To ensure it achieves its goal of becoming the most competitive,
knowledge-based economy in the world, the EU is putting in place legislation to
ensure that all races are able to contribute equally. Makbool Javaid reports
Globalisation and the introduction of new technologies has meant new
challenges for all countries, and the European Union’s plan is to create the
most competitive knowledge-based economy in the world, capable of sustainable
economic growth with more and better jobs. The transition towards a knowledge
economy has to overcome the problems brought about by demographic and social
change. EU plans to expand in 2004 by extending membership to member states
from Eastern and Central Europe make the need for greater social cohesion
fundamental to economic progress.
The Race Directive, which must be implemented in all member states by July
2003, is a milestone in the construction of the new Europe. The directive
requires all member states to outlaw direct and indirect discrimination, as
well as harassment, victimisation and instructions to discriminate. The
legislation in each state will not only have to cover access to employment and
working conditions, but all kinds of vocational training and membership in
professional organisations. Member states will also need to legislate in the
areas of social protection including health, social advantages, education and
access to goods and services which are available to the public, including
housing.
The implications for businesses operating in the EU are significant when the
key elements of the directive are considered. EU member states have experience
of sex discrimination laws because of the early action taken and the extensive
case law built up by the European Court of Justice. Many could therefore be forgiven
for thinking that the race directive would mirror the legal developments in the
area of sex discrimination. However, this assumption would be a mistake. For
example, indirect discrimination is based on the use of statistical evidence.
In the area of sex discrimination most companies would be able to generate
information if it did not already exist. But in the area of race, employers are
prohibited by law from gathering such information. The prohibition is either
constitutional as in Portugal, or comes about because of data protection
regulation as is the case in Sweden, Italy and France among others.
To avoid this problem, the European Commission drafted the provision dealing
with indirect discrimination in such a way as to allow claims to be brought without
statistical evidence. The lack of any data analysis will be made up by reliance
solely on expert evidence to enable the judicial authority to have the insight
usually provided by statistics. It would not be difficult to envisage
circumstances in which a dress code could impact adversely on certain racial
groups without the need for statistical evidence – for example, a ban on head
scarves would impact on North Africans. However, the floodgates would open if
the courts were to allow successful claims of indirect discrimination based
solely on under-representation coupled with expert evidence. Indeed, it would
appear that HR departments will now need to look proactively at recruitment
strategies and promotion patterns in order to defeat claims based solely on
expert evidence. Ironically, therefore, it may be in the interests of
businesses to collect statistics on racial and ethnic origin to be in a
position to defeat claims brought without statistics. Where permission is not
granted by the appropriate authority under the data protection legislation,
employers will need to consider agreeing schemes with workers so that such
information can be collected on a voluntary basis and only used for specific
purposes, such as defending discrimination claims.
The directive also provides, for the first time, a definition of harassment.
Some member states, Italy and Greece, for example, have not developed laws to
deal with sexual harassment and will have great problems in communicating the
message to companies that racial harassment will require a zero-tolerance
approach to any conduct that creates ‘an intimidating, hostile, degrading,
humiliating or offensive environment’. As a result, only a courageous or
foolish employer would now fail to investigate the complaint thoroughly, even
if the allegation appears at first sight to be an insensitive expression of
national pride.
The directive allows member states to engage in positive action although it
is not clear at the moment how many member states will do so as it is not
compulsory. The Scandinavian countries will probably take measures to create a
level playing field for the minority communities that live and work in the
region, as similar steps have been taken in a bid to close the gender pay gap.
But perhaps the appetite for such measures may not be as great in other parts
of Europe.
The burden of proof in race cases will be shared instead of resting with the
individual victim. It will still be up to the victim to show they were
subjected to discrimination, but once the foundations of a case had been made
out, it will then be for the employer to establish that there was no
discrimination. The idea behind the sharing of the burden is to force employers
to actively engage in proactive measure to eliminate discrimination and also to
make it easier for victims to establish discrimination. The experience of the
sex discrimination laws at the European level and in member states has shown
that rates of success are very low because of the difficulties posed by the
process of bringing a claim.
A major issue for employers will be the fact the directive not only covers
European citizens but also third party nationals, even if not legally resident.
This reinforces the social, economic and political factors which led to action
being taken in the first place. There are many racial groups in Europe whose
members are not citizens and it was recognised that any legislation outlawing
racism would need to include them. Nevertheless, the requirement for work
permits or other permission is still retained.
Member states will have to promote equal treatment through national
organisations. There is no requirement to establish a new organisation, but a
body must be designated the task of promotional work.
In The Netherlands the equal opportunities body is already in existence as
is the Commission for Racial Equality in the UK. These national bodies will be
there not only to promote good race relations but to also act on behalf of the
individual in legal actions against an employer – the rationale being that the
representative body will not be intimidated.
It is inevitable that many of the bodies will want to progressively target
the major employers to bring about cultural change throughout particular
sectors. Those employers who are not proactive in taking action against racial
discrimination are likely to face the stigma of being the first victims. A
finding of discrimination will not only lead to financial penalty, but will
also damage the reputation of the business.
It will take time to determine whether the race directive will begin to
transform Europe in the way the European institutions intend. But the European
institutions are serious, and 1.6bn Euros is being invested annually to promote
diversity. If employers do not respond, the European Commission will force
member states to get tougher or bring in more stringent legislation. The
directive will be reviewed in 2005 and every five years thereafter. The message
to employers is clear: racism in the workplace will no longer be tolerated in the
European Union.
The re-emergence of discrimination
The drive for an inclusive Europe has
been undermined by racial and ethnic discrimination which resurfaced when the
societies in Europe became increasingly diverse as a result of movement within
Europe and migration from the developing world. Most governments responded by
designing programmes to combat racism although the approach has varied from
impressive in the UK to minimal in other member states such as Spain or
Portugal.
However, all that changed as a result of action by the EU
Commission, which feared the rising shadow of right wing extremism casting
itself over parts of the EU – the rise of J”rg Haider in Austria has been
reflected in increased support for right wing parties in other member states,
for instance. From Brussels’ standpoint, the integration of minority
communities is necessary to enhance social cohesion and prevent the
establishment of an under-class in Europe.
Article 13 of the Amsterdam Treaty, gives the Council of Ministers,
acting unanimously, the power to take action to combat discrimination on the
grounds of sex, race or ethnic origin, religion or belief, disability, age or
sexual orientation. The treaty came into force in May 1999 and within a year
there were two significant directives which will radically alter the workplace
in the European Union. The Employment Framework Directive outlaws
discrimination on the grounds of religion or belief, disability, social
orientation or age and will have to be implemented in member states by December
2003. The UK, however, has been given until December 2006 to legislate in
relation to age and disability.
The author
Makbool Javaid is employment partner, head of the Equality and Diversity
Group, for international law firm DLA
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