Discrimination in the workplace
Discrimination in the workplace was in focus this past summer at the European Court of Justice. The Court ruled that discrimination by association is unlawful and also held that a racist public statement can constitute direct discrimination.
The landmark verdict in the case of Coleman v Attridge Law and Steve Law, Case C-303/06, was cheered by those who look after family members with a disability. The court in Luxembourg held that the directive on equal treatment in employment and occupation (Council Directive 2000/78/EC) is not limited to disabled people themselves, but also comprises those caring for them.
Sharon Coleman was a legal secretary who had commenced her employment at a firm of London solicitors in January 2001. In 2002, she gave birth to a son who was born with a disability which requires specialized care. That care was primarily provided by her. During the next few years, Ms Coleman perceived that she had been treated less favourably than other employees who were parents of non-disabled children. She alleges that she was subjected to a range of discriminatory experiences which the other parents were not subjected to including, inter alia, receiving criticism for seeking to take parental leave at the end of her maternity leave, not being allowed to return to her existing job on return from maternity leave, being criticized as lazy and being accused of using her child to manipulate her work conditions, and being threatened that she would be sacked for occasional lateness due to childcare problems. She felt that she was specifically targeted for insulting and abusive behavior because she has a disabled child, and was denied the flexible working hours granted to her colleagues.
In March 2005, Ms Coleman accepted voluntary redundancy, which terminated the contract of employment between her and her former employer. Some months later, she lodged a claim with the Employment Tribunal in London, contending that she had been subject to constructive dismissal. The Employment Tribunal referred the case to the Court of Justice, posing the question whether the directive on equal treatment must be interpreted as prohibiting direct discrimination only in respect of an employee himself, or whether it applies equally to an employee who is treated less favourably by reason of the disability of his child, for whom he is the primary provider of the care required by the child’s condition.
The Court of Justice concluded that the prohibition on direct discrimination laid down in the directive is not limited only to people who are disabled and that Community law protects an employee who has suffered discrimination on grounds of his child’s disability. The judges reasoned that the directive was designed to combat all forms of discrimination and applied not to a particular category of person but to the nature of the discrimination.
The case will return to the Employment Tribunal in order to rule on the facts and to determine whether the UK’s existing legislation, the Disability Discrimination Act 1995 should be amended.
In Centrum voor gelijkheid van kansen en voor racismbestrijding v Firma Feryn NV, Case C-54/07, the ECJ found that public statements that reveal that an employer does not recruit persons of certain ethnic origin constitute direct discrimination, even where there is no identifiable complainant. In this case, Feryn, a Belgian company that that sells and installs doors placed a “vacancies” sign on its premises, hoping to recruit fitters to install doors at customers’ houses. At the same time, one of the directors of the company was quoted in a Belgian newspaper as saying that his company would not hire Moroccan immigrants because the customers were reluctant to give such persons access to their homes. Centrum voor gelijkheid van kansen en voor racismbestrijding (The Centre for Equal Opportunities and Opposition to Racism), hereinafter “CGKR”, which is a Belgian body designated to promote equal treatment, applied to the Belgian labour court for a finding that Feryn applied a discriminatory labour policy. The court dismissed the claim holding that the public statements were merely evidence of potential discrimination since there was no proof presented that Feryn had actually rejected a job applicant on the grounds of ethnic origin. CGKR appealed this decision and the appellate court referred the case to the ECJ.
The ECJ found that the objective of Directive 2000/43/EC, is to promote a labour market that is favourable to social inclusion. This would be difficult to achieve if it were limited solely to cases in which an unsuccessful job applicant brought legal proceedings against the employer. Moreover, public statements like the one made in the instant case are likely to discourage some jobseekers from applying. Thus, the court concluded, they constitute direct discrimination.