Indirect or indirect discrimination (as opposed to direct discrimination, characterized by the intention to discriminate against a certain group of people) is observed when outwardly seeming neutral provisions, criteria or practices de facto put representatives of a certain group of people at a disadvantage compared to others in a similar situation. Indirect discrimination is more widespread in society than direct discrimination, but its presence is more difficult to justify [1] . The category of indirect discrimination is firmly anchored in European Union law.
European Union Definition
A clear legislative definition of indirect discrimination appears repeatedly in various European Union directives. In particular, paragraph 1b of Article 2 of Directive 2006/54 / EC (in this case, regarding discrimination based on sex) defines indirect discrimination as follows: [2]
For the purposes of this directive, the expression “indirect discrimination” means a situation in which persons of a certain gender may be in the most disadvantaged position in accordance with externally neutral rules, criteria or procedures, compared to persons of a different gender, unless the rules, criteria or Procedures can be objectively justified by the existence of a legal goal, and the means to achieve this goal are necessary and proportionate.
Original text (German)Im Sinne dieser Richtlinie bezeichnet der Ausdruck “mittelbare Diskriminierung” eine Situation, in der dem Anschein nach neutrale Vorschriften, Kriterien oder Verfahren Personen des einen Geschlechts in besonderer Weise gegenüber Personen des anenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenenen Verfahren sind durch ein rechtmäßiges Ziel sachlich gerechtfertigt und die Mittel sind zur Erreichung dieses Ziels angemessen und erforderlich.
Similar definitions of indirect discrimination are given in earlier directives, such as Directive 2000/43 / EC (regarding discrimination based on race and origin). So, paragraph 2b of article 2 of this directive reads: [3]
Indirect discrimination occurs if outwardly neutral rules, criteria or procedures may be particularly disadvantageous for persons belonging to a particular race or ethnic group, unless the rules, criteria or procedures in question can be objectively justified by the existence of a legal purpose, and the means for the achievement of this goal is necessary and proportionate.
Original text (German)... eine mittelbare Diskriminierung [liegt] vor, wenn dem Anschein nach neutrale Vorschriften, Kriterien oder Verfahren Personen, die einer Rasse oder ethnischen Gruppe angehören, in besonderer Weise benachteiligen können, es sefenden kerfen den ein rechtmäßiges Ziel sachlich gerechtfertigt, und die Mittel sind zur Erreichung dieses Ziels angemessen und erforderlich.
Examples
Indirect discrimination includes situations in which a person’s capabilities, because of his / her belonging to a certain group, are not directly limited (this would be direct discrimination), but are not equivalent in comparison with other persons in a similar situation. For example, the mandatory requirement that waitresses wear uniforms with a short skirt can limit the access to work for women who do not accept wearing such clothes, for example, for religious or age-related reasons. Requirements and restrictions that can be objectively justified by a legal goal cannot be accepted as indirect discrimination, and the means chosen to achieve this goal are moderate and justified [4] .
Typical examples of indirect discrimination in the sense of EU law are seen in the decisions of the European Court . In addition to gender and origin, other indicators may be taken into account to determine whether indirect discrimination exists. So, among the decisions made, for example, the following can be distinguished [5] :
| Sign | A business | The essence of the matter and the decision | |
|---|---|---|---|
| Origin | Rs. C-83/14 | Placing electricity meters at 7 meters in gypsy areas with the usual standard of 1.7 meters is an indirect discrimination on the basis of origin, since such a restriction disproportionately affects gypsies, and the above reasons (security) do not justify this method. | |
| Origin | Rs. C-668/15 | Different requirements of the bank when issuing loans for customers born in the EU and abroad are not indirect discrimination, as they are not related to the nationality or race of customers and can be objectively justified. | |
| Disability | Rs. C-270/16 | The dismissal of a disabled person due to prolonged and prolonged absenteeism due to illness, although it can be assessed as indirect discrimination against the disabled, can be justified by the interests of the employer. | |
| Disability | Rs. C-335/11 | The rule that an employee, due to 120 days of absenteeism per year due to illness, can be dismissed with only a shortened notice period of one month, is an indirect discrimination against people with disabilities, as it can disproportionately affect people with disabilities and is not a justifiable measure. | |
| Sexual orientation | Rs. C-267/12 | Failure to provide a homosexual couple who has entered into a civil partnership for leave in a country in which same-sex marriage is not legalized constitutes unreasonable indirect discrimination based on sexual orientation, even if such leave is not granted to heterosexual couples who have entered into partnership. | |
| Floor | Rs. C-409/16 | General gender-neutral growth requirements (170 cm) for police officers when hired are unreasonable indirect discrimination against women, as they are disproportionately affected. | |
| Floor | Rs. C-98/15 | The calculation of unemployment benefits by the number of actual working days per week before being fired (and not by the length of the total period of work) is an unreasonable indirect discrimination against women, since women disproportionately work more than part-time work than men. | |
| Religion | Rs. C-188/15 | The ban on wearing a headscarf in the workplace may be a restriction, especially affecting certain groups of people, but this restriction may be justified by the requirement of neutrality established by the employer. |
Notes
- ↑ Youth Human Rights Education Manual: Discrimination and Intolerance . Council of Europe Date of appeal September 16, 2018.
- ↑ Richtlinie 2006/54 / EG (German) . Legal portal of the European Union (5. Juli 2006). Date of appeal September 16, 2018.
- ↑ Richtlinie 2000/43 / EG (German) . European Union Legal Portal (29. Juni 2000). Date of appeal September 16, 2018.
- ↑ Human Rights: Types of Discrimination . Ombudsman of the Republic of Latvia. Date of appeal September 18, 2018.
- ↑ Zusammenfassung ausgewählter EuGH-Entscheidungen zum Antidiskriminierungsrecht ab dem Jahr 2000 (German) . Antidiskriminierungsstelle des Bundes (12. September 2018). Date of appeal September 16, 2018.