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Equal treatment beyond the workplace - guide

02 July 2008
by eub2 -- last modified 02 July 2008

The Commission on 2 July 2008 adopted a proposal for a directive which provides for protection from discrimination on grounds of age, disability, sexual orientation and religion or belief beyond the workplace. This new directive would ensure equal treatment in the areas of social protection, including social security and health care, education and access to and supply of goods and services which are commercially available to the public, including housing. Eurobarometer surveys show that a large majority of Europeans support such legislation: 77% back measures to protect people from discrimination in education and 68% in access to goods and services.


What is the problem in reality?

People are often discriminated against in their daily lives because of their age, their religion, or if they are disabled or homosexual. A person may be refused entry to a bar because they have a guide dog with them. A letting agency may refuse to rent an apartment to someone because they are homosexual. Some people may be refused certain services because they are a certain age. Others may be prevented from buying property in a certain neighbourhood because they are a Muslim family.

Who is affected?

Almost everyone could find themselves in one of the above groups and could thus be subjected to discrimination, be it because they are young or old, because of their religion or belief, or because of their sexual orientation or a disability. As society ages, more people will be elderly and more people will be disabled.

Discrimination can have a devastating effect on the individuals concerned, from financial impacts (for example lower wages) to stigmatisation, isolation and loss of self esteem. Many of these consequences are impossible to quantify, but can have a devastating effect on those affected. However, society also pays the price if discrimination prevents people from achieving their full potential. It can result in lower levels of education being attained, lower employment rates, fewer people working and thus paying taxes, or increased health care costs.

How many people are affected?

According to a Eurobarometer survey conducted in February/March of this year, Europeans think that discrimination remains rife in their country, particularly when it comes to sexual orientation (51%), disability (45%), age and religion (42 % each).

Meanwhile, 15% of Europeans claim they were personally discriminated against in the last 12 months, and 3 in 10 Europeans report witnessing discrimination or harassment in the past year.

Finally, 48% think that not enough efforts are being made to fight discrimination in their country, while only 33% know their rights, should they face discrimination or harassment.

Why does Europe need to address this issue?

It is necessary to create a level playing field across Europe. Some Member States already have very extensive legislation, while others do not. Yet the right to equal treatment is fundamental and Article 13 of the Treaty gives the Commission power to propose legislation in this field.

Aren't the existing rules enough?

No. The existing EU rules (adopted in 2000) are already recognised as an effective tool to combat certain forms of discrimination: the first directive prohibits discrimination on the grounds of race and ethnic origin (2000/43/EC) in a whole spectrum of situations, extending far beyond the area of employment (i.e., in the provision of goods and services).

On the other hand, the second directive – which covers age, disability, sexual orientation and religion or belief – is limited to discrimination in the field of employment (2000/78/EC).

This different scope of protection on different grounds may be seen as constituting a form of "legal hierarchy" between the various groups affected by discrimination (for instance, between members of ethnic minorities vs. persons with disabilities). This is why the Commission is proposing to prohibit discrimination on grounds of disability, age, religion and belief as well as sexual orientation in the situations not covered by the existing EU rules, i.e. outside employment.

What about the specific forms of discrimination, such as disability?

The horizontal approach being proposed does not mean that the specificities of each type of discrimination cannot be dealt with properly. This is particularly important with regard to disability discrimination, where the notion of non-discrimination involves guarantees of accessibility and so-called reasonable accommodation.

Will this new legislation cost a lot to business?

No. Providers of goods and services will have to try and ensure equal access for disabled people, and make "reasonable accommodation". However, they are only expected to provide what is "reasonable" and this depends very much on the circumstances of the case (i.e. proportionate measures, depending on size and character of the provider, on expected costs etc.). Not discriminating against people on grounds of religion, age or sexual orientation usually costs nothing, and tapping into the spending power of these groups can be financially beneficial for businesses. There will be a transitional period of four years for ensuring accessibility. The Commission consulted business through the European Business Test Panel in 2007, and 74% of those that replied thought that consumers should be protected against discrimination on the grounds of age, disability, religion and sexual orientation. 69% of the respondents thought that new European rules protecting customers against discrimination would have no financial impact for them.

How will the protection against discrimination work in practice?

The rules will primarily act as a deterrent to those who discriminate. Nevertheless, where people think they have been discriminated against, disputes can in many cases be resolved with the help of the so called "Equality Bodies" in each Member State. All the Member States already have such a national body to deal with discrimination on grounds of gender and racial or ethnic origin.

Now they will have to have a body to help victims of discrimination on grounds of religion and faith, disability, age and sexual orientation. This could be achieved by expanding the competences of the existing Equality Bodies. In addition, associations and organisations working in the anti-discrimination field must also be allowed to help victims of discrimination.

If attempts at conciliation fail, victims of discrimination will have to plead their cases under national law, which transposes the Directive, and go before the national courts.

Are there any exemptions to the principle of equal treatment?

In certain cases, differential treatment may be justified. For instance, differences of treatment on grounds of age laid down in national laws will continue to be admissible if justified by a legitimate aim and if the means are appropriate and necessary. For instance, the Directive will not prevent the fixing of a specific age for access to education and to certain goods and services.

There is also a specific clause for insurance and banking that allows age and disability to be taken into account in risk assessment, provided that it is based on relevant and accurate statistical data.

Moreover, in access to goods and services, the Directive will only apply to commercial and professional activities, not to strictly private transactions.

As far as education is concerned, Member States will keep the option of providing for differences in admission to educational institutions based on religion. The Directive will not have any effect on measures which exist in national law concerning the status and activities of religious organisations. It will also not be possible to use the Directive to challenge national measures which ensure the secular nature of the State; countries can limit or allow the wearing or display of religious symbols at school.

Finally, the Directive does not interfere with measures which are necessary for public security, maintaining public order and preventing criminal offences, protecting health and the rights and freedoms of others.

What are the next steps?

The Commission's proposal will now pass to the European Parliament and Council of Ministers. It will have to be agreed under the normal legislative process (consultation procedure with the European Parliament and unanimity in Council) before becoming law and finally being implemented in the national legal systems of each Member State.

Source: European Commission