The ETD fails to meet the main standards for fair laws
The way the ETD has been drafted means that it:
- is open to expansive interpretation
- lays the foundation for new clashes of rights
- creates legal uncertainty for EU citizens
- doesn’t provide sufficient procedural safeguards
The ETD uses extremely vague terms as criteria for discrimination. This will lead to expansive interpretation. For example, it is difficult to see what the following extracts mean (emphasis added):
- “Harassment can take different forms, including unwanted verbal, physical, or other non-verbal conduct. Such conduct may be deemed harassment in the meaning of this Directive when it is either repeated or otherwise so serious in nature that it has the purpose or effect of violating thedignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment” (recital 12b, see also article 2 Draft ETD)
- In assessing what a disproportionate burden means, account shall be taken of “the negative impact on the person with disability of not providing the measure” (article 4b Draft ETD)
- Discrimination occurs (…) when a person is treated less favourably, or harassed, because of an association which that person has, with persons of a particular religion or belief, disability, age or sexual orientation (article 4b Draft ETD)
- “(…) facts from which it may be presumed that there has been discrimination” (article 8 Draft ETD)
- “exceptions can be made if they are deemed appropriate and necessary” (recital 14a Draft ETD)
Clash of rights
The ETD not only uses vague, subjective terms, it also has an extremely wide scope of application, and grounds that are partly subjective and mutable. This combination lays the foundation for a new degree of clashes of rights: the all-encompassing principle of non-discrimination clashes with basic freedoms (i.e. freedom of contract, freedom of thought, conscience, and religion, freedom of expression, freedom of association.
Three conditions are commonly accepted as the main qualities of a piece of legislation: certainty (the law must give anyone subject to it the ability to regulate their conduct), foreseeability (reasonable anticipation of the possible results of an action) and predictability (like cases are treated alike) 1.
The subjective feelings and perceptions of an alleged victim of discrimination, expressed in open-ended terms, would significantly reduce certainty, foreseeability and predictability of the consequences. This means it would be impossible for EU citizens (engaged in either commercial or non-commercial relations) to have certainty regarding when they are or are not within the legal boundaries of the new equality law.
No procedural safeguards
The ETD doesn’t provide for legal protection against arbitrary interferences (procedural safeguards). This also contradicts the jurisprudence of the European Court of Human Rights 2.
The ETD creates a “presumption of guilt”
The ETD reverses the burden of proof so that anyone who is accused of “discrimination” must prove their innocence. At the same time, anyone who claims to be a victim of discrimination is automatically assumed to be one.
The result of this is a trap from which there is no escape. There is no way that the defendant can disprove that their actions “intimidated” or “offended” the victim. This is because the only standard for assessing this is the victim’s own subjective perception.
It would also be extremely difficult for the defendant to disprove the ETD’s legal assumption that he/she acted as they did solely because of prejudice against the victim’s religion, belief, age, disability, or sexual orientation.
This “presumption of guilt” contradicts the standards of procedural rights, i.e. the rights that apply during a trial. One basic procedural right is the presumption of innocence. The presumption of guilt leaves the ETD open to judicial bias.
The ETD undermines basic freedoms
The ETD would undermine fundamental freedoms, including:
- freedom of contract
- freedom of thought, conscience and religion
- freedom of association
- freedom of expression
In certain circumstances, the ETD would also curtail citizens’ religious freedom. It could create irresolvable moral conflicts, forcing religious persons to choose between their beliefs and their business.
The ETD doesn’t give any guarantees that would safeguard or balance these competing interests. This leaves the door open to unjustified curtailments (or even annulments) of certain human rights under the guise of tackling discrimination.
Clashes between different categories of human rights are the most complicated and sensitive to regulate. If possible, legislative proposals should avoid such conflicts. At the very least, they should build in adequate safeguards for protection and ensure that the curtailment of one category of human rights is proportionate and necessary. This is something that the ETD fails to do.