The European Court of Justice (ECJ) gave its judgement on the case of the Belgian Centre for Equal Opportunities and Opposition to Racism versus the company Feryn on 10 July 2008. The court ruled that an employer could violate discrimination law even where there was no identifiable victim. The case is significant as it establishes that public pronouncements which might deter individuals from applying for jobs can be challenged where they demonstrate a desire not to appoint someone on discriminatory grounds.
Legal context
Employers recruiting workers must not discriminate against individuals on the grounds of their sex, race, religion, sexual orientation, disability or age. The case of the Belgian Centre for Equal Opportunities and Opposition to Racism (Centre pour l’égalité des chances et la lutte contre le racisme/Centruum voor gelijkheid van kansen en voor racismebestrijding) versus the company Feryn NV demonstrates how the law goes further than applying only in instances where an employer discriminates against an individual, for example, by refusing to appoint them on the grounds of their sex or race. Instead, the case makes it clear that discrimination can be cited even in cases where the employer has publicly aired views indicating that they are unwilling to hire someone on discriminatory grounds. In this instance, the European Court of Justice (ECJ) made its ruling on the basis of its interpretation of Council Directive 2000/43/EC on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The directive prohibits direct and indirect discrimination as well as harassment.
Key facts of case
Feryn is a Belgian company specialising in the sale and installation of doors. The director of the company made a statement to the effect that the company, while looking to recruit fitters, could not employ workers of Moroccan origin because its customers were reluctant to allow them into their homes. Acting on the basis of these public statements, the Belgian Centre for Equal Opportunities and Opposition to Racism, which was established under the 2003 law that implements the aforementioned EU directive, began legal proceedings against the company. As a result, the company issued a joint statement with the centre stating that it would no longer discriminate against such workers and that it had employed one migrant worker as a cleaner, although it still did not employ any such workers as fitters.
In the national courts, the discrimination claim was rejected but on appeal, the case was referred to the ECJ to determine whether or not the statement, which was not directed at any particular individual, could amount to racial discrimination under the directive and subsequent Belgian law. The Belgian court also asked whether the fact that an affiliated company only employed indigenous workers or that the company, despite having experienced recruitment difficulties, did not recruit immigrant workers, should be taken into account in assessing if the employer’s policy was discriminatory.
Court ruling
The ECJ ruled that the lack of an identifiable complainant, as seen in this case, did not mean that there was no direct discrimination. The court stated:
The objective of fostering conditions for a socially inclusive labour market would be hard to achieve if the scope of Directive 2000/43/EC were to be limited to only those cases in which an unsuccessful candidate for a post, considering himself to be the victim of direct discrimination, brought legal proceedings against the employer.
In the court’s view, a public declaration by the employer that it would not hire employees of a certain ethnic or racial origin is likely to dissuade such individuals from applying and is therefore a hindrance to their participation in the labour market. Furthermore, the public statements by the employer created a presumption of direct discrimination, shifting the burden of proof to the employer to show that this had not occurred. Finally, in relation to sanctions, the ECJ ruled that these must be effective, proportionate and dissuasive, even where there is no identifiable victim, and could include: a finding of discrimination; an adequate level of publicity; costs borne by the employer; an order to cease discrimination; and an award of damages to the body bringing the proceedings.
Commentary
This case marks a significant development in EU law in relation to discrimination. By accepting that direct discrimination can occur even where there is no identifiable ‘victim’, the ECJ has opened employer practices up to greater scrutiny, while granting important new powers to equality and anti-discrimination bodies, attached to powerful sanctions. The social partners at EU level have not issued any response to the court’s ruling; however, the impact of the ruling also means that the social partners will have greater authority to investigate and challenge such public statements.
Sonia McKay, Working Lives Research Institute