The Case for a Considered Hierarchy of Discrimination Grounds in EU Law
| Date | 01 December 2006 |
| Published date | 01 December 2006 |
| DOI | 10.1177/1023263X0601300404 |
| Author | Erica Howard |
| Subject Matter | Article |
13 MJ 4 (2006) 445
THE CASE FOR A CONSIDERED HIERARCHY
OF DISCRIMINATION GROUNDS IN EU LAW
E H*
ABSTRACT
e EU has legislation, based on Article 13 EC, against discrimination on the grounds of
sex, racial and ethnic origin, relig ion or belief, disability, age and sexual orientation, but
the protection provided is not the same for all these grounds. It can be said that this EU
legislation creates a hierarchy of discr imination grounds, with racial or ethnic origin at
the top, closely followed by sex, with religion or belief, disability and sexual orientation
below this and age at the bottom. In this paper, I argue that this hie rarchy is the outcome
of political pragmatism, rather than of a delibe rate consideration of the di erent grounds.
I will suggest that a hierarchy is not nece ssarily wrong, but that a more considered decision
should be made about which grounds need stronge r protection. I propose an alternative way
of deciding this question, u sing the distinction of suspect grounds made by the European
Court of Human Rights under the ECHR .
Keywords: EU anti-d iscrimination law; E qual treatment direc tives; EU gelijke-
behandelingsrecht; Richtlijnen gelijke behandeling; UE direct ives relatives a l’égalité;
Discriminat ion grounds; Vormen van discrim inatie
§1. I N TRODUCTION
Article 13 EC empowers the European Council to take appropriate act ion to combat
discrimi nation based on sex, racial or ethnic origin, rel igion or belief, disability, age and
sexual orientation. In 2 000, the Europea n Union adopted two Directives based on this
* PhD Student, Quee n Mary, University of London.
1 Council Direct ive 2000/43/EC implement ing the Princ iple of Equal Treatment bet ween Persons
irrespect ive of Racial or Eth nic Origin [200 0] O.J. L180/22 (Race Directive); Cou ncil Directi ve 2000/78/
EC establish ing a General Frame work for Equal Treatment in Employ ment and Occupation [200 0] O.J.
L303/16 (Framework Direct ive).
Erica Howard
446 13 MJ 4 (2006)
legislative measures t aken at EU level against discri mination on grounds other than sex,
while measures aga inst sex discrimination have been in plac e in the EU from 1975.2
e 2000 Directives have been criticized3 for creating a hierarchy of discr imination
grounds, with some of t he grounds of Article 13 EC receiving st ronger protection than
other grounds. Racia l or ethnic origi n is placed at the top of the hiera rchy by the legislation
because it receives the stronges t protection. Sex takes the place below race, w ith religion
or belief, disabilit y and sexual orientation further down the hierarchy and age at the
bottom. e Race Direc tive is said to put discrim ination on the grounds of racia l or
ethnic origin at t he top of the hierarchy for three reasons: it has a much wider material
scope; it allows for very li mited exceptions; and it contains enforcement provisions
which make it easier for the vic tim to bring a claim of discr imination. ese reasons and
the di erences between t he provisions for the di erent grounds wi ll be analyzed and
possible explanations for the di erent levels of legislative protection will be given. is
is followed by a discussion of the quest ion whether a hierarchy should exi st at the EU
level; in other words, whether EU leg islation should provide more extensive protection
against d iscrimination on some grounds th an on others . e suggestion is made that a
distinction between suspect grounds a nd other grounds of discri mination, simila r to
2 e main Direc tives are: Cou ncil Direct ive 75/117/EEC on the Approximation of the Laws of t he
Member States relati ng to the Application of the Principle of Equ al Pay for Men and Women [1975]
O.J. L45/19; Council Di rective 76/207/EEC on the Implementa tion of the Principle of Equ al Treatment
for Men and Women as Regards Acce ss to Employment, Vocationa l Training and Promot ion, and
Working Conditions [1976] O.J. L39/40; and two Direc tives adopted on the b asis of Articl e 13 EC:
Council Dire ctive 2002/73/EC amending C ouncil Directive 76/207/EEC [2002] O.J. L269/15; Cou ncil
Directive 20 04/113/EC implementing the Principle of Equ al Treatment between Men and Women in
the Access to and t he Supply of Goods and Ser vices [2004] O.J. L373/37.
3 For example, Lisa Wadding ton, ‘Testing the Limits of t he EC Treaty Article on Non-Discr imination’,
28 Indust rial Law Journ al 133 (1999); Mark Bell, ‘Article 13 EC: e European Com mission’s Anti-
Discrimi nation Proposals’, 29 Industria l Law Journal 79 (2000); Waddington, ‘Article 13 EC: S etting
Priorities i n the Proposal for a Hor izontal Employ ment Directive’, 29 Indus trial Law Jour nal 176
(2000); Waddington a nd Bell, ‘More Equa l than Other s: Distingu ishing Europ ean Union Equal ity
Directives’, 38 Common Market Law Review 587 (2001); Sandra Fredman, ‘Equ ality: A New
Generation?’, 30 Indus trial Law Jour nal 145 (2001); Ursula O’Hare, ‘Enhanci ng European Equa lity
Rights: A New Reg ional Framework ’, 8 Maastricht Journal of European and Comparative Law 133
(2001); Bell, Anti-Discr imination Law and the Euro pean Union (Oxford University Press, 2002), 32
and 52; Christopher Brow n, ‘ e Race Direct ive: Towards Equality for A ll the Peoples of Europe?’,
21 Year boo k of Eu rop ean La w 195 (2002); Dagma r Schiek, ‘A New Framework on Equ al Treatment
of Persons in EC Law?’, 8 European Law Journal 290 (200 2); Bell and Waddington, ‘Re ec ting on
Inequalities in European Equality Law’, 28 European Law Review 349 (2003); Waddington, ‘ e New
Equality D irectives: Mi xed Blessings’, in: C. Costello and E . Barry, (eds.), Equality in Diversity e
New Equality Directives (Dublin Iris h Centre for European Law, 2003) 39, 47; Barba ra Liegl, Bernha rd
Perching and Birg it Weyss, Combat ing Religious and Ethnic Dis crimination in Employment F rom the
EU and Internatio nal Perspective (ENAR, 20 04), 9; Sejal Parmar, “ e European Cou rt of Justice and
Anti-discr imination Law: Some Re ections on the Ex perience of Gender Equality Ju risprudence for
the Future Inter pretation of the Rac ial Equal ity Directive ”, in: J. Niessen and I. Chopin (eds .), e
Development of L egal Instruments to C ombat Racism in a Diver se Europe (Martinus Nijho Publishers,
2004) 131.
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