Abstract
Repercussions of global crises can often be seen in the fact that many legal issues arise or become even more complex, while this is also true when speaking about the crisis caused by the COVID-19 pandemic. Certainly, the analysis of the effects of such crisis is of great importance during the peak of the crisis, but also afterwards, in the context shaped by the (previous) crisis. In light of the mentioned, the widely present issue of discrimination in the world of work has become even more present during the crisis caused by the COVID-19, and discrimination based on race and ethnicity is no exception in this regard. From patients refusing to be treated by doctors because of their race to increased poverty rates, one may infer that impacts of the mentioned crisis have brought injustice and inequality based on race and ethnic background to the forefront of public eye all over the world, including the European Union. In that sense, the paper deals with the legal framework of importance, but also the existence and implications of racial and ethnic discrimination in practice, especially during and after the pandemic, i.e., analyzes this issue as the issue of “law and beyond”.
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Keywords
- Racial and ethnic discrimination
- Intersectional discrimination
- Employment
- European Union
- COVID-19 pandemic
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.
Notes
- 1.
Martin Luther King, Letter from a Birmingham Jail, 16 April 1963.
- 2.
For more about the intricate relation between race and slavery, both in the past, but also today see Weissbrodt (2002). Also in this sense, taking a glance at history shows us that over centuries “scientific and philosophical inquiry into species and racial diversity […] produced theories of a hierarchical ordering of the different species and races. Those theories served as the ideological and philosophical underpinning, not only for the development of theories of racial, ethnic, social and religious discrimination, but also as an intellectual framework to justify operations that were forms of exploitation or domination, such as the slave trade and colonization”. The Office of the United Nations High Commissioner for Human Rights (OHCHR) in cooperation with the United Nations Educational, Scientific and Cultural Organization (UNESCO) (2003).
- 3.
Even today, in accordance with the statistics of the International Labour Organization, there are over 50 million people worldwide who are the victims of modern slavery. International Labour Organization, “50 million people worldwide in modern slavery”, https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_855019/lang--en/index.htm. For a closer insight into personal stories of the ones trapped in modern slavery see Bales (2016).
- 4.
Art. 1 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination, UN General Assembly, International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965, United Nations, Treaty Series, vol. 660.
- 5.
The testimony of globally present efforts aimed at combating racial discrimination is the statement by Chidi King, Chief of the International Labour Organization’s Gender, Equality, Diversity and Inclusion Branch: “It is crucial that we create a comprehensive knowledge base on racial equality barriers and measures, give those affected a voice, and promote social dialogue for bringing about new and innovative actions to combat racial discrimination in the world of work”. International Labour Organization, ILO calls for papers to help stop racial discrimination at work, https://www.ilo.org/global/topics/equality-and-discrimination/WCMS_839985/lang--en/index.htm. Further on, it is important to have in mind that “people who are denied equal opportunities because of their race often suffer discrimination in other spheres as well”. International Labour Orgnization, Racial Discrimination in the World of Work, Programme for the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Office, Geneva, 5.
- 6.
International Labour Organization (2014), 5.
- 7.
Ibid., 20.
- 8.
International Labour Organization, Discrimination at Work in Europe, https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_decl_fs_90_en.pdf.
- 9.
European Commission against Racism and Intolerance (ECRI), Combating racism and racial discrimination in employment: ECRI General Policy Recommendation No. 14: Key Topics, https://rm.coe.int/ecri-general-policy-recommendation-no-14-key-topics-combating-racism-a/16808b763d.
- 10.
Also, it is important to mention the fact that the EU, has, as its goal, universal ratification and implementation of International Convention on the Elimination of All Forms of Racial Discrimination by all its member states.
- 11.
Council of the EU, Declaration by the High Representative on behalf of the EU on the occasion of the International Day for the Elimination of Racial Discrimination 21 March 2019, Press release, https://www.consilium.europa.eu/en/press/press-releases/2019/03/21/declaration-by-the-high-representative-on-behalf-of-the-eu-on-the-occasion-of-the-international-day-for-the-elimination-of-racial-discrimination-21-march-2019/.
- 12.
European Union, Consolidated version of the Treaty on European Union, 26.10.2012, Official Journal of the European Union, C 326/13 – 326/45.
- 13.
Article 2 of the TEU.
- 14.
Article 3(3) subparagraph 1 of the TEU.
- 15.
European Union, Consolidated version of the Treaty on the Functioning of the European Union, 26.10. 2012, Official Journal of the European Union, L 326/47-326/390.
- 16.
Article 10 of the TFEU.
- 17.
Article 19 of the TFEU.
- 18.
Article 21 of the Charter of Fundamental Rights of the European Union (European Union, Charter of Fundamental Rights of the European Union, 18.12.2000, Official Journal of the European Union, C 364/1 – 364/22).
- 19.
European Union: Council of the European Union, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 19.07.2000, Official Journal of the European Union, L 180/22 – 180/26.
- 20.
As stated in Article 1 of the Directive, “the purpose of this Directive is to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment”.
- 21.
Article 2 of the Racial Equality Directive.
- 22.
Article 4 of the Racial Equality Directive.
- 23.
European Union: Council of the European Union, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, 02.12.2000, Official Journal of the European Union, L 303–303/22.
- 24.
Furthermore, when speaking about equality in employment, one should bear in mind that the Directive 2006/54/EC deals with the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.
- 25.
Also, especially in relation to race, Sandra Fredman is of the opinion that “there is some potential for a capacious approach to race or ethnic origin in EU jurisprudence”, given the fact that the Racial Equality Directive, as well as other legal instruments does not provide for a clear definition of racial and ethnic origin. Fredman (2016), 75.
- 26.
Donegan (2020), 154.
- 27.
Case C-54/07, 10.07.2008, Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, ECLI:EU:C:2008:397.
- 28.
Paragraph 25 of the Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV.
- 29.
Case C-83/14, 16.07.2015, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, ECLI:EU:C:2015:480.
- 30.
Paragraph 56 of the CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia.
- 31.
In that regard, it is necessary to insist to achieving substantive rather than “only” formal equality. For more about the issue of substantive equality see Smith (2016), 99.
- 32.
International Labour Organization, Racial Discrimination in the World of Work, Programme for the Promotion of the ILO Declaration on Fundamental Principles and Rights at Work, op. cit., 6.
- 33.
In that sense, it is important to have in mind that “contemporary forms of discrimination, however, are often subtle and covert, posing problems for social scientific conceptualization and measurement”. Pager and Shepherd (2008), 1.
- 34.
Council of Europe, Discrimination and Intolerance, https://www.coe.int/en/web/compass/discrimination-and-intolerance#:~:text=Discrimination%20and%20intolerance%20are%20often,of%20perpetuated%20forms%20of%20prejudice, accessed 18 November 2022.
- 35.
Eurobarometer Opinion Poll no 47.1 First results presented at the Closing Conference of the European Year Against Racism Luxembourg, 18 & 19 December 1997.
- 36.
Sheppard (2011), 35.
- 37.
International Labour Organization, ILO: Workplace discrimination, a picture of hope and concern, https://www.ilo.org/global/publications/world-of-work-magazine/articles/WCMS_081324/lang--en/index.htm.
- 38.
That is why it is especially important to focus on the situation in this regard, i.e., in the workplace. Jefferys et al. (2013), 4.
- 39.
European Parliament, EU legislation and policies to address racial and ethnic discrimination, https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/690525/EPRS_BRI(2021)690525_EN.pdf. Namely, as stated earlier, many persons in the EU continue to face serious obstacles in relation to employment due to their race. Furthermore, when speaking about intersectional discrimination in relation to race in the EU: “the extent of intersectional disadvantage in the EU is difficult to gauge because of the lack of comprehensive data. While data disaggregated by gender and by age are readily available, there is little systematic collection of data on the other grounds, let alone data reflecting intersectional experiences”. Sandra Fredman, op. cit., 39.
- 40.
European Commission, Special Eurobarametar 493, 6.
- 41.
European Agency for Fundamental Rights, Being Black in the EU Second European Union Minorities and Discrimination Survey, 10.
- 42.
United Nations Department of Economic and Social Affairs Division for Social Policy and Development, Employment Opportunities: Do Race and Ethnicity Matter?, Social Development Brief #3, https://www.un.org/development/desa/socialperspectiveondevelopment/wp-content/uploads/sites/27/2017/07/RWSSPolicyBrief3.pdf.
- 43.
European Agency for Fundamental Rights, Being Black in the EU Second European Union Minorities and Discrimination Survey, op. cit.
- 44.
ENAR, Equality data, https://www.enar-eu.org/about/equality-data/, accessed 10 January 2023.
- 45.
European Commission, EU funding to tackle racism and xenophobia, https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/combatting-discrimination/racism-and-xenophobia/eu-funding-tackle-racism-and-xenophobia_en.
- 46.
“This racialization is just one of the ways in which racial hierarchy ‘made up’ gender, and not just race, and structured gendered hierarchies, and not just racial ones. The gendered and racialized ordering of racial patriarchy is precisely why women are (and historically have been) differentially intelligible as women”. Carbado and Harris (2019), 2230.
- 47.
Crenshaw (1989), 140. In order to further emphasize the obstacles that victims of intersectional discrimination are faced with compares their situation with standing in the basement where other people stand on their shoulders, and the ones who can see above the ceiling, in fact understand that such a ceiling is actually the floor for the ones that are not victims of discrimination.
- 48.
Crenshaw (1991), 1252.
- 49.
Namely, “since symbolic violence and material inequalities are rooted in relationships that are defined by race, class, sexuality, and gender, the project of deconstructing the normative assumptions of these categories contributes to the possibility of positive social change”. McCall (2005), 1771. However, it is also important not to forget that the issues of intersectional discrimination are on one hand the issues of identity, while they are also the issues of societal power structures. Fehr (2012), 19.
- 50.
Dimitrina Petrova (2016), 6. For more about “hierarchies of power based on race, immigration, religion, class, and citizenship among feminist activists, but not reducible to them” see Lé pinard (2020), 80.
- 51.
Xenidis (2018), 41.
- 52.
Kimberlé Crenshaw, op. cit., 1296.
- 53.
Cara Donegan, op. cit., 148–149. In that sense, it is commendable that through different EU reports special attention was dedicated to the issue of intersectional discrimination.
- 54.
In that sense, it is important to notice that the issue of race, in relation to religion as well as gender has caused greater attention of the EU in the last couple of years, and especially in relation to Muslim women and wearing headscarves. Namely, it is stated that “ignoring the intersections of religion, gender and race and how they shape particular situations could thus result in the invisibility of the specific prejudice experienced by Muslim women”. Raphaële Xenidis, op. cit., 2.
- 55.
Fredman (2016), 42.
- 56.
The advent of COVID-19 brought the world to a sudden halt, and the consequences for economies across the globe turned out to be far-reaching. The European Union has entered the deepest recession since World War II and deepening of the impact of COVID-19 on the economy and the labor market. European Union, How Covid-19 is reshaping the World, https://www.eeas.europa.eu/eeas/how-covid-19-reshaping-world_en. In light of the mentioned, it is important to look at a person’s situation in a comprehensive manner, so not to forget that any issue that is analyzed in the period of the pandemic must be regarded in the wider context. Such context refers to the fact that persons were not equal even in terms of the right to health protection. Highly infectious diseases, such as COVID-19 often increase pressure on limited health care resources and if a society that often favors citizens of a country, non-citizens and people of color face a higher risk of infection and mortality from COVID-19. The risk of infection and death from COVID-19 is even higher for undocumented immigrants who are likely to avoid medical attention as they face an additional risk of detention and deportation (Devakumar et al. 2020, 1194).
- 57.
World Health Organization, Tackling structural racism and ethnicity-based discrimination in health, https://www.who.int/activities/tackling-structural-racism-and-ethnicity-based-discrimination-in-health.
- 58.
International Labor Organization (2021), 5.
- 59.
European Commission, Jobs and economy during the coronavirus pandemic, https://ec.europa.eu/info/live-work-travel-eu/coronavirus-response/jobs-and-economy-during-coronavirus-pandemic_en.
- 60.
. In this regard, it is important to take into account that, according to research conducted by the European Foundation for the Improvement of Living and Working Conditions: “10% of respondents left the workforce and 8% became unemployed during the COVID-19 crisis. Countries with the highest proportions of respondents who lost their job during the pandemic were Spain and Greece (both 18%) and Hungary and Romania (both 14%). Vulnerable groups as young women and self-employed respondents under the age of 35 were most likely to become unemployed (11% women – compared to 9% of young men). According to the latest Eurostat quarterly data, in the first quarter of 2020, 12.1% of all people of working age (15–64) in employment had a temporary contract in the EU. These contracts were more common among young people aged 15–24 (45.6%) and less common among those aged 55 or over (5.1%)” (Eurofound 2020, 10).
- 61.
Workers in jobs that could not be performed from home and required physical proximity to other people have paid a double price during the COVID‑19 crisis in terms of being subjected to a higher risk of both income loss, when their hours were cut or their jobs terminated, and infection when they continued working. These workers were disproportionately young, low educated, migrants, ethnic minorities and employed in low-paid occupations.
- 62.
Racial discrimination in the context of the COVID-19 crisis, https://www.ohchr.org/sites/default/files/Documents/Issues/Racism/COVID19_and_Racial_Discrimination.pdf.
- 63.
European Union Agency for Fundamental Rights (2010), 45.
- 64.
International Labour Organization (2020).
- 65.
European Union Agency for Fundamental Rights (2020), 34.
- 66.
ENAR, Evidence of the impact of COVID-19 on racialised communities exposes need to address persistant ineqaulities and racism, https://www.enar-eu.org/evidence-of-the-impact-of-covid-19-on-racialised-communities-exposes-need-to/.
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Kuzminac, M., Midžović, M. (2023). Racial Discrimination and COVID-19 in the European Union. In: Gstrein, O.J., Fröhlich, M., van den Berg, C., Giegerich, T. (eds) Modernising European Legal Education (MELE) . MELE 2023. European Union and its Neighbours in a Globalized World, vol 10. Springer, Cham. https://doi.org/10.1007/978-3-031-40801-4_16
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