Introduction to EU Anti-discrimination Law

SCHMUCKBILD + LOGO

BREADCRUMB

You are here: Home - Modules overview - Module 2 - Exceptions to the principles of non-discrimination

INHALT

Module 2:
Exceptions to the principles of non-discrimination

 

There are several key exceptions to the general principles of non-discrimination which apply in both the Race and Framework Directives as well as the Gender Directives: genuine occupational requirements; and positive action measures.

In relation to direct and indirect discrimination, an exception to the general principle of non-discrimination applies where there are genuine occupation requirements relating to a protected characteristic. There will be no unlawful discrimination where it can be shown that:

  • by reason of the nature of the particular occupational activities or context in which they are carried out;
  • the characteristic (race, religion or belief, sexual orientation, disability or age) is a genuine and determining occupational requirement;
  • provided the objective is legitimate and the requirement is proportionate.

Example:

A charity works with gay men and women that have suffered bullying at work and in education, or violence relating to their sexual orientation. They want to only employ gay counsellors as the NGO believes they would be better able to relate to the gay victims and provide advice. This would probably be a genuine occupational requirement and not be unlawful discrimination.

You may access previous seminar papers on this subject matter here.

There is also a specific exception relating to genuine occupational requirements and religion or belief under the Framework Directive. This is examined in module 3 on religion or belief.

Positive action provisions in the Race and Framework Directives are a different type of exception. Their aim is to permit measures that prevent or compensate for the disadvantage suffered by the protected groups in employment (Race and Framework Directives) or other sectors such as education and the provision of services (Race Directive). The aim of positive action provisions is therefore to promote greater equality through policies, programmes or other measures. Case law has established that in order to be lawful positive action measures must:

  • address a particular disadvantage of a group which is supported by evidence;
  • be proportionate; and
  • only continue as long as the disadvantage continues.

It does not, however, permit positive discrimination in favour of a protected group where one group is automatically given preferential treatment. This would be unlawful discrimination.

Example:

A local fire service identifies from its monitoring data that women are under-represented as fire fighters. The service makes clear in its next recruitment exercise that applications from women are welcome and holds an open day for potential women applicants at which they can meet women fire fighters. However, the fire service must not guarantee that all women will get through the initial stages of the application process, regardless of their suitability.

The only exception to this is the protected group of disabled persons. It is not unlawful to provide preferential treatment to disabled persons. This recognises that disabled people generally face many barriers to participating in work and other activities. You can choose to treat a disabled job applicant more favourably even if they are not at a disadvantage due to their disability in the particular situation.

Example:

An employer has a policy of shortlisting and interviewing all disabled applicants who meet the minimum requirements for their jobs. The law would allow this. It would not be unlawful discrimination against a non-disabled applicant who also meets the minimum requirements but is not shortlisted.

LINKS

 

Subchapters

 

Library

 

Contact

 

Quiz

 

 

Developed by the Academy of European Law (ERA)