The aim of this lesson is to inform you of a common EU legal framework that guarantees a working environment without discrimination. After this lesson, you should be able to describe what the EU is doing in discrimination prevention and list key EU documents.
Note: The audio is available below the introduction.
In order to be able not only to describe what discrimination is but also to combat it effectively, we must necessarily have a good legal basis on this issue. The legal order affects our everyday lives and, without it, we would not be able to enforce any of the human rights that we hold.
Discrimination constitutes a serious interference with a person’s legal status and dignity. In order to eradicate it, the legal order must provide an answer to the question of which facts constitute discriminatory grounds and which do not. The legal order must provide an answer to the question of how to proceed when discrimination has occurred. The law in this area must be, simply put, easily enforceable.
The European Union (EU) and its political and legal objectives are incompatible with the idea of discrimination. The EU is fighting discrimination. One of the manifestations of this is the EU’s legislation, which has made the legal framework for combating discrimination more or less consistent in every EU’s Member State.
The EU, through directives, is trying to make the position of the discriminated person as easy as possible and to enable the discriminated person to point out this phenomenon and eliminate it.
The anti-discrimination legislation describes the grounds of discrimination (e.g. sex, gender, sexual orientation, age, etc.), the forms of discrimination (direct, indirect, harassment, sexual harassment, instruction to discriminate), but also the very important principle of the reversal of the burden of proof.
The same serious focus on combating discrimination can also be attributed to the Council of Europe.
In this lesson, we will not only introduce the text of the legal provisions governing the elimination of discrimination in the European area, but we will also present the most relevant practice in this area through the most important decisions of well-respected international judicial authorities such as the Court of Justice of the EU or European Court of Human Rights.
Below are selected materials from which you will get an insight into this topic. Explore materials in your language and/or in English and note information that is new to you.
Listen to the podcast where we talk about human rights and human rights protection in Europe, the European Union and the six countries covered by this project. In the podcast, we also talk about effective systems of protection against discrimination both at the national level and at the European level. Also, in the podcast, we discuss current trends when it comes to protecting LGBT+Q+ workers from discrimination in the workplace. This podcast is based on a survey we conducted as part of WE PROJECT. If you want to know more, you can find the research here.
Escuche el podcast en el que hablamos sobre los derechos humanos y la protección de los derechos humanos en Europa, la Unión Europea y en los seis países cubiertos por este proyecto. En el podcast también hablamos de sistemas efectivos de protección contra la discriminación tanto a nivel nacional como a nivel europeo. Además, en el podcast discutimos las tendencias contemporáneas cuando se trata de proteger a los trabajadores LGBT+Q+: de la discriminación en el lugar de trabajo. Este podcast se basa en una encuesta que realizamos como parte de WE PROJECT. Si quieres saber más, puedes acceder a nuestra investigación completa.
Para saber mas: Consulta en la siguiente web de la Comisión Europea sobre: Recibir un trato justo es un derecho básico en la Unión Europea. Es ilegal discriminar a una persona por motivos de sexo, edad, discapacidad, origen étnico o racial, religión, creencias u orientación sexual.
Hören Sie sich den Podcast an, in dem wir über Menschenrechte und Menschenrechtsschutz in Europa, der Europäischen Union und in den sechs von diesem Projekt abgedeckten Ländern sprechen. Im Podcast sprechen wir auch über wirksame Systeme zum Schutz vor Diskriminierung sowohl auf nationaler als auch auf europäischer Ebene. Außerdem diskutieren wir im Podcast aktuelle Trends beim Schutz von LGBT+Q+ Arbeitnehmern vor Diskriminierung am Arbeitsplatz. Dieser Podcast basiert auf einer Umfrage, die wir im Rahmen von WE PROJECT durchgeführt haben. Wenn Sie mehr wissen möchten, finden Sie Forschung.
Poslušajte podkast u kome govorimo o ljudskim pravima i žaštiti ljudskih prava u Evropi, Evropskoj Uniji i u šest zemalja obuhvaćenih ovim projektom. U podkastu takođe govorimo o efikasnim sistemima zaštite od diskriminacije kako na nacionalnom nivou, tako i na evropskom nivou. Takođe, u podkastu razgovaramo o trenutnim trendovima kada je u pitanju zaštita LGBT+Q+ radnika od diskriminacije na radnom mestu. Ovaj podkast je zasnovan na anketi koju smo sproveli u okviru projekta “WE”. Ako želite da saznate više, možete pronaći istraživanje ovde.
Vypočuj si podcast, v ktorom hovoríme o ľudských právach a o ochrane ľudských práv v Európe, Európskej únii a v šiestich krajinách zahrnutých do tohto projektu. V podcaste hovoríme aj o účinných systémoch ochrany pred diskrimináciou na národnej aj na európskej úrovni a tiež diskutujeme o súčasných trendoch, pokiaľ ide o ochranu (mladých) LGBT+Q+ zamestnancov pred diskrimináciou na ich pracovisku. Tento podcast je založený na prieskume, ktorý sme uskutočnili v rámci ‘WE’ projektu.
Ak sa chceš dozvedieť viac, náš prieskum nájdeš tu.
Ak sa chceš dozvedieť viac o vývoji antidiskriminačného práva, otázkach spojených so zamestnávaním a o diskriminačných dôvodoch, ako je napríklad sexuálna orientácia, či rodová identita, preštuduj si príručku európskeho antidiskriminačného práva v českom jazyku, a to najmä na stranách 18-38, 113-122 a 171-182.
Poslušaj podcast u kojem govorimo o ljudskim pravima i zaštiti ljudskih prava u Europi, Europskoj uniji te u šest država koje su pokrivene ovim projektom. U podcastu također govorimo o učinkovitim sustavima zaštite od diskriminacije kako na nacionalnoj razini tako i na europskoj. Također, u podcastu raspravljamo i o suvremenim tendencijama kada je u pitanju zaštita LGBT+Q+ radnika:ca od diskriminacije na radnom mjestu. Ovaj podcast je nastao na temelju istraživanja kojeg smo proveli u sklopu WE PROJECT-a. Ako želiš saznati više, istraživanje možeš pronaći ovdje.
Mario: Hi, Matej. It is great to have you here. Could you tell us a bit about yourself?
Matej: Hi, Mario, thank you for having me on this podcast. As you mentioned, my name is Matej and I come from Bratislava, Slovakia, where I live and where I studied. I work for Comenius University in Bratislava and I graduated its Faculty of Law. I specialize in various aspects of law, but the most important one that has some connections to our WE Project is the right to a fair trial. For the WE Project, I lead all the bits and parts that are related to the law, however, in my free time I like traveling and hiking either here in Slovakia or abroad.
Mario: Great. You said you were our legal expert at the WE PROJECT, you did the legal analysis, the legal framework analysis. Could you tell us what is the overall situation when we speak about LGBT+Q+ workers in Europe?
Matej: Of course. First of all, I have to say that despite everything that has been done since the end of WWII, there is still much work to be done here in Europe. Thanks to the relentless work of the European Union, Council of Europe, and their institutions along with the extremely visible work of many LGBTIQ+ and human rights NGOs, LGBTIQ+ people enjoy rights and freedoms that protect them in their public life and private life being it in schools, work environment, or contact with public authorities. Also, many surveys show that more and more employers and employees are OK with having LGBTIQ+ co-workers and support them. On the other hand, surveys but our research also suggest that many LGBTIQ+ people still suffer from discrimination at their workplace, not knowing how to actually address discrimination and who to call for help. Many cases of discrimination are therefore not even reported. In general, this underreporting is a huge issue. Unfortunately, it leads to an actual status quo where those who discriminate see that there are no actual consequences for their wrong inappropriate actions. This applies especially to the new EU Member States such as Slovakia, or Croatia where the concept of speaking up for one’s rights is still seen as something new and not necessarily good because people like to keep things to themselves rather than to take action. Now, if I come back to your questions, what is the overall situation when we speak about LGBTIQ+ workers here in Europe, we have to assure them that they have the same rights as their straight peers and build up the courage in them. This is extremely important especially when we speak about transgender and intersex people and when we speak about discrimination based on gender identity. In these areas, the situation is the most problematic.
Mario: Based on your study, what would you say is the most efficient system of protection against discrimination that is offered to people facing discrimination; in our case young LGBT workers?
Matej: The situation here in Europe is mostly affected by activities of the European Union and the Council of Europe and their bodies, especially judicial bodies – the Court of Justice of the European Union and the European Court of Human Rights. The EU in its directives on equal treatment defines what is discrimination, what forms it can take, what types of discrimination are prohibited and most importantly also the principle of reversed burden of proof. More or less, every Member State copy-pasted those definitions into their national legal orders which means that the level of protection of LGBTIQ+ people in the work environment is mostly at the same level in the whole EU. This applies to Serbia too. Serbia is a non-Member State but they are actually going through a process of joining the EU which means they are obliged to adapt their legal order to be compliant with the EU law and also the EU values. Speaking about Serbia, it is also interesting to say, that the Serbian legal order protects people from discrimination based on gender identity, the gender identity is not covered by the EU law. However, I have to say, that before any case could be brought in front of the EU or CoE institutions, it must be solved by the national institutions first. It is important that what is written in the law is not only written there but is actually correctly applied in all countries and by all countries. Therefore, it is crucial for the young LGBTIQ+ workers to know that they cannot be discriminated against based on their gender or sexual orientation. It is important for them to know that they are not alone, they have to take up the courage and speak up. I would suggest for every young LGBTIQ+ person to take notes on when they were discriminated against, how, who did it, who witnessed the discrimination. It would be very helpful if they have any co-worker that witnessed what happened and that would ideally back their claims. I would suggest for them to Google any LGBTIQ+ NGOs in their country and to contact them for help as they usually know the legal frameworks or any practical tips and tricks that apply in their country that combat the discrimination.
Mario: You mentioned something called the reversed burden of proof. I am not a legal expert and I am sure that a lot of our listeners are not legal experts. Could you tell us a bit more about this?
Matej: Of course, but I have to warn you first that I will be a little lawyer this time. So, in general, the burden of proof is a legal duty that applies for establishing the truth of facts in a trial before courts. In a legal dispute, the party who claims something must also produce evidence that proves or verifies this claim. This is called the burden of proof. However, in several cases, such as in discrimination cases, the burden of proof shifts to the other party that has to disprove the claimed information. In other words, it is the employer that will have to prove to the court that they did not discriminate against the worker. Of course, this is just a general view that might vary between the Member States based on their own case law.
Mario: We all know that the law is not so boring, that is a very live field of expertise and is changing from time to time. Are there any recent movements in this regard in this field, either in the EU level or COE level that are broadening or improving the framework, anti-discrimination protection?
Matej: I think that one of the movements could be seen is even in our WE Project. We can see that the EU is aware of the situation that young LGBTIQ+ workers experience in Member States and address these issues through funding. This is important especially in the wake of a very difficult new legislation in Hungary or the situation in Poland and their, so called no LGBT zones. One of the positive reactions, was definitely, the resolution of the European Parliament declaring the EU as a zone of freedom. This resolution passed by votes of almost 500 MPs while only 141 was against this resolution. On the other hand, the EU still hasn’t adopted the new Equal Treatment Directive or the so called Horizontal Directive. This proposed directive would expand protection throughout the European Union against discrimination on the grounds of age, disability, religion or belief and sexual orientation, to the areas of social protection, healthcare, education, housing or access to goods and services. At present, these
four grounds are only covered when it comes to employment and vocational training. The grounds of sex and ethnic or racial origin are, by contrast, protected across a much broader range of social areas. Once adopted, this directive becomes a legal act of the European Union which obliges member states to achieve a particular result, in this case, to extend protection against discrimination. However, this Directive was proposed in 2008 and it’s 2021 and it still has not been adopted within European Council where, it is said, that the two Member States oppose the Directive.
When it comes to CoE, I can say that ECtHR has a vast case law regarding LGBTIQ+ rights. Take for example cases against Austria. In those cases, this Court held that States have a positive obligation to provide some means of recognition to same-sex couples (Oliari and Others, Orlandi and Others v Italy); these means of recognition must ensure that same-sex couples have access to socio-economic rights, such as tenancy right (Siegmund KARNER v. Austria). This Court held that Member States must also ensure that adoption is effectively available to single LGBTIQ individuals (E.B. v. France) and unmarried same-sex couples (X & Others v. Austria) without any direct or indirect discrimination.
Speaking about Austria, it was in case Schalk and Kopf v. Austria where ECtHR issued a very important and landmark decision when it established (for the first time) that the cohabitation of two persons of the same sex maintaining a stable relationship is no longer merely an aspect of their private life but also constitutes family life.
As of now, if we are speaking about today we are waiting for decisions in cases related to the recognition of non-binary identities, the recognition of trans parenthood and the recognition of same-sex unions. These are the cases led against respectively France, Germany, and Romania, respectively.
As I mentioned earlier, we can see that there is still much work to be done in order for achieving real equal treatment within Europe, but we can stay positive about it even nowadays as the case law has our backs!
Mario: We have six countries participating in the We project. What is the situation in these countries that are included in this study? Could you give us a short overview? I know it could be challenging, but could you give us a short overview of the situation?
Matej: Definitely challenging. This is quite a tricky question. Given the fact that this area is covered by the EU directives which means that the legislation in the Member States is more or less the same and stable. Unfortunately, it is the actual enforcement and the application of what is written in the law that could be and is problematic. From this point of view, the situation is more positive when we speak about the so-called former Member States with developed knowledge on human rights and with well working civic society. When we speak about the newer Member States or ascending ones, which means the ones that want to join the Union, such as Serbia, the situation is not that positive. People face almost every day some kind of discrimination and I am not speaking about their labour rights, only I mean about their everyday life. Take for example Slovakia, where in Slovakia they do not recognise any type of partnership between same-sex couples which is in general seen as the biggest obstacle in combating any type of discrimination against LGBTI+Q+ people. However, as I don’t want to sound pessimistic, all it takes is courage and maybe one good case brought in front of the courts that would lead to effective changes in society. Take for example Austria, where I already mentioned cases decided by the ECtHR, but Austria is a very good example for national case law as well. After all, it was the Federal Constitutional Court in Austria that decided on lifting the ban on same-sex couples adopting children, finding that there was no justification for a difference in treatment due to sexual orientation or a decision of this court from December 31st, 2018, where the Constitutional Court repeals legal provisions which distinguished between opposite-sex and same-sex couples when it comes to partnership in between them.
Mario: Thank you, Matej. It was great to talk to you.
Matej: Thank you, Mario, it’s been a great pleasure to talk to you about this very important issue.
Mario: Indeed, indeed. A very important issue and a lot of very practical advice from you, but if you want to know more about the legal framework and Matej’s study about the legal framework of discrimination protection, you can read Matej’s report on our project’s website https://we-project.eu/. Thank you.