Examples of businesses that would be affected
Gyms and clothing stores
Under the ETD, gyms that provide classes exclusively for women or for certain age groups, and stores that only sell children’s clothes, would be discriminating on the grounds of gender and age.
Some gym classes might also be considered to discriminate on the grounds of disability if they are not accessible to persons with a disability (ETD, art 4).
The ETD would limit business owners’ flexibility to tailor specific programmes or offer products to specific categories of customers. This goes against the basic economic principles of creating and developing a service for which there is demand in the market.
Online dating has become extremely popular in recent years. There are now many sites that offer a specialised service e.g. sites that cater for people belonging to a specific age group, religion, or sexual orientation.
Offering the service to specific audiences means excluding other ones. Under the ETD, this would constitute discrimination on the grounds of sexual orientation/age/religion or belief.
This would affect niche businesses and society as a whole. It would deprive people of the possibility of finding partners more easily who share the same age, sexual orientation, or religion.
The EP’s Impact Assessment of the ETD states:
“Current duties on accessibility are less based on ensuring that all service providers (e.g. channels) are accessible (e.g. have subtitles / captioned programming), and are more geared towards ensuring that a limited number of operators meet certain public service broadcasting obligations. The question here is whether every television channel (or internet website) should be made accessible – which may not make sense from a cost perspective – or whether such a duty should be limited to channels and websites run by larger public entities only. In theory, the same logic applies to broadcasting on other media forms – such as online – and even to websites in general: should all media forms and websites be required to be accessible or only those over a certain size/coverage? This issue is not clear from the proposed Directive”. (EP Impact Assessment 2014, p 201-202)
It would be extremely difficult, if not impossible, for all channels and websites to make all their services accessible to all persons with all different forms of disabilities.
Companies could claim that this would produce a “disproportionate burden”, but the assessment and the criteria to establish it are unclear. And if some channels and websites were required to make their services accessible and others not, wouldn’t this be a form of discrimination in itself?
Book publishers could be forced to publish books containing beliefs with which they disagree. For example, a Jewish publisher could be forced to publish a book about the beauty of Islam, a secular humanist publishing house could be forced to publish religious books and vice versa.
This would open the door to litigation because it would be very difficult for a publishing house to argue on what grounds it declined to publish a certain book.
An ethos-based publisher (humanist, atheist, Christian etc.) refuses to publish a book that expresses ideas contrary to his business philosophy; he could be accused for discrimination on the ground of religion and belief. This would constitute an unprecedented infringement of his freedom of contract.
Examples of everyday scenarios
Scenario 1: Extremist group v Landlord
An extremist group derive their guiding principles from the teachings of a radical religious leader. The leader is suspected of incitement to violence, but no conclusive proof has been adduced.
The extremist group wants to rent a publicly advertised apartment in a block of flats, in order to organize gatherings and conferences. The owner refuses to rent it to them because he’s afraid that the extremist nature of the group might scare away his tenants living in the same block of flats.
The group claims that they have been unjustly discriminated against on the basis of their religion.
Although the ETD allows domestic measures “necessary for public security, the maintenance of public order, the prevention of crime, the protection of minors, the protection of health and safety and the rights and freedoms of others “ (ETD, art. 2.8), it isn’t clear whether the landlord would win the case.
This is because:
- there isn’t any specific evidence that the religious leader poses a danger to public security;
- the financial interest of the landlord (the loss of income triggered by some of the tenants moving out of the apartments) isn’t recognized by the ETD as a legitimate interest to justify differential treatment.
Scenario 2: Disabled person v Housing repairs company owner
A man with walking disabilities needs some housing repairs done in his house. He calls a local housing repairs company and the owner of the company comes and inspects his house.
After he has looked at the house, the owner of the company tells the disabled man that he can’t perform the repairs. He says that this is because the work would require many intricate structures, specific to the man’s disabilities, of which he has only limited knowledge.
The disabled man sues the company owner, saying that he was discriminated against on the basis of his disability. He also claims that he was a victim of harassment because the company owner’s refusal had the purpose of violating his dignity (ETD, art. 2.2.c).
Due to the reversal of the burden of proof, the company owner would have to show that his refusal wasn’t discriminatory, and that he had no intention of degrading or humiliating the disabled man.
This last aspect would be difficult, because the definition of harassment relies entirely on subjective notions. And challenging how the disabled man felt in reality exceeds the legal boundaries. The trial would cost time and money and would clearly have a detrimental effect on the company owner’s small business.
Scenario 3: LGBTI pressure group v Book publishers
An EU country has an educational system based on alternative textbooks. The textbooks are provided by five independent publishing houses which work closely with teachers and professors.
A homosexual pressure group feels that the textbooks under-represent and misrepresent LGBTI people. The group decides to sue all five publishing houses because they discriminate on the grounds of sexual orientation.
Although the content of education falls outside the ETD and within Member States’ own competences (ETD, art 3.2.d), this situation shows how the ETD could limit or even annul Member States’ power to regulate this area.
All five publishing houses might be forced to introduce representation of LGBTI people and promote homosexual activities and behavior. The country would be “free” to choose between five textbooks that equally endorse alternative sexualities.
Scenario 4: Engaged couple v Bakery
An engaged man and woman are both religious and they attend a certain church on a regular basis. There are rumors and allegations that the church brainwashes its members and alienates them from their relatives.
In preparation for their marriage ceremony, the couple goes to a bakery to place an order for a wedding cake. They want the following message written on the cake: “Church X = Salvation”. The owner of the bakery, whose teenage girl was estranged by Church X, refuses to bake the cake, saying that he could not endorse Church X after it split up his family.
The couple sues the bakery, claiming that the refusal to bake the cake represented discrimination on the basis of religion.
Under the ETD, the bakery owner’s personal story and his concerns do not represent a legitimate ground for differential treatment. In line with the Ashers’ bakery judgment , a business must provide service to all, even though, in this case, it would run counter to freedom of conscience and freedom of expression.