West Law Report

Race bias finding without identifiable victim

From The TimesJuly 16, 2008

Race bias finding without identifiable victim
Court of Justice of the European Communities
Published July 16, 2008
Centrum voor gelijkheid van kansen en voor racismbestrijding v Firma Feryn
NV Case C-54/07
Before C. W. A. Timmermans, President of Chamber and Judges L. Bay Larsen, K. Schiemann, J. Makarczyk and J.-C. Bonichot Advocate General M. Poiares Maduro
(Opinion March 12, 2008)
Judgment July 10, 2008

Public statements by an employer that it would not recruit employees of a certain racial or ethnic origin constituted direct discrimination in respect of recruitment, within the Community race discrimination directive, even though there was no identifiable complainant contending that he had been the victim of discrimination.

The Second Chamber of the Court of Justice of the European Communities so held, inter alia, on a reference for a preliminary ruling under article 234 EC by the Arbeidshof te Brussel (Brussels Labour Court), Belgium.

In statements made in newspapers and on television, a director of the defendant company, which made and installed up-and-over and sectional doors, stated that fitters that the company wished to recruit could not be immigrants as customers would be reluctant to give them access to their premises.

The claimant, the Centre for Equal Opportunities and Combating Racism, applied for a declaration that the defendant was infringing the Belgian law transposing Council Directive 2000/43/EC of June 29, 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L180/22), and an order requiring it to end its discriminatory recruitment policy.

The court dismissed the application on the ground that there was no proof or presumption that any person had applied for a job and not been employed as a result of his ethnic origin. On appeal issues were referred to the European Court.

In its judgment the Second Chamber held: Offering observations, the United Kingdom and Ireland argued that it was not possible for there to be direct discrimination where there had simply been public statements by an employer on its recruitment policy, and there was no identifiable complainant contending that he had been the victim of discrimination.

It was true that article 2(2)(a) of Directive 2000/43 defined direct discrimination as a situation where “one person is treated less favourably than another”.

However, the aim of the Directive, as stated in recital 8 of its preamble, was to foster conditions for a socially inclusive labour market. For that purpose, article 3(1)(a) stated that the Directive covered, inter alia, selection criteria and recruitment conditions.

That objective would be hard to achieve if the scope of the Directive were to be limited only to cases where an unsuccessful candidate for a post brought proceedings.

The fact that an employer had declared publicly that it would not recruit employees of a certain ethnic or racial origin was clearly likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, and hence constituted direct discrimination.

The existence of such direct discrimination was not dependent on the identification of a complainant who claimed to have been the victim.

With regard to article 8, public statements by an employer that, under its recruitment policy, it would not recruit any employees of a certain ethnic or racial origin, could constitute facts such as to give rise to a presumption of a discriminatory recruitment policy.

The employer could thereafter adduce evidence that it had not breached the principle of equal treatment, which it could do, inter alia, by showing that the actual recruitment practice of the undertaking did not correspond to those statements.

The sanctions provided for in article 15 could include a finding of discrimination by the court or the administrative authority, in conjunction with an adequate level of publicity, the cost of which was to be borne by the defendant.

They could also take the form of a prohibitory injunction, in accordance with the rules of national law, ordering the employer to cease the discriminatory practice, and, where appropriate, a fine.

They could, moreover, take the form of the award of damages to the body bringing the proceedings.

For those and further reasons the Court ruled:

1 The fact that an employer stated publicly that it would not recruit employees of a certain ethnic or racial origin constituted direct discrimination in respect of recruitment within the meaning of article 2(2)(a) of Directive 2000/43, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.

2 Public statements by which an employer let it be known that under its recruitment policy it would not recruit any employees of a certain ethnic or racial origin were sufficient for a presumption of the existence of a recruitment policy which was directly discriminatory within the meaning of article 8(1) of Directive 2000/43.

It was then for that employer to prove that there was no breach of the principle of equal treatment. It could do so by showing that the undertaking’s actual recruitment practice did not correspond to those statements.

It was for the national court to verify that the facts alleged were established and to assess the sufficiency of the evidence submitted in support of the employer’s contentions that it had not breached the principle of equal treatment.

3 Article 15 of Directive 2000/43 required that rules on sanctions applicable to breaches of national provisions adopted in order to transpose the Directive had to be effective, proportionate and dissuasive, even where there was no identifiable victim.

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