Discrimination in Job Advertisement
European Court of Justice 10 July 2008, JAR 2008/207
Direct Discrimination
As appears from European Directive 2000/43
("the Directive"), direct discrimination is defined as a
situation in which one person is treated less favorably than
another is, has been or would be treated in a comparable situation
on grounds of the person's racial or ethnic origin. This
Directive applies both in the government sector and in the private
sector to all persons with regard to, among other things, the
conditions for access to paid employment. In a case that has caused
quite a stir in Belgium, the Belgian court was in need of an
explanation of the concept of "direct discrimination",
and applied for advice to the European Court of Justice in
Luxembourg (the "European Court").
The Facts
in the Judgment
I will begin by describing the facts in the judgment. After
posting the above-mentioned vacancy, the director made the
following statements in public, among other things: "We must
meet the customers' requirements. This isn't my problem. I
didn't create this problem in Belgium." The Belgian Center
for Equal Opportunities and Combating Racism ("the
Centre") requested the President of the
Arbeidsrechtbank (Labor Court) in Brussels to determine
that this was a discriminatory recruitment policy. The Labor Court
rejected the claim because it had not been demonstrated that a
person had applied for a job and had not been employed as a result
of his ethnic origin. The Center then appealed to the
Arbeidshof (Labor Court of Appeal), which referred a
number of preliminary questions about the interpretation of the
concept of "direct discrimination" to the European Court.
These are questions that must have been answered in the proceedings
before the case can be tried in proceedings on the
merits.
The European Court of Justice on Direct
Discrimination
The European Court considered that the purpose of the Directive
is to foster conditions for a socially inclusive labor market. This
entails that even if there is no identifiable complainant, as in
the present case, there may still be direct discrimination in the
recruitment of persons. After all, public statements not directed
at any specific applicant may nevertheless dissuade certain persons
from submitting their candidature because or their racial or ethnic
origin, and such statements therefore hinder their access to the
labor market. In principle, such statements constitute a
presumption of direct discrimination. It is then up to the employer
to refute this presumption by proving that it has not breached the
principle of equal treatment. Finally, the European Court stressed
that according to the Directive, Member States of the European
Union are obliged to take appropriate sanctions in the event of
discrimination in recruitment procedures. These sanctions must be
effective, proportionate and dissuasive. The European Court
suggested in this context that the court determining the
discrimination could include this finding with an adequate level of
publicity, that the employer could be ordered to cease its
discriminatory practice, or that damages could be awarded to the
body that has brought the proceedings.
Tips
- It is clear from this judgment that public statements, even
if they are not directed at a specific person, may lead to a
recruiting policy that is directly discriminatory in the sense
of the Directive. Employers should therefore be attentive when
drafting advertisements and/or making statements in public
about their recruiting policies.
- In the event that statements that can be qualified as
directly discriminatory have already been made by an employer,
this employer would do wise to limit the damage by proving that
its actual practice is different from what could be presumed on
the basis of these statements.
- Employers should realize that in the event of direct
discrimination by the employer, a court may decide to impose
sanctions that may negatively affect the reputation of the
employer and/or result in financial losses.