EU Equality Law: Looking Ahead after 20 Years of Policymaking*

By Sara Benedi Lahuerta and Ania Zbyszewska

The adoption of the European Pillar of Social Rights (‘the Pillar’) in 2017 and the 20-year anniversary of the entry into force of the Treaty of Amsterdam in 2019 provide an auspicious moment for not only take stock of accomplishments in the field of EU equality law and critically reflect on the past, but also to look forward. The Treaty of Amsterdam expanded the legal base (current Article 19 TFEU) for adopting EU legislation to six new anti-discrimination grounds (race or ethnic origin, religion or belief, disability, age and sexual orientation) and the recent adoption of the Pillar suggests that EU equality law and policy could now be at a pivotal point. In this brief blog post, we reflect on what, in our view, is one of the key current problems of EU equality law, namely, its (in)coherence at different levels (see Figure 1), and whether the Pillar carries the potential to -at least partially- address this issue.

In considering (in)coherence, we do not mean to suggest that the pursuit of coherence is valuable simply for the sake of coherence alone. We recognize that fragmentation and inconsistency, diversity and plurality, are a part of life and thus part of law and policy, especially one that is to speak to a diverse set of Member States and national models. Also, different discrimination grounds have particularities that may need to be approached differently to be properly addressed. And yet, the lack of coherence within EU equality law and with related policy fields reflect the incremental development of EU law and the often instrumental use of policy, and reveal discrepancies between the aspirational policy discourse and the possibilities of action that the legal framework actually enables. It is against this background that a more consistent and articulated approach -that addresses various forms of incoherence- can be essential to develop and improve the EU equality framework and to better match aspirations to concrete substantive outcomes.

Concerns over the incoherence of EU equality law are not new. In academic scholarship, internalincoherence of EU equality law framework has been long diagnosed through the existence of a ‘hierarchy of rights’ due to the uneven scope of protection offered to the various protected grounds. In a recent academic contribution, Howard (2018) focuses on whether the Court of Justice of the EU (CJEU) might have accentuated those inconsistencies with its interpretation of the 2000 Equality Directives, especially in the cases of Parris, Achbitaand Bougnaoui. She argues that the Court’s fairly narrow and restrictive interpretation in these recent cases vis-à-vis its more generous and expansive approach in jurisprudence on racial and ethnic origin and disability has tended to reinforce the existing hierarchy of rights, or internal incoherence of the EU equality law framework.

Parris, Achbitaand Bougnaoui also illustrate another internal inconsistency in EU equality law, which relates to the very limited consideration of intersectional discrimination at EU level. Referring to these cases, Schiek (2018) shows, for example, the CJEU’s unwillingness to recognize combined discrimination and its tendency to overlook the synergistic interaction of various characteristics, be it age and sexual orientation or (ascribed) race, gender, and religious belief. Contra this, she argues that it is possible to purposely interpret the existing EU law, regardless of its limitations, in a way that better accounts for intersectional discrimination. She proposes to do this through application of the concept of equality nodes, according to which three main nodes – race, gender, and religion – emerge around the key rationales for ascription of difference, and capture overlapping forms of disadvantage..

Besides internal incoherence, the misalignment between EU and international approaches to equality can also be considered as an external incoherence, e.g. EU law does not fully align with the Yogyakarta Principles (2006), which recommends the express prohibition of ‘gender identity’ as a discrimination ground (see further Benedi Lahuerta 2016), with the UN Convention on the Rights of Persons with Disabilities(Waddington and Broderick 2018) or with the case law of the European Court of Human Rights (ECtHR) on wearing religious symbols at the workplace (compare e.g. the CJEU approach in Achbitawith the ECtHR approach in Eweida, see further our policy paper and Ouald Chaib and Contreras 2017).

Finally, the occasional misalignment between formal EU equality law and other legal and policy fields that fall outside of the former’s jurisdictional boundaries but which are essential to achieving equality objectives in practice also leads to incoherence. This broader systemic incoherence also poses a significant problem from the perspective of substantive equality. Zbyszewska (2016), for example, has shown that working-time regulation is one regulatory field with clear implications for equality objectives yet one which has been only very partly adapted to facilitate the latter through policies on work-life balanceand others seeking to accommodate workers’ diverse needs in the workplace. Despite the omnipresence of work-family reconciliation in EU policy instruments, Busby (2018) argues that it has not (yet) become a goal for EU law or policy in its own right. Instead, the approach to work-family reconciliation has emerged out of what she sees as ‘two parallel but…incoherent movements’; namely, the codification of the jurisprudence of the CJEU on sex discrimination in relation to pregnancy and maternity on the one hand, and, the -often instrumental- use of work-family objectives in relation to those of employment activation and active inclusion. While Busby attributes the failure of work-family reconciliation policies to effectively resolve the conflict between paid work and unpaid care to this patchy development, she is nonetheless positive about the potential of the European Commission’s recent ‘New Start’ initiative and the Pillar, including the accompanying legislative proposal for a Directive on work-life balance.[i]

Partly in connection with work-life balance, Bell (2018) has more broadly analysed the coherence of EU equality law as regards accommodation of employees’ diverse needs, including those related to care provision. According to Bell, such accommodation has been justified by various rationales, including health and safety, contractual duties, the pursuit of equality, and policy concerns linked to labour market regulation. While the pursuit of equality has been the most prominent driver of reforms in relation to accommodation, Bell urges that developing an effective approach to accommodation necessitates more complex and nuanced actions than simply extending the disability duty to accommodate to other grounds. Indeed, he points out a number of EU law instruments, in equality law and otherwise, that already impose on employers protective, substantive or procedural accommodation duties in relation to workplace diversity, which suggests that more coherence can be achieved not necessarily by expanding equality law alone, but by tackling the issue on multiple fronts.

The incoherence of EU equality law can also be observed at enforcement level. Directives 2000/43/EC, 2006/54/EC,2010/41/EU and 2014/54/EU introduced a duty to set up equality bodies at national level to promote the effective enforcement of equality legislation. Yet, this requirement introduced another inconsistency in the legal framework: the duty onlyapplies to the grounds of race or ethnic origin, sex and nationality (for mobile workers and their families). While many Member States have gone beyond what the EU law mandate by setting up equality bodies covering many discrimination grounds in a wide variety of fields, this is not the case in all jurisdictions. Many of these bodies also face challenges due to their (lack of) resources, powers and/or independence that hinder the effective performance of their functions under EU equality law. Yet, Kádár (2018) has emphasised the key role they play in implementing and monitoring of EU equal treatment legislation, and in the development and clarification of legislation through case law. It is arguably for this reason that the Commission issued a 2018 Recommendation with more detailed guidance regarding minimum standards for equality bodies (see also Equinet).

In a recent publication, we argue that, rather than being normatively based, the inconsistencies resulting from the patchy nature of the EU equality law stem from the piecemeal manner in which it developed over time. What has been legally possible at EU level depends on a range of structural and political factors shaping the competences and institutional architecture, and on the pool of actors capable of influencing decisions on particular legal and policy developments. Similarly, historical particularities and contingencies of policymaking, rather than purely normative grounds, have contributed to the manner in which the EU equality law framework articulates, at times uneasily and incompletely, with other EU legal and policy fields that do not necessarily fall within equality law ‘proper’ but are essential to achieving equality objectives. Addressing these various forms of incoherence is essential to developing and improving the EU equality framework.

With the adoption of the Pillar in 2017, one key question is whether the latter and the accompanying policies may potentially address these inconsistencies. While we hold out some hope for the possibilities the Pillar carries, our close analysis of the Pillar principles and related policy documentation reveals the predominance of instrumental economic goals for action at expense of human rights or social rationales. We claim that the Pillar’s largely soft and economically oriented thrust tends to limit its transformative potential for infusing more coherence and for rebalancing the social and economic rationalities that the EU integration project has unevenly promoted over the years (Benedi Lahuerta and Zbyszewska 2018). Ultimately, however, time will tell how the Pillar’s potential might be realized.

[i]The Proposal was approved by the European Parliament on the 4thof April 2019 and now only requires the Council’s approval to be formally adopted.

* Note: This blog post is partly based on our guest editorial for the September-October 2018 special issue of the International Journal of Discrimination and the Law (vol 18, issue 2-3), which closed the project: ‘Rethinking EU Equality Law: Towards a more Coherent and Sustainable Regime’.