Keywords

1 Introductory Remarks

Whatever affects one directly, affects all indirectly.Footnote 1

Historical background shows us that for decades and centuries people were, euphemistically said, treated unequally due to their race. These centuries that were “defined” by colonialism and slavery, regarded race as the ground base for which a person is to be considered more or less worthy.Footnote 2 Even though centuries of “maltreatment” of millions due to their race and ethnicity are today considered to be a stain in the history of humanity, it may be argued that certain traces of such background can be seen in the existence of racial and ethnic discrimination today.Footnote 3 In that regard, the definition that shall be used as a starting point when discussing the issue of racial and ethnic discrimination in the European Union is one provided in International Convention on the Elimination of All Forms of Racial Discrimination which stipulates that racial discrimination refers to:

Any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.Footnote 4

This definition is broad and refers to unequal treatment in different spheres of life—still, racial and ethnic discrimination is especially emphasized in the world of work.Footnote 5 Therefore, it is important to emphasize that “the workplace is a key strategic entry point for addressing racial discrimination—through awareness-raising and training, social dialogue, and observing diversity, employers and workers are better able to understand the concepts, identify cases and develop the necessary skills and tools to address racial discrimination”.Footnote 6 In other words, “creating a workplace policy on ethnic diversity is one of the first steps towards publicly demonstrating that the enterprise takes the elimination of racial discrimination and the promotion of equality in the workplace seriously”.Footnote 7 Furthermore, even though the issue of racial and ethnic discrimination is a globally present issue, due to the complexity of the analysis which grows exponentially when it comes to taking into account the historical and other particularities concerning different parts of the world, the focus of the paper shall be on the situation in the European Union (EU).

The special focus in regard to European Union is inspired by the fact that on the one hand “Europe in general and EU Member States in particular have developed some of the broadest and most effective social policies against discrimination in the workplace and have accumulated much experience in addressing the practice”.Footnote 8 On the other hand, however, racial and ethnic discrimination and segregation continue to exist and be widely present. As stated by the European Commission against Racism and Intolerance (ECRI), concerning Europe in general, “discrimination occurs both at the recruitment stage and in the workplace”,Footnote 9 while such issues become even more present and occur in even worse forms in times of crises, such as the COVID-19 pandemic and the long-lasting effects of such events continue to affect the situation in the world of work.

2 Tackling the Issue of Racial and Ethnic Discrimination from the Perspectives of Legal Mechanisms in the European Union

2.1 Legal Framework in the European Union

Even though the legal framework is just the starting point when it comes to combatting discrimination, without the existence of a comprehensive legal framework, the fight against discrimination remains a lost cause. In that regard, it is crucial to emphasize that prohibition of discrimination in all its forms, racial and ethnic discrimination included, is one of the core values that the EU is built upon and this issue is dealt with in the primary and secondary EU law, as well as the case law of the Court of Justice of the European Union (CJEU).Footnote 10 As stated in the Declaration by the High Representative on behalf of the EU on the occasion of the International Day for the Elimination of Racial Discrimination on 21 March 2019: “within the EU, we continue to fight against any pattern or manifestation of racial discrimination and hatred, and to apply all means to respect diversity”.Footnote 11

Taking a step back shows us that the very Treaty on the European Union (TEU)Footnote 12 stipulates the following: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.Footnote 13 What is more, it is stated that the Union “shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child”.Footnote 14

When it comes to Treaty on the Functioning of the European Union (TFEU),Footnote 15 it is stated that “in defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”,Footnote 16 as well as that the EU may take action with the goal of combatting such discrimination.Footnote 17 Also, the principle of non-discrimination based on race is clearly laid out in Charter of Fundamental Rights of the European Union,Footnote 18 whilst notable importance should be dedicated to secondary EC/EU law, especially directives. The key legal instrument in this regard is the Directive 2000/43/EC (Racial Equality Directive)Footnote 19 which, though it tackles the issue of racial discrimination in general, also highlights the issue of (in)equality in employment.Footnote 20 Namely, the Directive clearly prohibits both direct and indirect discrimination, as well as harassment. Furthermore, emphasized that the principle of equality applies to conditions for access to employment, access to all types and all levels of vocational guidance, employment and working conditions, including dismissals and pay, membership of and involvement in an organization of workers or employers, as well as social protection, social advantages and education.Footnote 21 Exception to this rule is made only if there are genuine and determining occupational requirements.Footnote 22 What is more, the Directive also addresses the issues of positive action, minimum requirements, dissemination of information, as well as the burden of proof, social dialogue and dialogue with non-governmental organizations.

Further on, also of great importance is the Directive 2000/78 (Employment Equality Directive),Footnote 23 which is constructed upon the understanding that “employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realizing their potential”.Footnote 24 This directive is a horizontal one in the sense of dealing with employment in general. Moreover, it clearly refers to the Racial Equality Directive with regard to racial discrimination, which speaks of the fact that prohibition of racial discrimination is recognized when speaking of employment in the EU in general.

2.2 Case Law of the Court of Justice of the European Union

In addition to the legal framework as such, it is important when discussing the issue, to take into account the case law of the CJEU,Footnote 25 whilst also bearing in mind that:

The segmentation of workplace anti-discrimination law into three different sets of directives – one concerning race and ethnic origin, one concerning religion or belief, disability, age, or sexual orientation, and one concerning gender discrimination – presents an obstacle, as claims brought to the CJEU which span different directives may have to be brought under more than one of them.Footnote 26

Given the very extensive case law of the CJEU, a few cases from the Court's case law shall be explained in more detail. Just by analyzing these cases, one can conclude that the CJEU has a clear stance regarding the importance of dealing with racial and ethnic discrimination.

In that sense, an example of a case that speaks of the Court’s view concerning racial discrimination is the Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV case,Footnote 27 where the issue concerned an employer, a sales and installation company from Belgium, and the public statements of its director which were discriminatory in terms of employment of foreigners. It was left up to the CJEU to decide whether direct discrimination existed in the case at hand since there was no specific victim of such discriminatory policy. In this regard, the Court took the stance that:

The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination in respect of recruitment within the meaning of Directive 2000/43. The existence of such direct discrimination is not dependent on the identification of a complainant who claims to have been the victim.Footnote 28

What is more, the Court also addressed the issue of burden of proof by taking the stance that it was up to the employer to prove that there was no discrimination. Therefore, the statements of the director referring to the fact that he refuses to hire people of certain ethnic and racial background were considered sufficient to constitute the presumption that there was discrimination.

Another important case in this regard is the CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia case.Footnote 29 Even though this case does not deal with the sphere of employment in particular, its importance in terms of protecting equality and even, to some extent, applying an intersectional approach, is noteworthy. Namely, this case dealt with the issue of electricity meters which were placed in higher locations in the areas where the dominant population was Roma in comparison to other areas in Bulgaria. The inhabitants of these areas felt stigmatized, “like criminals”, and claimed they were deprived of the possibility to monitor and check electricity. Such practice was deemed to be discriminatory and resulting in stigmatization by the Court. The stance of the Court in this instance and in relation to the Racial Equality Directive was that:

“[…] the principle of equal treatment to which that directive refers applies not to a particular category of person but by reference to the grounds mentioned in Article 1 thereof, so that that principle is intended to benefit also persons who, although not themselves a member of the race or ethnic group concerned, nevertheless suffer less favourable treatment or a particular disadvantage on one of those grounds”.Footnote 30 On the basis of this, it can be concluded that the CJEU has, by addressing this case as an example of both direct and indirect discrimination, recognized, in an implicit manner, the intersection of race and ethnic origin with socio-economic status.

3 The Issue of Racial and Ethnic Discrimination in the European Union as the Existing Issue “Beyond the Law”

3.1 Introductory Remarks

Taking every step forward in terms of achieving equality, in employment and in general, also encompasses addressing the roots, consequences and other issues relating to discrimination i.e., issues “beyond the law”.Footnote 31 In other words, regarding racial and ethnic discrimination, “although indispensable, the legal prohibition of racial discrimination alone may fail to eliminate this practice, and it is recognized now that a mix of policies and instruments is essential to achieve equality in the world of work”.Footnote 32

In this sense, special attention is going to be dedicated to the causes, consequences and statistics of racial and ethnic discrimination in the world of work, the issue of intersectional discrimination concerning racial discrimination and finally the impact that the COVID-19 pandemic has had on racial discrimination, all of the mentioned analyzed within the context of the EU. Only the analysis of the three mentioned aspects, i.e., issues, provides for a comprehensive picture of a situation when a person is discriminated based on their race and ethnicity (and potentially other grounds) during, but also after the COVID-19 pandemic in the EU.

3.2 The Causes, Consequences and Statistics—Racial and Ethnic Discrimination in Practice

As it is the case with any personal ground as a (potential) basis for discrimination, stereotypes and prejudices play a “crucial role” in affecting a person’s situation in the world of work when it comes to race and ethnicity.Footnote 33 Namely, “discrimination and intolerance are often based on or justified by prejudice and stereotyping of people and social groups, consciously or unconsciously; they are an expression of prejudice in practice”.Footnote 34 The situation is even more complex when speaking of racial discrimination and taking into account the historical context that contributes to its complexity. In this regard, one should have in mind that, not so long ago, in 1997, the results of the survey conducted in the EU were quite worrisome:

with nearly 33% of those interviewed openly describing themselves as ‘quite racist’ or ‘very racist’. Dissatisfaction with their life circumstances, fear of unemployment, insecurity about the future and low confidence in the way public authorities and the political establishment worked in their country were the main characteristics of those who put themselves at the top of the racist scale and who were more likely to agree with negative stereotypes on immigrants and minorities.Footnote 35

Despite the fact that the situation has improved over time, even today, jobseekers and employees often face multiple, complex, and structural inequalities in the world of work.Footnote 36 Moreover, it should also be taken into account that the issue of race and ethnicity in the EU is also often related to the migrant status and that migrants are likely to be discriminated against, especially in the world of work. Proof of such claim can be found in the stance taken by International Labour Organization (ILO) when referring to the fact that “global migration combined with the redefinition of national boundaries and growing economic problems and inequalities have worsened xenophobia and racial and religious discrimination”.Footnote 37 In light of the aforementioned, it is especially important to reiterate the fact that “across Europe, the population is becoming increasingly ethnically diverse with migration from both within and outside the European Union transforming the ethnic composition of workplaces. The workplace, historically the key site for identity formation and consciousness is becoming recast as the primary site for interaction between people of different ethnicities, national origins and nationalities”.Footnote 38

When it comes to statistics, according to the survey conducted in the EU in 2019, “over half of Europeans believe racial or ethnic discrimination to be widespread in their countries, but with considerable variations between Member States”.Footnote 39 Further on, based on research conducted by the Eurobarometar, ethnic background and skin color are considered to be amongst the most common grounds for discrimination, with over 50% of respondents arguing that such discrimination is widespread in the EU.Footnote 40 In this regard, the same research confirmed that fact that the labor market is not a “level playing field”:

One in four (25 %) respondents felt racially discriminated against when looking for work in the five years before the survey. The highest levels were observed in Austria (46 %), Luxembourg (47 %) and Italy (46 %).Footnote 41

Furthermore, when dealing with racial and ethnic discrimination, one should take into account the existence of professional segregation in the EU. Namely, “the share of ethnic and racial minority workers in skilled-managerial, professional and technical occupations is lower than that of workers in the majority or dominant ethnic group in a majority of countries with data”.Footnote 42 In that sense, research conducted by the European Union Agency for Fundamental Rights refers to the fact that the findings “on labor market participation are particularly striking, demonstrating that people of African descent are often engaged in low quality employment that does not correspond to their level of education”.Footnote 43

Even though the above data paint a picture in relation to ethnic and racial discrimination in the EU, it is also important to have in mind that “over 1 in 2 Europeans believe that discrimination because of one’s ethnic origin is widespread. Yet no European-wide data is available on exactly how many persons experience unequal treatment because of their racial or ethnic origin”.Footnote 44

The EU is, undoubtedly, putting efforts aimed to address racial and ethnic discrimination. However, the data detail need to make a more concerted effort and go one step further each day with the goal to overcome racial and ethnic discrimination.Footnote 45

3.3 Racial Discrimination in Light of Intersectional Discrimination in the EU

In order to understand and deal with discrimination in a comprehensive manner, it is important to, besides the analysis of discrimination based on a single ground, also implement the intersectional approach. Namely, it was Kimberlé Crenshaw who first pointed out that the situation of Afro-American women, in terms of obstacles and challenges they are faced with, can be fully understood only by applying the intersectional approach and understanding the concept of intersectional discrimination. In this regard, only the analysis that takes into account both gender and race (two or more grounds) as grounds that influence a person’s situation without the possibility of distinguishing between them, i.e., the existence of intersectional discrimination, in some cases can provide a comprehensive insight into someone's situation.Footnote 46 When Crenshaw addresses the situation of Afro-American women, she states:

Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.Footnote 47

What is more, she emphasizes that the single-axis discourses, which takes into account only one ground of discrimination are not comprehensive as such “discourses are often inadequate even to the discrete tasks of articulating the full dimensions of racism and sexism.Footnote 48 Therefore, when dealing with the issue of race and ethnicity, it is also important to have in mind that victims of racial and ethnic discrimination are often discriminated based on other grounds as well, making their situation particularly difficult. Therefore, it is important to reflect on a person's situation by looking at different and multiple identities that a person has, but also the relations of power and subordination in society.Footnote 49 In other words, it is important to have in mind that “race, gender, class, disability, etc. are not just personal identity characteristics but social hierarchies that shape a person’s power status and capabilities”.Footnote 50

In relation to this, it is crucial not to forget that a workplace and generally the sphere of employment is an area where intersectional discrimination is very present.Footnote 51 Therefore, it can be said that it is often the case that as a “consequence of gender and class oppression, that are then compounded by the racially discriminatory employment and housing practices” persons of certain races are deprived of their labor rights and even the possibility to find employment.Footnote 52 For example, when analyzing the issue of discrimination with the focus on race and gender in the EU, it is important to have in mind that “if an ethnic minority woman experiences discrimination, her suffering could result from sex discrimination, race discrimination or other forms of discrimination – but most often, it arises due to their confluence”.Footnote 53 Taking into account the aforementioned, “on one hand the gender segregation, on the hand the racial segregation and all other reflections of racial and gender inequality in employment clearly speak of the difficult situation that a woman that is also discriminated based on her race is faced with”.Footnote 54

In light of the mentioned, Sandra Fredman states that:

Intersectionality is perhaps most marked within Roma, Sinti and Traveller communities, where race, gender, age, disability and religious discrimination all interact to create multiple synergies of disadvantage. For many members of these communities, the discrimination manifested along the four axes highlighted here is particularly acute.Footnote 55

It can be concluded that there is still a long road ahead to recognizing, addressing and overcoming intersectional discrimination, globally and in the EU. In this sense, it is of utmost importance to have in mind that further efforts in this regard are necessary also when speaking about fighting against racial and ethnic discrimination.

3.4 The Influence of the COVID-19 Pandemic on Racial Discrimination in the World of Work

The COVID-19 pandemic, as any other crisis, has greatly affected the world of work, globally and in the EU.Footnote 56 Specifically, “across the globe, indigenous peoples as well as people of African descent, Roma and other ethnic minorities experience stigma, racism and racial discrimination […]This has been evidenced and exacerbated during the COVID-19 pandemic, in which some of the starkest inequities have emerged among populations experiencing racial discrimination”.Footnote 57

According to ILO, the pandemic was a major economic and labor market shock, which has and shall have long term consequences regarding both the unemployment and the quality of work.Footnote 58 The stance of the European Commission regarding the COVID-19 pandemic can be summarized through the following statement:

The coronavirus crisis constitutes a challenge for the European economy and the livelihoods of citizens. During this health crisis, it is vital that we not only protect the critical sectors of our economy, but also our assets, technology and infrastructure, and more importantly, we need to protect jobs and workers.Footnote 59

Many persons in the EU have lost their jobs, their income and generally any possibilities in the labor market.Footnote 60 Workers such as health and care workers, grocery and delivery personnel, bus and transport drivers, and domestic workers were frontline workers during the pandemic.Footnote 61 Further on, lockdowns and other measures have had a disproportionate impact on workers in a precarious employment situation, self-employed and workers in the informal economy.Footnote 62 Finally, it can be stated that those belonging to vulnerable groups, including those belonging to such groups based on race and ethnicity, have been put in an especially difficult situation, during and after the pandemic.Footnote 63

The pandemic exacerbated existing inequalities, especially affecting those belonging to vulnerable groups with precarious and low-income jobs which in the EU, is often also related to the issue of race and ethnicity. Xenophobia, stigmatization and marginalization have become even more present.Footnote 64 In other words, the structural inequalities that are influenced by race and ethnicity have become even more evident which reflected on the functioning of the labor market and world of work.

A vivid example of the mentioned can be seen from the following:

The Federal Antidiscrimination Agency in Germany received complaints about a doctor refusing to treat a patient of Chinese origin who had no COVID-19 symptoms but had recently been to China; a Chinese student who was prevented from renting a flat on the grounds that the owner 'did not want to have Coronavirus’; and the owner of a grocery store denying Chinese tourists access to his shop. In Poland, the staff of a wedding dress shop refused to serve two Asian clients. The Equality Ombudsman of Sweden reported on a complaint against a restaurant discriminating against persons of Chinese origin!Footnote 65

Namely, “the cases underline how this pandemic is exacerbating and shining a light on existing structural racism and inequalities in the labor market, in housing, or in institutions such as the police, meaning that some groups are being hit harder”.Footnote 66 Thus it can be concluded, that the COVID-19 pandemic exacerbated the need for explicit policies to tackle racial and ethnic discrimination both with the greater intensity but at the same time in the long-term.

4 Concluding Remarks

Racial and ethnic discrimination continues to exist despite the consistent efforts to overcome it, and the COVID-19 pandemic has once again shown not only the existence but the scope of such discrimination. Namely, the existence of racism remains a reality all over the world, and the EU is no exception to this “rule”. The basis for unequal treatment due to race can be found in the stereotypes and prejudices which are deeply rooted in the decades and centuries behind us and that stand in the way of achieving equality. The consequences of such discrimination are reflected on a daily basis across every sphere of life.

In light of the mentioned, it can be stated that the sphere in which such discrimination is especially present is the sphere of employment—both jobseekers and employees often face racial and ethnic discrimination. This is true in any part of the world, including the EU. In this regard, it must be stated that both primary and secondary EU law recognize of importance of prohibition of (racial and ethnic) discrimination, while the case law of the CJEU further emphasizes the efforts of the EU to put an end to the existence of such discrimination. However, as with every legal issue, especially legal issues regarding discrimination, this also has an aspect that is “beyond the law” and the legal framework and case law as such are not sufficient in this instance.

Namely, the data from the EU testifies the fact that race and ethnic background are amongst the most prevalent grounds for discrimination, and conducted research speaks of the many respondents that were discriminated against in the labor market and, more generally, world of work. Racial segregation being the defining factor regarding the type of employment, is also very present in the EU. Furthermore, the issue becomes even more complex when we consider the existence of intersectional discrimination, i.e., discrimination based on more grounds simultaneously, while the synergic nature of such discrimination that has an extremely negative effect on a person’s situation.

Finally, the effects of the COVID-19 pandemic in the world of work must be reflected upon from the perspective of all of above mentioned aspects. In that sense, each crisis, including the one caused by the pandemic, further highlights inequalities in the world of work. Therefore, it can be concluded that the crisis caused by the pandemic has further emphasized the existence of racial and ethnic discrimination in the EU and the structural issues that need to be dealt with in this regard. Certainly, dealing with the effect that the pandemic has had on particular legal issues was crucial during the peak of it, but it is also of great importance when discussing the post-pandemic landscape and the long-term consequences that have not ceased to exist.

To conclude, the COVID-19 pandemic has created obstacles with far-reaching implications for the ability of all individuals to survive, thrive, and participate in an economy that gives equal chance to each and every person. However, this should not be considered a discouragement but rather a reason to put even more efforts aimed at achieving equality.