Anti-Discrimination Law and Legal Culture in Germany

Drawing on the socio-legal concept of legal culture, this chapter tries to explain the initial objections by many traditionalist legal scholars, politicians, and legal practitioners alike against comprehensive anti-discrimination regulation in Germany. It contrasts the rather weak culture of non-discrimination with a broadly shared appreciation for civil rights fostered by a long-established and extensive adjudication of the Federal Constitutional Court (‘FCC’). It can be shown that the missing national support for the new regulation has led to a very restricted transposition of the EU anti-discrimination directives. The Allgemeines Gleichbehandlungsgesetz more or less confines itself to implementing the provisions stipulated in the directives, and even contains several shortcomings and potential breaches of EU law, especially with regard the provision of public goods and services. Consequently, mobilization of non-discrimination rights has been rather weak in practice so far. However, there is good reason to conclude that anti-discrimination law has been gaining ground in Germany in recent years, and that it will be even more relevant in future. The ECJ adjudication has exerted considerable influence on the case law of the German labour courts. This might in the longer run also impact on the adjudication of the FCC with regard to the clause on non-discrimination in Article 3 Basic Law.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Incompatibility between the ‘French Republican Model’ and Anti-Discrimination Law?

A form of incompatibility between the ‘Republican’ legal and political tradition and some concepts or modus operandi of anti-discrimination law is a familiar trope of French constitutional and political narratives. This chapter seeks to revisit this common affirmation by making two main claims. It first acknowledges that specific twists and forms of tailoring imposed on anti-discrimination law rules were necessary in order to integrate them into the French legal order. It then mitigates the absoluteness of the ‘Republican’ tradition of universalism by unearthing past and present legal rules that have always allowed the constitutional principle of equality to apply only to some (groups) and/or to allow forms of differentiation. It thus concludes that much of the resistance of French legal actors to the paradigm of anti-discrimination law is political, rather than legal. Routinely alleged legal incompatibilities are largely mythical.

Italy’s (Surprising) Use of Racial Harassment Provisions as a Means of Fighting Discrimination

This chapter analyses Italian case law on racial harassment in the employment context but also beyond. NGOs, in particular, are using this new tool to fight against race discrimination. In a legal system which is not necessarily known for being at the forefront of anti-discrimination law, such a success may seem surprising. I argue that, at least in Italy, the prohibition on racial harassment has the advantage of overcoming pre-existing limitations of fighting racism via criminal law for certain cases. Moreover, the definition of harassment as derived from the EU anti-discrimination law directives avoids some of the interpretational difficulties related to direct and indirect discrimination. Thus, the case law analysed here could set an example beyond the national borders and also shed more light on a concept which has so far been flying under the radar in European anti-discrimination law.

Tackling Indirect Discrimination in Employment in France

This chapter argues that in France, the application of employment discrimination law is a mixed bag. On the one hand, labour law judges have had some difficulties with interpreting anti-discrimination law, especially when it is based on prohibited grounds linked to the person at work, such as race, and detached from the statutory view of the worker within the scope of applicable law. The need to deepen a factual analysis of context in cases of direct discrimination constitutes a challenge for civil judges more familiar with an approach based on syllogism rather than analogy and comparison. On the other hand, more recently, labour law judges have started resorting to the logic of indirect discrimination in employment which offers original ways to scrutinize collective action, including the right to strike, revealing systemic discrimination.

Enforcing Anti-Discrimination Law in Greece

This chapter analyses the causes of the courts’ limited role in the enforcement of anti-discrimination law in Greece. The authors identify substantive law barriers stemming from the courts’ conservatism to implement an unfamiliar legal framework, as well as procedural deficiencies of the individual litigation system itself. They reveal how these, separately and in combination, affect the judicial enforcement of anti-discrimination law. It is argued that anti-discrimination law will not be enforced effectively in Greece as long as it cannot be accommodated within the rules of more traditional areas of law, such as civil law, labour law, and civil procedure law. Therefore, a broader proactive enforcement strategy should be developed, associating the courts institutionally with the Ombudsman as equality body, in order to obtain remedies that would not only benefit individuals but also seek to achieve a more systematic change of policies, practices, and societal attitudes.

The Pre-Eminence of the General Principle of Equality over Specific Prohibition of Discrimination on Suspect Grounds in Czechia

This chapter shows that the general principle of equality is the pre-eminent doctrine in Czechia. It is more often and more readily applied than ground-related anti-discrimination law by courts and administrative bodies alike, and the two doctrines are often conflated. This is paradoxical, because ground-related anti-discrimination law is distinctive and arguably addresses a graver wrong: while the general principle of equality targets random arbitrariness, irrationality or unfairness, the prohibition of discrimination on specific grounds focuses on oft-repeated, systematic behaviour and practices which track deep historical and/or current disadvantages.

Introduction

The Introduction draws together the chapters’ findings in relation to the two research questions which have animated the project. The first question asked how anti-discrimination law fares in civil law jurisdictions of Europe and how it fits into them. The Introduction notes that while anti-discrimination law is still seen as a foreign transplant and a legal irritant in many places, it does not uniformly fare poorly. Its success varies and appears to depend not only on the country, but also the area of law, the actors involved, a particular concept or ground of discrimination, and has often evolved over time. The second question asked what factors influence anti-discrimination law’s fit or lack of it. ‘Legal’ as well as ‘extra-legal’ aspects seem to favour or hinder anti-discrimination law, but as they are often not always clearly separable and distinguishable, we locate four types of factors on a spectrum. On the legal side, pre-existing legislation and case law have played a role as have institutional choices. Constitutional and legal foundations and narratives, such as the myth of ‘universalism’ in France, have also influenced the success of anti-discrimination law. Finally, the wider political and social context is discussed, noting that the individual, liberty-oriented politics of common law countries, with their greater reflection of issues of cultural recognition, might be more easily compatible with anti-discrimination law, while the more communitarian, collective approach of continental European countries, with their emphasis on dignity and social-welfare solutions to social problems, might be less so.

The Impact of Anti-Discrimination Law in the Netherlands

Dutch anti-discrimination law has been quite a positive force in combating discrimination on grounds of religion in employment by contributing to an approach to manifestations of religion in the workplace that takes accommodation of religious expressions rather than prohibition as its starting point. In this way, anti-discrimination law has promoted equal access to employment for religious minorities, in particular for Muslim women. A major role in this development has been played by the primary supervisory body of anti-discrimination law, the former Equal Treatment Commission and its successor, the National Institute of Human Rights, whose decisions are analysed in the chapter.

Gender Discrimination in Romania through the Case Law of the ECtHR

This chapter explores some of the barriers to the application of non-discrimination law in Romania through the few gender discrimination cases from the country that have reached the ECtHR. Unlike the other contributions in this volume, this chapter does not focus on the national legislation on non-discrimination implementing EU law or on the national case law on sex discrimination. This is due to the poor availability of sources, but also due to the fact that the ECtHR cases offer a more comprehensive view of the domestic (mis)application of the non-discrimination principle, since they were adjudicated under Article 14 ECHR, which has much broader scope than EU anti-discrimination law as transposed in the national legislation.