The Case for a Considered Hierarchy of Discrimination Grounds in EU Law

Abstract

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EU anti-discrimination law

“…There is an exception for churches and other organizations with an ethos based on religion or belief (Article 4(2)); reasonable accommodation must be made for people with a disability (Article 5); direct discrimination on the ground of age can be justified in a number of situations (Article 6); and Article 2(5) contains a general justification clause. 14 There is a Proposal from the European Commission from 2008 15 to extend the protection against discrimination on the grounds covered by Directive 2000/78/EC to all areas covered by Directive 2000/43/EC. This proposal also requires Member States to designate a body for these grounds of discrimination.…”

Equality bodies

“…However, there remain some considerable challenges and a generally speaking slow progress in many areas (see, for instance, European Institute for Gender Equality, 2017). There are also important gaps in the protection against discrimination, arguably leading to a hierarchy of grounds (Bell, 2008;Howard, 2007;Lahuerta, 2016; also Howard, 2018), 52 where equal treatment on the ground of race and ethnic origin, at least at EU level, is more protected than other grounds. 53 Challenges also remain in effectively implementing legislation that has already been adopted, including correct transposition of the EU Directives; the application in practice of specific provisions such as the shared burden of proof; and the application of effective, dissuasive and proportionate sanctions to name but a few.…”

“…However, there remain some considerable challenges and a generally speaking slow progress in many areas (see, for instance, European Institute for Gender Equality, 2017). There are also important gaps in the protection against discrimination, arguably leading to a hierarchy of grounds (Bell, 2008; Howard, 2007; Lahuerta, 2016; also Howard, 2018), 52 where equal treatment on the ground of race and ethnic origin, at least at EU level, is more protected than other grounds. 53…”

From a “Common Principle of Equality” to “European Antidiscrimination Law”

“…12 This piecemeal approach reflects a compromise, based on the different levels of progress and commitment to certain forms of discrimination amongst the EU member states at this moment in time. In fact, there is no convincing reason why all the main grounds of discrimination should be systematically addressed in the same way by the law (Howard, 2006).…”