Direct and Indirect Discrimination in European Union Law – How to Draw a Dividing Line?
Maliszewska-Nienartowicz, J.
Abstract:
The article focuses on the concepts of direct and indirect discrimination and tries to identify their specific features. Both forms are defined in the secondary law of the European Union. According to these regulations direct discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on the basis of any of the prohibited grounds such as sex, racial or ethnic origin, religion, disability, age or sexual orientation. Indirect discrimination takes place where an apparently neutral provision, criterion or practice would put persons protected by the general prohibition of discrimination at a particular disadvantage compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. As a result in the first part of the study the main differences between direct and indirect discrimination are presented. The second part concentrates on the role of the ground in drawing a dividing line between both forms of discrimination. It should be noticed that direct discrimination is based on the forbidden ground e.g. nationality or sex while indirect discrimination refers to neutral criteria whose application puts members of a particular group in a disadvantageous position in relation to other people. Consequently, it is important to state to what result the application of particular provisions or practices leads. Therefore, the third part of the study deals with the analysis of the result of a measure as a factor important for distinguishing direct and indirect discrimination. Finally, the former one can be justified only in situations predicted in the legal provisions, while the latter with reference to a legitimate aim. However, it should be proved that the applied measures are appropriate and necessary in other words proportional. These questions are presented in the fourth part of the study.
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APA citation
- Maliszewska-Nienartowicz, J. (2014). Direct and Indirect Discrimination in European Union Law – How to Draw a Dividing Line? International Journal of Social Sciences, III(1), 41–55.