Main principles and definitions

The Actfurther defines “on grounds of” as the actual, present or past, or assumed possession of one or more protected grounds by the person discriminated against, or by another person who is, in fact or presumably, associated with the person discriminated against, where this association is the cause of the discrimination.

In this way, the law expressly bans discrimination by presumption, as well as by association, incl. by presumed association. A list is provided of illustrative bans on specific directly discriminatory conduct in key fields, such as employment, education, and service provision. The Act does not permit general justification for direct discrimination with respect to any ground. It provides for an exhaustive list of specific exceptions for all protected grounds, including for genuine and determining occupational requirements, for employers with a religious ethos, and for maximum and minimum ages for access to employment and education, requiring objective justification by necessity. The law further excepts different treatment of non-nationals provided for under law, and permits unjustified requirements for age and length of service for purposes of retirement. Positive measures aimed at equalising opportunities for disadvantaged groups are allowed, and expressly mandated.

The Protection Against Discrimination Act defines indirect discrimination as putting a person on protected grounds, through an apparently neutral provision, criterion or practice, at a disadvantage compared with other persons, unless such provision, criterion or practice is objectively justified by a legitimate aim and the means for achieving that aim are appropriate and necessary.

The Protection Against Discrimination Act explicitly provides that harassment, incitement to discrimination, and victimisation constitute forms of discrimination. The Act defines harassmentas any unwanted conduct related to protected grounds and manifested physically, verbally or in any other manner, that has the purpose or effect of violating the dignity of a person and of creating a hostile, offensive, or intimidating environment. Under the law, the protection is explicitly extended to cover harassment by presumption and by association. Incitement to discrimination is defined as direct and intentional encouragement of discrimination where the perpetrator is in a position to influence their audience. The definition expressly includes giving an instruction to discriminate. Victimisation is defined as: a.) less favourable treatment of a person who has undertaken, or is presumed to have undertaken, or to undertake in the future any action for protection against discrimination;  b.) less favourable treatment of a person where a person associated with them has undertaken, or is presumed to have undertaken, or to undertake in the future any action for protection against discrimination;  c.) less favourable treatment of a person who refused to discriminate. Therefore, protection is accorded for victimisation by presumption and by association too.

Action for protection against discrimination may include, but is not limited to, bringing proceedings before the equality body or the court, in either victim or third-party capacity, or testifying in proceedings.

Therefore, any person who assisted any action against discrimination in any way is entitled to protection from victimisation.

Further, the Act defines racial segregation, explicitly providing that it is a form of discrimination.  

These definitions apply to a range of protected grounds, explicitly including race/ethnicity, religion/belief, disability, sexual orientation, age, and sex. Multiple discrimination is defined under the Protection Against Discrimination Act as discrimination on more than one of the protected grounds. The Act places a positive duty on all public bodies, central as well as local, to take as a priority positive measures to equalise opportunities for victims of multiple discrimination. The Act further provides that the specialised equality body, the Protection Against Discrimination Commission, will hear cases of multiple discrimination sitting in extended benches of five rather than three members.

The Protection Against Discrimination Act provides for reasonable accommodation for persons with disabilities in, respectively, employment and education. The limit of this duty is when “the costs are unreasonably big and would seriously hinder” the employer or educator. Under the Integration of Persons with Disabilities Act, the Minister of Education has a duty to provide children with disabilities with a supportive environment for their integrated education. This is an absolute duty, with no disproportionate burden justification. Under this Act, further, the Minister of Education has a duty to create educational opportunities for children with disabilities who are not integrated in a common educational environment. This duty, too, is absolute. Higher education institutions, too, have absolute reasonable accommodation duties under the Integration of Persons with Disabilities Act.

Statutory duties are placed on authorities, employers and educators to mainstream equal treatment and take positive measures on all grounds. Liability is provided for abettors of discrimination, as well as vicarious liability for employers and educators who fail to prevent discrimination by third parties at the work or study place. A shift of the burden of proof is envisaged. A specialised independent body to promote and enforce equal treatment is set up under the law. A special judicial remedy is provided for. Both procedures are exempt from state fees, as well as costs.

Since 2004, the Act has been actively enforced in practice, generating a growing body of case law. The courts, as well as the equality body, have adjudicated a number of cases in positive ways, with some quite progressive and strong decisions, incl. against institutional discrimination. Still, the authorities have to overcome a number of deficiencies in the way they handle the concepts of discrimination law.