Making Antidiscrimination Law Effective: Burden of Proof, Remedies and Sanctions in Discrimination Cases

Abstract

The anti-discrimination law regime of the European Union has stimulated the setting-up or improvements of legislation and institutional protection against discrimination at the level of the Member States. While academic debate is mostly focussing on the material part of regulations and if they are sufficient, those affected by discrimination are rather confronted with problems accessing justice. Most cases remain unreported due to a lack of knowledge but also because the investment of bringing a case to court is likely not to be paid back. The EU Anti-Discrimination Directives require Member States to lower the burden of proof and to provide for effective, proportionate and dissuasive sanctions. Legal practise of courts and other bodies in charge of deciding in discrimination cases, like specialised tribunals, labour inspectorates, administrative authorities or equality bodies shows that the sanction regimes are implemented rather hesitantly. Effectiveness of the sanctions regimes in discrimination cases is furthermore impeded by difficulties in accessing justice first hand and in the widespread lack of enforcement mechanisms once a sanction is there. In order to improve the effectiveness of anti-discrimination law, there is a need of focussing on the perspective of the person or group affected, stimulate a change in attitude at the side of those proceeding a case towards more acceptance of the procedural rules and more creativity, when it comes to the choice of sanctions. Strategic litigation has been a valuable tool in moving further on the path to more effectiveness.

Most of the information provided originate from a study on sanctions and remedies in discrimination cases the author has conducted for Equinet, the network of European equality bodies, and another one on access to justice in discrimination cases for the Fundamental Rights Agency of the European Union (FRA) the author has contributed to.