anglo-Saxon concepts in developing its own conception of indirect discrimination . The concept as such was not explicitly covered by the various non-discrimination provisions in EC law, which only prohibited in general terms discrimination on grounds of nationality or sex in various fields of application. In a gradual development, starting with discrimination on grounds of nationality in the framework of the free movement provisions of the EC Treaty, and progressing to the field of equal pay and gender equality, the ECJ recognized that the general anti-discrimination provisions also prohibited forms of indirect discrimination.9
Although the Court has not used identical formulations, the various cases reveal a singular conception of indirect discrimination, consisting of the following elements:10
- The existence of a formally neutral measure;
- A disproportionate disadvantageous impact resulting from the measure on members of a group that can be related to an expressly prohibited ground of discrimination (e.g. sex, religion, ethnic origin);
- Absence of objective justification. This generally means that there must be a legitimate aim for the general measure, which must be appropriate and necessary to reach this aim.
Meanwhile, EC legislation has caught up with the case-law of the Court, and the most recent equality directives contain explicit definitions of the concept of indirect discrimination, referring to an apparently neutral provision, criterion or practice that would put persons belonging to one of the protected groups 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.11
It must be stressed, however, that a single definition of the concept of indirect discrimination still does not exist, probably due to the many unanswered questions that are surrounding it. A quick scan through literature produces the following definitions: ‘distinctions not based on one of the prohibited grounds, but with the effect of a distinction based on such ground’ 12
; ‘an unjustifiable requirement that statistically fewer members of a certain group can satisfy than society as a whole’ 13
; ‘the situation when a neutral criterion is used, but de facto persons of one sex mainly or only are affected by the criterion’ 14
From these various definitions it can be clearly seen that indirect discrimination focuses on the effect of a certain measure or practice, rather than on the reasons behind it. It recognizes that, although it may not be intended, some actions can hurt members of vulnerable groups in an unjustifiable way and may perpetuate their disadvantaged position in society. As such, it is a concept that can be used to tackle more hidden and institutionalized forms of discrimination.15
In the end, the prohibition of indirect discrimination serves the same underlying purpose as that of direct discrimination: ‘to redress perceived injustices or disadvantages being experienced by a particular group within a particular community’.16
One could say that, more specifically, the concept of indirect discrimination complements the concept of direct discrimination. According to the ECJ in one of the early judgments, the broad interpretation of a general non-discrimination provision as covering indirect discrimination was ‘necessary to ensure the effective working of one of the fundamental principles of the Community which requires that equality of treatment of workers shall be ensured in fact and in law’.17
In other words, the prohibition of discrimination is not of much use if it only tackles actions that expressly make a distinction on a prohibited ground, but not the ones that have the same effect, although formally not making such distinction.
As such, it can be linked to the notion of substantive equality, which has been developed in literature as making clear that ‘equality’ should not merely entail formal or mathematical equality, which requires that everybody is treated in exactly the same way. Substantive equality rather looks at the specific situation of each person and aims for real, material equality for all, which could very well mean that two persons need to be treated very differently in order for them to arrive in substantively equal positions.18
This linkage to substantive equality is a very important asset of the concept of indirect discrimination from the viewpoint of minority protection. Its power lies in the fact that it allows for recognizing the different starting points in social, economic and cultural aspects of various groups in society and requires that these differences are reflected in decision processes. While the prohibition of direct discrimination only focuses on disadvantageous actions directly aimed at members of minority groups, the prohibition of indirect discrimination focuses on all actions (within the material scope of the provision) and requires that the interests of these persons are taken into account for as far as possible.19
The problem with the notion of substantive equality, however, is that it raises a question without providing the answer. In aiming further than mere mathematical or formal equality, it does not offer any clue as to where the final destination is. This problem has been referred to as the ‘emptiness’ of the equality principle.20
Interesting as it may be, this paper will not go into this philosophical question; it merely takes note of its existence.
Two more issues associated with the application of the concept of indirect discrimination in legal practice must be briefly mentioned here. First, there is the question as to the appropriate system of examination for dealing with cases of indirect discrimination, more specifically: which tests should be applied in determining whether a given situation amounts to indirect discrimination? Generally speaking, it is accepted that two tests can be discerned: 1) the test to establish whether there has been a disparate impact on members of a protected group; 2) the test to determine whether the measure at stake can be objectively justified or not. Unfortunately, there is no conceptual clarity on how these tests should be carried out. For example, it is a matter of debate whether the first test includes a test of comparability or not.21
Moreover, it is unclear how disparate impact should be established: whether statistical proof is necessary and when exactly an impact should be considered to be disparate.22
The second issue is closely related to the first and concerns the allocation of the burden of proof: who needs to prove what? In this respect it should be mentioned that the new equality directives have introduced a specific system of allocation of the burden of proof in discrimination cases, alleviating the burden of proof of the applicant in a discrimination case.
This paper will not deal with these and the many more questions related to the system of examination of cases of alleged indirect discrimination. However, it is good to know that they exist.
The foregoing has aimed to draw the general picture with regard to the concept of indirect discrimination. The next section will focus on the practical meaning of indirect discrimination: how it is conceived in literature as well as how it has been applied in practice by the European Court of Justice.
3. Forms that indirect discrimination can take according to literature and jurisprudence with a special focus on EC law.
When looking at the aforementioned definitions of indirect discrimination in literature, one perceives that, according to most authors, indirect discrimination must be concerned with a distinction, requirement
, causing the disparate impact. According to this reading of the concept, cases of indirect discrimination will always have as a starting point a particular action by a particular person or entity.
More specifically, two forms of indirect discrimination are considered to appear in practice:23
- Situations in which a neutral criterion is applied, which is harder to satisfy for members of the protected group. An example is the granting of pension facilities to persons working full-time, thereby excluding part-time workers, who are mainly women.
- Situations in which a general rule/practice, which does not apply a certain criterion, disadvantages disproportionately more people of the protected group. The typical example here is a safety requirement according to which all persons riding motorcycles must wear safety helmets, which mainly disadvantages Sikh persons, who have to wear a turban according to their religion.
These are thus the typical forms indirect discrimination is believed to take. In each case, it is possible to determine the exact causation of the disparate impact: the contested criterion, requirement or provision.
A small minority takes a broader view, however.24
They shift the main focus from the action causing the disparate impact to the disparate impact itself. For example, Sjerps asserts that the majority view excludes an important type of cases that, according to her, should also be considered to constitute indirect discrimination. She points to situations in which the disparate impact is the final outcome of a complex process, making it impossible to single out a specific action or criterion that has caused it.25
Turning to the case-law of the ECJ, the following can be said. At first glance, the jurisprudence seems to affirm the majority view. When going through the impressive pile of case-law of the ECJ, one cannot but conclude that the facts underlying the cases all seem to constitute one of the above-mentioned types of indirect discrimination, and mostly the first type.
A random selection of cases can illustrate the point. An example of the first type in the field of free movement can be found in the Data-processing contracts case26
. The dispute involved Italian legislation providing that only those companies in which all or a majority of their shares were either directly or indirectly in Italian public or state ownership were allowed to conclude contracts with the Italian state. The Court did not accept this rule and stated that ‘the principle of equal treatment (…) prohibits not only overt discrimination by reason of nationality, but also all covert forms of discrimination which, by the application of other criteria of differentiation, lead in fact to the same result.’
An example of the second type in the field of free movement is the Boussac case27
, in which a provision of German civil procedure law was at stake. According to this provision, for technical reasons a simplified recovery procedure was available for debts expressed in the national currency. This was claimed to constitute indirect discrimination, which was accepted by the Court: ‘there is no doubt that a national law which subjects access to courts to conditions relating to the currency in which debts are expressed might in fact place creditors established in the other Member States in a less favorable position than creditors established on national territory’.
The Sabbatini case28
constitutes an example of the first type in the field of sex equality. In this case, the Civil Service Regulations of the Communities were contested, of which a certain provision held that ‘An official loses entitlement to the allowance29
, if marrying a person who, at the time of the marriage, does not fulfill the conditions for the grant of that allowance, he or she does not become the head of the family’. This person was usually the husband, except in case of his disability. According to the Court, the provision in fact created a difference of treatment as between male and female officials, which amounted to indirect discrimination.
Thus, so far it seems that indirect discrimination always involves a single measure or provision to which the disparate impact can be attributed. However, in one specific sub-area of EC equality legislation, the picture is slightly different. Examination of the case-law in the field of equal pay reveals that the ECJ there has adopted a more inclusive approach. In the Enderby case30
, two separate collective bargaining processes had led to a difference in pay between two different professions that were considered to be of equal value. The lower paid profession was mainly occupied by women, and thus there was a situation of disparate impact on women. The Court explicitly recognized that the source of this disparate impact could not be identified: ‘First, it is not a question of de facto discrimination arising from a particular sort of arrangement such as may apply, for example, in the case of part-time workers. Secondly, there can be no complaint that the employer has applied a system of pay wholly lacking in transparency since the rates of pay of NHS speech therapists and pharmacists are decided by regular collective bargaining processes in which there is no evidence of discrimination as regards either of those two professions.’ Still, the Court accepted that there was a prima facie case of indirect discrimination: ‘However, if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid.’
Another example of a more flexible approach can be found in the Royal Copenhagen A/S case31
, , in which there was an average difference in pay between men and women within one company, but the exact cause of this disparate impact could not be established, as the determination of the level of pay depended on a number of criteria, one of which was individual output. The Court stated that, if ‘in a system such as that in the main proceedings (…) it is not possible to identify the factors which determined the rates or units of measurement used to calculate the variable element in the pay (…), the objective of not depriving workers of any effective means of enforcing the principle of equal pay may require the employer to bear the burden of proving that the differences found are not due to sex discrimination’. Earlier on, the Court had already found in the Danfoss case32
, that, ‘where an undertaking applies a system of pay that is wholly lacking in transparency it is for the employer to prove that his practice in the matter of wages is not discriminatory if a female worker establishes, in relation to a relatively large number of employees, that the average pay for women is less than that for man’. The circumstance that these statements are framed in terms relating to the allocation of the burden of proof should not detract attention from the fact that in principle, the concept of indirect discrimination has been opened up here to comprise cases in which there is a disparate impact, of which the exact cause cannot be established.
This more inclusive approach can only be found in equal pay cases. Still, the jurisprudence of the ECJ in this area makes clear that in theory, ‘indirect discrimination’ can be interpreted as to comprise not only situations in which the action or provision causing the disparate impact can be identified, but also situations in which only a clear disparate impact can be discerned, the direct causing factor remaining obscure.
4. Assessment in the light of the protection of minorities
The opening-up by the ECJ of the concept of indirect discrimination in equal pay cases offers great potential for the protection of minorities within the EU. In view of the recent expansion of EC equality law into the field of racial/ethnic and religious discrimination, expanding the factual meaning of indirect discrimination in general would entail broader coverage by anti-discrimination law of the various forms of disadvantage suffered by persons belonging to minority groups.
After all, ethnic and religious minorities often suffer from disadvantages that cannot be traced back to a single measure or action, but which do raise suspicions of being connected to discriminatory attitudes. A telling example can be found in a high profile case before the European Court of Human Rights (ECHR) involving the alleged racial discrimination of Roma children in the Czech Republic.33
, A disproportionate number (75 per cent) of Roma children had been placed in special schools on account of their limited mental capabilities. On average, Roma children constituted 80 per cent of all students receiving special education. This number was said to show that the Roma children had been victims of racial discrimination, although the applicants could not establish which practices/regulations/criteria exactly had caused the disparate impact . The ECHR stated that discrimination could not be proven, deciding that no violation of the non-discrimination principle had taken place.
Dealing with such a case within the framework of indirect discrimination as developed in EC law could very likely lead to a different outcome, given the principle of sharing of the burden of proof.35
Be this as it may, the ECJ so far has only applied the broader conception of indirect discrimination in the field of equal pay; it remains to be seen whether this approach will be adopted in other areas as well. Supposedly, the definitions of the most recent equality directives would allow such opening-up. Tobler has already remarked that these definitions not only speak of conditions or requirements, but also of practices with a disproportionate disadvantageous effect on protected groups, which could point to a broader understanding of indirect discrimination.36
However, it must be stressed here that, although such opening-up of the concept of indirect discrimination could prove to be very beneficial in terms of the protection of minorities, it would also bring with it a number of difficulties. Questions with regard to the required standard of proof and the required degree of responsibility in order to determine liability would have to be resolved, as well as the question as to which remedies would be suitable. However, this should not detract from the fact that, in principle, a broad understanding of the factual meaning of indirect discrimination would be a very powerful tool in tackling discrimination of the vulnerable groups in our societies.
This paper has touched upon the issue of the factual meaning of indirect discrimination. It has aimed to show that different understandings of what constitutes indirect discrimination exist, with important implications for the actual level of protection provided by the prohibition of indirect discrimination in EC law.
Marjolein Busstra is a PhD student at the Erasmus Universiteit Rotterdam.
1. Directive 2000/43 of 29 June 2000, on racial and ethnic discrimination and Framework Directive 2000/78 of 27 November 2000, on equal treatment in labour relations.
2. There are exceptions, however. The Canadian Supreme Court, for example, has not adopted the concept or an equivalent thereof in its system of application of the equality principle.
3. J. Gerards, Rechterlijke toetsing aan het gelijkheidsbeginsel, SDU, 2002, p. 221-362.
4. This is the subject matter of the PhD research project in which the author is currently involved.
5. Loenen, T., ‘Indirect discrimination: oscillating between containment and revolution’, Non-discrimination law: comparative perspectives, T. Loenen and P. Rodrigues (eds.), Martinus Nijhoff, 1999, p. 196-7.
6. McCrudden, C., ‘Changing notions of discrimination’, Equality and discrimination: essays in freedom and justice, S. Guest and A. Milne (eds.), Franz Steiner Verlag Wiesbaden GMBH, 1985, p. 83-4.
7. This definition still applies in a number of cases. More information can be found on the website of the Commission for Racial Equality: http://www.cre.gov.uk/legal/rra_discrimination.html.
8. C. Tobler, Indirect discrimination, a case study into the development of the legal concept of indirect discrimination under EC law, Intersentia, 2005, p.91-96.
9. For an extensive description of this development, see Tobler 2005, p. 99-278.
10. Tobler 2005, p. 211.
11. Tobler 2005, p. 296-7.
12. J. Gerards, Rechterlijke toetsing aan het gelijkheidsbeginsel, SDU, 2002, p. 13; translation provided by the author.
13. Morris, A.J., ‘On the normative foundations of indirect discrimination law: understanding the competing models of discrimination law as Aristotelian forms of justice’, Oxford Journal of Legal Studies, 1999, 2, p. 199.
14. Asscher-Vonk, I, ‘Towards one concept of objective justification?’, Non-discrimination law: comparative perspectives, T. Loenen and P. Rodrigues (eds.), Martinus Nijhoff, 1999, p. 43.
15. Loenen 1999, p. 198.
16. Ellis, E., ‘The definition of discrimination in European Community Sex Equality Law’, European Law Review, 1994, vol. 19, no. 6, p. 563.
17. Sotgiu, Case 152/73 (1974) ECR 153.
18. K. Henrard, Mensenrechten vanuit internationaal en nationaal perspectief, BJU, 2006, p. 218.
19. McCrudden 1985, p. 84.
20. Kaufman, M.J., ‘Rhetorical questions concerning justice and equality in educational opportunities’, Loyola University Chicago Law Journal, 2005, p. 495-499.
21. Gerards 2002, p. 57-79.
22. Loenen 1999, p. 208.
23. Drijber, B.J., Prechal, S., ‘Gelijke behandeling van mannen en vrouwen in horizontaal perspectief’, Sociaal Economische Wetgeving, 1997, p. 124; Henrard 2006, p.229-230.
24. See for example Loenen 1999, p. 195, who speaks of ‘all kinds of practices, measures or legal provisions (…) that have an adverse effect’.
25. Sjerps, I., ‘Het concept van indirecte discriminatie’, In Concreto, bijdragen over rechtsvorming gelijke behandeling, C.E. Van Vleuten (ed.), Ministerie van Sociale Zaken en Werkgelegenheid, 1994, p. 89.
26. C-3/88, (1989), ECR 4035.
27. Case 22/80, (1980) ECR 3427.
28. Case 32/71 (1972) ECR 345.
29. This was an expatriation allowance.
30. Case 127-92, ECR I-5535.
31. Case C-400/93, ECR I-1275.
32. Case 109/88, ECR 3199.
33. D.H. e.a. v. Czech Republic, 7 February 2006, accessible at www.echr.coe.int (HUDOC).
34. They did point to some possibilities, such as the inappropriateness of the tests used, but no clear cause could be established.
35. See the paper of ms. M. Ambrus for an explanation of this principle.
36. Tobler 2005, p. 284, 286.