Enforcing the law
In especially urgent cases, the judge can issue an interim order, the violation of which (as well as that of the order issued in the final decision) is a criminal offence. The judge can order the production of a plan for the rectification of discrimination. Moreover, the general law on pre-trial mediation now applies to all anti-discrimination claims, thus extending the possibility that Decree 216/2003 previously provided for employment and occupation-related claims alone. Concerning standing to litigate, both Decrees contain special rules. With regard to race and ethnic origin, the Department for Equal Opportunities (Dipartimento per le Pari Opportunità)of the Presidency of the Council of Ministers keeps a list, approved by the Ministries of Labour/Welfare and Equal Opportunities, of associations and bodies which have standing to litigate in support of or on behalf of victims of discrimination, identified on the basis of ‘their purposes and of the degree of continuity in their action’. In cases concerning the other grounds of discrimination, the Decree transposing Directive 2000/78/EC now grants standing to relevant organisations without introducing a special register. With regard to discrimination on the ground of disability outside employment, the 2006 Disability Discrimination Act introduced a system similar to that in force for race and ethnicity.
As regards penalties, besides those mentioned above (damages and others), general legislation provides labour law sanctions such as the invalidity of any discriminatory act as well as measures against unlawful dismissal (including compulsory reinstatement in the work place). Especially in the field of employment and occupation, the overall system of sanctions is likely to have a significant deterrent effect.
Article 28 of Legislative Decree 150/2011 provides a new rule on the burden of proof that introduces reversal once the claimant produces evidence (which may include statistical data) that can precisely and consistently establish a presumption of the existence of discriminatory acts, agreements or behaviours. This rule on the burden of proof is now applicable to every ground of discrimination.
Situation testing can be used as evidence in civil proceedings. However, while there are no legal obstacles to its use, neither is there an express provision allowing it, and evidence gathered with situation testing has not been presented as such to a court.
The system is thus still based on a claim filed by the victim to a court. Recently the number of cases of discrimination has risen, although the vast majority concern discrimination on the ground of nationality, which is not covered by the Legislative Decrees implementing the 2000 Directives but is deemed to be covered by Article 43 of Legislative Decree 286/1998 on Immigration, which bans discrimination on grounds, inter alia, of national origin. This expression has been given a wide interpretation that covers nationality.