Enforcing the law

Another reason is the very complex and scattered legal framework; - more than 40 legal acts could be relevant. Furthermore the Equality Bodies are also not able to bundle their efforts. More than nine provincial offices, separate structures for the public service – and a completely separate system for disability are operating instead of a strong single body with strong visibility and powers.

The resources for the Federal Equality Bodies are far too limited. The National Equality Body is totally understaffed. The members of the Equal Treatment Commission are not being paid for this task but perform their functions in addition to their jobs on a voluntary basis. This allows for meeting of the senates in intervals of about six weeks and delays decisions.

NGOs are not sufficiently integrated into the system and many do not receive extra funding for their new tasks.

The enforcement procedures of cases on ground of disability are regulated differently from all the other grounds. Neither the National Equality Body nor the Equal Treatment Commission are responsible for such cases, but there is a compulsory conciliation process before the Federal Social Service, which functions comparably well. The sessions are well organised and held very quickly and in the majority of cases a settlement is reached in due time. This tool has been used about more than 15 times per month on average (in 2009).

Another problem in this phase of implementation is the persisting lack of relevant case law (very few cases). Victims of discrimination cannot be sure of the outcome of their proceedings. In case they bring a lawsuit, they have to bear the full risk and cost of the proceedings. Although NGOs try to accommodate victims in this respect, limited resources and the fear of victims to suffer another setback during court proceedings, make them shy away from judicial redress. NGO standing in court is limited to the possibility of intervention and this is only granted to the umbrella organisations “Litigation Association of NGOs against Discrimination” for all grounds^[1], while the “Austrian National Council of Disabled Persons” is entitled to intervene in disability cases and has a limited (and so far unused) possibility to file a class action.

One relieving factor for victims of discrimination is the shifted burden of proof provision, which allows them to gain at least some confidence.

The sanctions in principle comprise compensation of material and immaterial damages. In regard to harassment, the law fixed minimum levels of compensation (Euro 720 for harassment).

It will be a very difficult task for the courts to decide on the immaterial damages in an effective and dissuasive but still proportionate way, given the lack of legal tradition in this respect. In order to function as a dissuasive sanction, the existing practice of awarding only very low amounts for compensation for immaterial damage will have to be adjusted and changed by the courts. The case-law so far (400 and 1000 Euros in cases of severe harassment) is not convincing. The sanction for discriminatory job-advertisements is not at all dissuasive, effective and proportionate (maximum administrative fine of as low as EUR 360, and exclusion of punishment for first-time-offenders [admonition only]).

To ensure proper enforcement of the provisions it will be important to have good case law in the near future.

At the moment, the majority of victims tend to initiate a proceeding before the Equal Treatment Commission before or instead of addressing the courts.

Looking at the existing case law so far, it can be doubted, whether the sanctions applied can be regarded as being proportionate, effective and dissuasive and there is no experience on how the courts will handle evidence in respect to statistical data and the results of situation testing as the plaintiffs have not used such data. The legislation in principle allows the use of such evidence but there is no such practice so far.