Abstract
Exploring the limits of equality law
Since the expiry of the transposition period of the Racial and Employment Equality Directives, 1 national non-discrimination regimes have considerably developed. The past 10 years have been marked by the broadening of the scope of European Union (EU) non-discrimination law, 2 efforts to consolidate the definition of key legal concepts 3 as well as the constitutionalization of this area of law. 4 Accession by the EU to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) in 2010 as well as the prospect of accession to the European Convention on Human Rights (ECHR) intensifies the relevance of international law in the fight against discrimination across Europe. Domestically, legislation, court judgments and equality bodies are building on this EU and international law framework, thereby expanding the reach of non-discrimination law.
In recent years however, some member states at the Council have proven reluctant to extend the scope of EU non-discrimination legislation any further. 5 The proposal for a directive to implement the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation beyond employment and occupation to access to goods and services is still stuck in the pipelines of the EU legislative process. 6 One of the common concerns expressed by some member states and reflecting objections raised by employers and service providers is that non-discrimination law has gone far enough or may actually have gone too far already, by imposing constraints on public and private actors. 7
This special issue 8 seeks to explore the underpinnings of this concern through a detailed analysis of the use of exceptions and justifications to the prohibition of discrimination under the existing provisions of EU law and the UNCRPD. 9 For the purposes of this volume, ‘exceptions’ are situations that are excluded from the scope of non-discrimination law and where different treatment is thus allowed, whilst ‘justifications’ are situations in which non-discrimination law applies and where de facto different treatment is either required or allowed (including the limits to such requirements). How are public authorities and private operators exempted from the prohibition or justify differential treatment and how do institutions, courts and equality bodies articulate the limits of non-discrimination law? In other words, what are the main characteristics of those exceptions and justifications that are considered to be legitimate under current non-discrimination law and how do European courts, national courts and equality bodies review such an assessment?
These questions may not only help understanding the current political reluctance to broaden the scope of EU non-discrimination law but also reflect on the nature of today’s equality policy or policies. Better understanding the dynamics of developments in this field may also provide guidance to stakeholders. The underlying rationale and actual reach of this discipline depend much on the interpretation and implementation of the provisions adopted now more than a decade ago.
A threefold analytical model
The articles in this volume, therefore, all examine the limitations to equality law; they do so from three complementary perspectives. The special issue starts with (i) an analysis of the dynamics of European and international law governing selected grounds of discrimination, disability and age. This analysis pinpoints the guiding principles governing the use of exceptions and justifications in these fields from a European and comparative perspective. (ii) A reflection on the reception of European and/or international non-discrimination law in France and the UK ensues. These national case studies illustrate the way limitations on European or international non-discrimination law may be used by domestic actors alternatively as an ending or starting point for the development of national equality policies. (iii) Finally, existing limitations to non-discrimination law are tested against various conceptual models so as to make constructive suggestions in view of possible developments.
The dynamics of the law on non-discrimination on grounds of disability and age
In a set of twin articles, Lisa Waddington 10 and Elise Muir 11 investigate exceptions and justifications to the prohibition of discrimination on grounds of disability and age, respectively. The prohibition of discrimination on grounds of disability and age in employment has much in common. Both are enshrined in the Employment Equality Directive. In Mangold, 12 and despite controversies on the matter, the Court of Justice of the European Union (CJEU) made it clear that the prohibition of age discrimination is a fundamental right that ought to be protected as any other fundamental rights, 13 such as the prohibition of discrimination on grounds of disability. Furthermore, disability and age non-discrimination law are peculiar expressions of the principle of equal treatment in so far as neither is strictly ‘binary’. Disabilities are very diverse and the comparison between disabled and non-disabled persons is often difficult. As for age, it inevitably changes with time unlike most other prohibited discrimination criteria such as sex or ethnic origin. As a consequence of this non-binary nature, disability and age are the grounds where most exceptions and justifications to the duty of equal treatment can be found. The special issue pays particular attention to them starting with the first two contributions.
Despite this common starting point, the articles by Lisa Waddington and Elise Muir shed light on the very different dynamics underpinning the definition of the inner and outer boundaries of these two areas of non-discrimination law. To start with the prohibition of disability discrimination, it is driven by a powerful human rights rationale strengthened by the growing influence of the UNCRPD, which is an ambitious international human rights instrument. Although the relevant rules are more sophisticated than in most other fields of non-discrimination law (see, for instance, the disability-specific justifications to indirect discrimination and a duty to provide reasonable accommodation), Lisa Waddington stresses that these rules are designed to address the special needs of persons with disabilities. Unlike other sub-disciplines of equality law, disability non-discrimination law is asymmetrical in so far as it seeks to protect those who experience discrimination on grounds of disability to the exclusion of non-disabled persons and thus requires special tools.
In contrast, the prohibition of age discrimination in employment is primarily governed by EU law, and the wording of the Employment Equality Directive is a compromise between human rights concerns and policy constraints. The willingness of the EU legislature to protect against age discrimination is counterbalanced by a complex set of exceptions and justifications designed to preserve the possibility for decision-makers to make use of age-related distinctions to structure social policies. Elise Muir evidences that although exceptions have been interpreted narrowly, flexibility has been granted to decision-makers to justify their practices. As a consequence, the judiciary is entangled in an ever growing stream of cases questioning, on a case-by-case basis, compliance of domestic social policies with EU non-discrimination law.
These distinct dynamics result in contrasting observations on the limits of non-discrimination law. For instance, the prohibition of direct discrimination on grounds of disability is hardly controversial, while most of the case law on age discrimination involves differences of treatment with direct reference to age and vivid debates on the proportionality of restrictions on equal treatment in the pursuit of legitimate social aims. Furthermore, while the legal landscape surrounding disability non-discrimination militates in favour of treating positive action as an ‘exception’ to the prohibition of discrimination – and thus falling outside the scope of equality law and avoiding detailed scrutiny – positive action in the context of the prohibition of age discrimination is closer to a ‘justification’ that would have to be duly explained, adequate and necessary.
It naturally flows from these diverging approaches that the limits of non-discrimination law may be perceived differently in each of these two contexts. Lisa Waddington observes that limits to disability non-discrimination law may reflect antagonism from states or employers. But she also sheds light on the bright side of limitations to equal treatment duties, that is, to allow for differential treatment of persons with disabilities when this may be beneficial to them. This contrasts with the picture of age non-discrimination law painted by Elise Muir. A broad reading of the scope of the prohibition of age discrimination has brought a wide range of settings – that are very sensitive to domestic political actors – under the scrutiny of European courts. 14 Furthermore, the complex set of legislation and cases create significant problems for legal certainty in matters of age-related social policies. 15 Both aspects may feed reluctances to support a broadening of the scope of current age non-discrimination law at European level.
The reception of European and/or international non-discrimination law in France and the UK
Two subsequent articles explore the boundaries of EU equality law through country case studies. The French case study zooms in and examines the inner limits of non-discrimination law, building on the focus on disability and age introduced by the two preceding articles. Marie Mercat-Bruns indeed examines the way national courts have applied the EU legal framework on the ‘justifications’ to differential treatment on these two grounds. 16 Colm O’Cinneide and Kimberly Liu instead zoom out and invite us to consider the outer limits of UK non-discrimination law. 17 They scan through the definition of the scope and ‘exceptions’ of the discipline and critically assess the way national authorities have failed to design a coherent and principled system of protection.
As evidenced earlier in the special issue by Elise Muir, the material scope of the EU prohibition of age discrimination has been interpreted broadly by the CJEU. This empowers not only European but also national courts to check measures against non-discrimination rules as implemented and interpreted in domestic legal orders. In the particular context of differential treatment on grounds of age, this paves the way for national courts to interact with domestic decision-makers through the review of justifications for differences in treatment. As Marie Mercat-Bruns makes it very clear, national authorities in a civil law system such as France may not only implement non-discrimination law but actually go significantly beyond European standards, owing to an incisive judicial standard of scrutiny. Her article powerfully illustrates the way national courts explore the inner limits of non-discrimination law while using this tool to review the legitimacy and proportionality of a broad range of decisions made in particular by employers.
In contrast, Colm O’Cinneide and Kimberly Liu emphasize that UK national authorities, political and judicial institutions alike, have failed to use European requirements as a springboard towards a more ambitious reform of domestic non-discrimination law. They depict an original state of UK non-discrimination law, insisting on domestic reluctances to consolidate non-discrimination law. They stress that the judiciary is slow to acknowledge the constitutional value of the right to equal treatment, while political institutions tend to treat European and international non-discrimination law as setting outer limits rather than a starting point to enhance domestic equality policy.
The parallel between these two articles constitutes an invitation to nuance the frequent assumption that civil law systems struggle with non-discrimination law concepts while non-discrimination thinking is well anchored in common law system. Marie Mercat-Bruns suggests that domestic judges in a civil law country, even if there is still unease with notions such as that of ‘indirect discrimination’, may have a keen ability to make use of a new tool to engage with decision-makers. In contrast, common law judges and policymakers, who may be at the forefront of certain technical aspects of equality law, are depicted as reluctant to depart from the narrow definition of the scope of non-discrimination law in legislation unless requested to do so by higher instances. The main reason advanced by Colm O’Cinneide and Kimberly Liu to explain this phenomenon is the ‘pragmatic’ concern to avoid creating burdens on employers and the private sector in general.
These diverging approaches to the way domestic authorities may use or fail to use European and international non-discrimination law to trigger change help to explain resistance to a broadening of the scope of non-discrimination law. On the one hand, it may be that political institutions resist the transfer of powers to domestic judges that is triggered or strenghtened by the prohibition of age discrimination in employment. 18 On the other hand, a political climate characterized by the concern to preserve economic freedoms and assuming that it may be hindered by non-discrimination law as is often the case in Germany may explain objections against non-discrimination law.
Looking forward: Confronting conceptual models
The final two contributions each test recent developments and perspectives of change against pre-identified conceptual models. Andrea Broderick examines particularly dynamic areas of the case law of the European Court for Human Rights (hereafter ECtHR) against an ambitious model of substantive equality. 19 Maria Ventegodt Liisberg in turn puts forward a three-tiered system to benchmark the degree of scrutiny to be applied in case the scope of the EU prohibition of discrimination would be expanded to cover access to services. 20
The article by Andrea Broderick adds a nuance to the assertion by Colm O’Cinneide and Kimberly Liu that the case law of European Courts conveys a principled approach to non-discrimination law. Her contribution certainly outlines the significant added value of the ECtHR’s enhanced degree of scrutiny of restrictions on the rights of ‘vulnerable and disadvantaged’ social groups such as Roma or disabled persons. Nevertheless, she also stresses that that Court’s case law still falls short of genuinely tackling structural and societal imbalances detrimental to these persons, which would be needed to come closer to a substantive model of equality. In particular, she stressed that the ECtHR at times fails to examine the interaction between vulnerable groups and their environment that may be the source of societal imbalances.
Agreeing that more needs to be done to tackle obstacles to access by disabled persons to social goods, Maria Ventegodt Liisberg further explores three possible levels of review of such obstacles. The article examines examples in which access to services for disabled persons has been reviewed by courts under international human rights law, EU law as well as the law of Norway and the UK. It then measures the level of scrutiny in these cases against her three-tiered model. She argues that an adequate approach would be one that provides for an intermediate level of scrutiny. According to this intermediate solution, accessibility to services should be ensured owing to a combination of compliance with pre-established technical standards on accessibility and a duty to ensure differential treatment when it may facilitate access if not disproportionate for the service provider.
The scenery thereby depicted is that of a laboratory seeking to push forward non-discrimination law. These articles further illustrate the intense chemistry that operates between domestic, EU, ECHR and international law in the pursuit of a more balanced society. Andrea Broderick convincingly explains how the ECtHR case law has evolved and could further evolve under the influence of EU and UNCRPD law. Meanwhile, Maria Ventegodt Liisberg explains how domestic developments may be used to feed into a conceptual framework for further development. It is also remarkable that both forward looking contributions heavily focus on disability discrimination. The EU’s accession to the UNCRPD is unquestionably acting as a driving force, paving the way towards a more progressive non-discrimination agenda in the EU. 21 In contrast, the approach of the prohibition of age discrimination at EU level is more inward looking, ambiguous and, as things currently stand, less ambitious.
The strong international dimension of the debate on the limits of non-discrimination law finds its origins in the strong impulse given by the EU to the fight against discrimination after the entry into force of the Amsterdam Treaty. This has resulted from and has been accompanied by informal as well as formal European networks of experts in the field. 22 This observation in turn sheds light on domestic resistances to the further broadening of European non-discrimination law. As observed by Carlo Ruzza in the context of his research on the reception of European race and ethnic origin non-discrimination law at domestic level, 23 a multi-layered legal system presents both opportunities and challenges. Opportunities emerge from the possibility for well-structured interest groups to look and find the most appropriate level to achieve their aims, such as that of enhancing non-discrimination law. 24 Challenges lie in the fact that as a result of the use of the international or European level as a policy leverage to trigger change at national level, domestic constituencies may feel remote from the fora in which important societal choices are being made.
Thoughts and prospects
Irrespective of the angle through which one analyses the inner as well as outer limits of non-discrimination law, a number of technical problems are recurrent. Several contributions highlight the uncertainties surrounding the identification and the definition of grounds of discrimination to be covered by non-discrimination law. For instance, Lisa Waddington points at conflicting approaches to the definition of what may qualify as ‘disability’, while Colm O’Cinneide and Kimberly Liu identify forms of differential treatment (such as on grounds of caste) that UK domestic law has been slow to tackle. These two articles also interestingly illustrate the lack of clarity of some key terms such as the notion of employment that determines whether many situations fall in or out of the material scope of EU equality law.
These technical debates crystallize tensions between different models of equality as well illustrated by Andrea Broderick and Maria Ventegodt Liisberg but also between a variety of competing interests. Such competing interests include in particular EU member states’ desire to retain control over specific policies or to protect social partners’ autonomy as explained by Elise Muir in the context of age non-discrimination law. They also refer to decision-makers’ concerns to avoid regulatory burden as pointed out by Colm O’Cinneide and Kimberly Liu. Marie Mercat-Bruns indeed specifically highlights how French courts use non-discrimination law to call into question a whole set of decisions made by private employers.
As is made clear from several contributions, the tension these competing interests is often built into the design of non-discrimination law. This is very clear, for instance, from the wording the Employment Equality Directive that allows justifications for differences of treatment not only indirectly but also directly based on age (Elise Muir) or the shape of the reasonable accommodation requirement (Lisa Waddington). Yet, the design of legislation is not always clear or uncontroversial so that the question of how to tackle recurrent imbalances between competing interests lies at the heart of this special issue. Calls for greater intervention by political institutions or courts at European as well as domestic level underpin all contributions. The existence of these competing interests also explain the need to adopt a sophisticated and nuanced approach to judicial review of measures hindering access by disabled persons to their environment as usefully explained by Maria Ventegodt Liisberg.
An aspect of non-discrimination law that may deserve particular attention in the years to come relates to the definition of standards able to carry forward equality. In her closing contribution, Maria Ventegodt Liisberg sheds light of the importance of technical norms to make services more accessible by anticipation. Such standard setting may not only facilitate access by disabled persons to services but also that of all persons to a broad range of social goods. Standard setting could certainly contribute to age equality in access to insurance and banking services, for instance. This approach also conveniently allows for the tackling of equality matters through other (technical) policies and may thus facilitate policymaking at European level. 25