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Current challenges in the field of equality law

Current challenges in the field of equality law. Dr Sara Benedi Lahuerta s.benedi-lahuerta@soton.ac.uk Equinet Conference Strengthening the effectiveness of European Equal Treatment Legislation Brussels, 16 June 2016. Setting the scene…. Shortcomings of EU Equality Law (I).

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Current challenges in the field of equality law

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  1. Current challenges in the field of equality law Dr Sara Benedi Lahuerta s.benedi-lahuerta@soton.ac.uk Equinet Conference Strengthening the effectiveness of European Equal Treatment Legislation Brussels, 16 June 2016

  2. Setting the scene…

  3. Shortcomings of EU Equality Law (I) Different levels of protection for different grounds  “Hierarchy” • Are these differences justified?

  4. Shortcomings of EU Equality Law (I) Different levels of protection for different grounds  “Hierarchy” • Are all these differences justified? • 2008 Commission Proposal for a Horizontal Directive could improve this

  5. Shortcomings of EU Equality Law (II) Uneven enforcement mechanisms for different grounds • Why are equality bodies only required for sex & race discrim.? • If Horizontal Directive is adopted: Mismatch between objectives and enforcement tools • EU equality law objectives: ‘putting into effect’ equal treatment Individual & remedial action Underreporting

  6. Obstacles for effective implementation (I) • Confusion over concepts of direct and indirect discrimination • Examples: • UK: ‘reason why’ required for indirect discrimination (Essop) • France: hypothetical comparators not allowed • Issues concerning the application of the burden of proof test • Examples: • Some MS requiring almost conclusive evidence (UK, Ireland, Germany, Spain) • Not applied in victimisation claims (Denmark)

  7. Obstacles for effective implementation (II) • Lack of awareness about legislation among: • Vulnerable groups • Some legal professionals • Lack of awareness about: • Equality bodies • Other support organisations • Duties of equality bodies are not clear enough • Ex: What is meant by ‘independent assistance’? • General support or information? • Legal advice? • Representation in legal proceedings?

  8. The role of equality bodies (I) The potential: • Raising awareness • Addressing underreporting • High accessibility • Building confidence with vulnerable groups • Comprehensive & independent advice provision • Relieving victims’ burden to report: • Bringing actions in their own name • Bringing actions in the public interest (no identifiable victim) • Conducting investigations & issuing recommendations • Addressing systemic discrimination • Informal resolution, negotiation

  9. The role of equality bodies (II) The challenges: • Limited resources  budget cuts • Ensuring organic & financial independence in practice • Not enough visibility & engagement with other key stakeholders • Limited accessibility for victims • Limited powers • Lack of competence to initiate legal proceedings • Lack of investigatory powers • Lack of legal advice

  10. Concluding remarks Improvements can be introduced at least at 3 levels: • EU substantive legislation • Removing inconsistencies • EU enforcement legislation • Wider standing rules • Requirement to set up equality bodies for all protected grounds • Clarification of duties of equality bodies  minimum standards • Implementation at national level • Continuing monitoring implementation/interpretation • Best practices • The role of Equality Bodies as ‘experts’

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