Tag Archives: indirect discrimination

Age discrimination is not in fashion: AG Bobek’s Opinion in Abercrombie & Fitch v Bordonaro

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

This blog post provides a case comment of AG Bobek’s Opinion C-143/16 in Abercrombie & Fitch Italia Srl v Antonino Bordonaro delivered 23 March 2017. This comment was first published on EUtopia law on April 7, 2017 and is reproduced here with thanks.

The Facts

The case is concerned with the conformity of Italian law on on-call contracts with the EU principle of non-discrimination on grounds of age. Antonino Bordonaro was employed under an on-call contract (similar to a zero-hour contract) by Abercrombie & Fitch Italia Srl on a permanent basis. Upon his 25th birthday Mr Bordonaro was dismissed due to the fact that he no longer complied with the conditions for the intermittent contract, as laid down by Article 34(2) Legislative Decree No 276/2003 applicable at the time he was hired.

The (now repealed) Italian law in question provided special arrangements regarding access to and dismissal from on-call contracts for some workers. While on-call contracts under Italian law are usually subject to objective reasons and certain conditions, the provision allowed for such contract to be offered ‘in any event’ to workers under the age of 25 or above the age of 45. At the time of Mr Bordonaro’s dismissal, Article 34(2) had been modified. The older age bracket was lifted from 45 to 55 years of age. Moreover it was specified that an on-call contract can ‘in any event’ be concluded ‘with a person under 24 years of age, on the understanding […] that the contractual service must be performed before the age of 25 is reached’. The modified provision thus allowed automatic termination of permanent on-call contracts with younger workers once they reached the age of 25, in addition to allowing more flexibility regarding younger and older workers’ exposure to on-call contracts.

Unsurprisingly, the Supreme Court of Cassation (Corte Suprema di Cassazione) identified the direct and clear reference to age in Article 34 as potentially problematic and asked the Court of Justice of the European Union (CJEU) to rule on its compatibility with the principle of non-discrimination on grounds of age in Directive 2000/78 and Article 21 of the EU Charter. Continue reading

EU Non-Discrimination Law in the Courts. Approaches to Sex and Sexualities Discrimination in EU Law

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).

img_6534In January 2017, my first monograph entitled EU Non-Discrimination Law in the Courts will be published with Hart Publishing/Bloomsbury. The monograph compares the Dutch and German application of EU non-discrimination law focusing on discrimination on grounds of sex and sexual orientation. It includes an analysis of the case law on direct as well as indirect discrimination and covers the cases which are linked to Article 157 TFEU, the Framework and Recast Directives (excluding equal pay for equal value and social security law).

Since the year 2000, the material and personal scope of EU non-discrimination law has been significantly broadened and has challenged national courts to introduce a comprehensive equality framework into their national law to correspond with the European standard.

The book provides a multi-layered culturally informed comparison of juridical approaches to EU (in)direct sex and sexualities discrimination and its implementation and application in Germany and the Netherlands. It examines how and why national courts apply national non-discrimination law with a European origin differently, although the legislation derives from the same set of EU law and the national courts have to respect the interpretive competence of the Court of Justice of the European Union. As such, it provides an in-depth analysis of the national legal and non-legal context which influences and shapes the implementation and application of non-discrimination law and reveals how some of these factors affect the interpretation and application of national non-discrimination law with a European origin. Continue reading

Some thoughts on European and national non-discrimination law and Brexit

By Dr Jule Mulder, Lecturer in Law (University of Bristol Law School).*

largeEuropean non-discrimination law is a great example of how legal ideas travel around the globe and are modified and improved in the process. As well demonstrated by Fredman[1] and Schiek,[2] non-discrimination law did not originate in Europe nor can the European influence be negated. For example, the concept of indirect discrimination can be traced back to international law and was also pioneered in the US case of Griggs v Duke Power,[3] which challenged under the Civil Rights Act 1964 employment practices that required High School diplomas in order to access specific jobs. This US legal development then inspired European Common Law jurisdictions—most notably the UK—to incorporate similar concepts in their national law (see e.g. Sex Discrimination Act 1975 and Race Relations Act 1976), and the concept of indirect discrimination finally reached the EU in the early 1980s when the Court of Justice of the European Union (CJEU) explicitly referred to the Griggs in its Jenkins Judgment,[4] a case which also originated in the UK.

However, this initial influence from the UK and other common law jurisdictions did not halt in this development. Rather, what started as a relatively insignificant equal pay provision in the Treaty of Rome (Article 119 EEC) and a political compromise between Germany and France,[5] has developed into a large equality framework protecting the characteristics of sex, race and ethnic origin, religion and belief, age, disability, and sexual orientation (e.g. Directives 2000/43, 2000/78 and 2006/64) and goes beyond employment discrimination by also tackling sex and race discrimination within the access to and supply of goods and services (Directives 2000/43 and 2000/113). The 2000 directives expanding the personal scope of EU non-discrimination law were particularly affected by Anglo-Dutch intellectual thought and influence,[6] as jurisdictions that had most significant experience with non-discrimination law covering a wide number of protected characteristics. These new directives, alongside the CJEU interpretation of all the directives and equal pay provision (now Article 157 TFEU), then in turn influenced the law of the Member States including the UK legal framework. Continue reading