(2008)
DISCRIMINATION
WHAT DOES THIS CASE MEAN FOR ME?
If an employer publicly states "I don't want to hire people of a certain color", this statement will be considered discriminatory. Discrimination means that people are unjustly treated, in this case because of their race. Of course this is forbidden.
Consequently, this statement does not fall under the protection of freedom of speech. Freedom of speech means that normally you cannot be punished based on what you say or write. Yet, this protection ends when these statements are so hurtful that they can be considered discriminatory.
Therefore, all employers in Europe should carefully review all the statements of their company. Furthermore, the company’s policy and practice should remove and refrain from any references that might be considered discriminatory.
FACTS IN A FUN STORY
In 2031 on an evening like another, a father asks his teenage son "What did you learn today at school my dear boy?"
Son: We learned about the EU today.
Father: That's very interesting! Tell me boy, what did you remember?
Son: That it's a very complicated thing but that is plays an important role in all of our lives even though we might not realise it
Father: It is indeed a bit complicated but did you also learn what the EU means for us as European citizens?
Son: What do you mean?
Father: Let me tell you something that you probably didn't know yet. You may not know the EU but it knows you, it knows each and every one of us and does its best to give us all equal opportunities in life. If it wasn't for the EU I might not have got a job today, I might not have had money and you might not have been able to go to school.
Son: What are you saying? What does the EU have to do with your job?
Father: Well thanks to the Feryn ruling.
Son: The what?
Father: As you know my dear child you have people like us who are orange but you also have many pink and blue people. One day long ago there was a man with a big garage company and he said on the TV: I'm looking for mechanics but they can't be orange people.
I was just looking for a job as a mechanic, but since I'm orange I resigned myself because he would never hire me because of my skin color, he said so himself..
Son: But that's not fair! Everyone is equal, it doesn't matter what color you are
Father: That's true now, but it was different then.
Fortunately there was an organisation in Belgium that didn't think that was fair either. So the organisation stepped to the judge and said: "What that man says on TV is not fair to the orange people." But unfortunately the judge said that to look at the case they needed an orange person that had been rejected by the garage company for his orange skin to bring it to them, not the organisation.
The organisation disagreed with the first judge's ruling and therefore appealed the decision to a second more important judge. But this judge had doubts, because apart from the Belgian legislation there was also European legislation that said that you could not refuse someone for a job because he had a specific color, so he asked the question what he should do to the biggest judge (the Union judge).
He asked several questions. In his first and second questions he asked whether the statement of the garage owner could be seen as a direct discrimination of the orange people and if so whether this means that the garage owner indeed uses directly discriminating criteria to select someone for a job (which of course is forbidden).
→ The Union judge replied that the statement is indeed a form of direct discrimination and that it is indeed unlawful criteria that can cause other orange people, like me, not even to try to get the job.
Son: Yes that makes sense if someone says they don't hire orange people then there is no point in applying as an orange person....
Father: Indeed, but there were still important questions. The judge asked if the garage owner's statement could be seen as a presumption of discrimination to which the Union judge said yes. This is important because it ensured that the Belgian organisation no longer had to prove the discrimination, it was now up to the garage owner to prove that it was not a discriminating statement. As a final question, the second judge asked what sanction should be given if it is proven that the garage owner is at fault. The Union judge replied that the organisation may be compensated but also that another sanction provided for in Belgian law can apply.
→ So this judgment gives a clear signal to all employers not to discriminate on the basis of color.
Son: So basically the EU has helped to ensure that all people, no matter what color they are, can now apply for all jobs?
Father: Indeed, and especially that they can't be refused because they are orange. That's how the EU made Europe a little better, with equal opportunities for everyone.
Son: Thanks Dad, now I understand that the EU is also very important.
LEGAL ANALYSIS
The case involved a Belgian seller and installer of automated garage doors (Feryn) whose executive told a local newspaper that because of customer prejudice his company would not recruit or hire persons of Moroccan origin.
CJEU:
→ an employer’s public statements can constitute discrimination in violation of the European Council Directive 2000/43 EC requiring equal treatment irrespective of racial or ethnic origin
→ The court decided there was a violation even though no specific individual had applied, and was denied the job for ethnic reasons. Instead it was an organisation Centrum voor Gelijkheid van Kansen en voor Racismebestrijding had brought the case before the Court.
The court was asked asked to:
1. Interpret the provisions of the European Racial Equality Directive 2000/43 for the purpose of assessing the scope of the concept of direct discrimination in the light of the public statements made by an employer in the course of a recruitment procedure
→the CJEU rules that an employer’s public statement stating that he will not recruit employees of a certain ethnic or racial origin, constitutes a direct discrimination in violation of the European Racial Equality Directive. Such statements are likely to discourage certain candidates from submitting their application and therefore complicate their access to the labor market.
2. State the conditions for revere of the burden of proof rule laid down in the Directive
→ The CJEU rules that this type of public statements, even if it stands alone, rise the presumption that the company maintained a discriminatory recruitment policy in violation of Article 8 (1) of the Directive. It is then up to the employer to prove that there was no breach of the equal treatment principle. He can do so by showing that the company’s actual recruitment practice does not correspond to those statements. It is up to the national courts to verify that the alleged facts are established and to assess if the evidence for no breach submitted by the employer’s is sufficient.
3. Enumerate the penalties that may be considered appropriate in the case.
→ The CJEU indicated that the sanctions to be applied in case of breach must be effective, proportionate and dissuasive, even if there is no direct identifiable victim. The Directive does not prescribe a specific sanction. Therefore it leaves the Member States free to choose between different solutions which can include a ruling of discrimination by the national court or the competent administrative authority in conjunction with an adequate level of publicity, the cost of which is to be borne by the employer; a prohibitive injunction increased, where appropriate, by fines; or the award of damages to the organization filing the claim and leading the proceedings.