Enforcing the law
The courts can make a declaration of discrimination and award compensation for damages, as well as order respondent to take remedial action, or to abstain from, or to terminate particular action or inaction found to be in breach of the law. The equality body, too, can make a finding of discrimination, and order preventive or remedial action. It can also impose financial sanctions. However, it can award no compensation to a victim. Both procedures are universally applicable to both the public and private sectors. They are legally binding. The principle of the shifting burden of proof applies to both.
There have been few cases where judges have found discrimination based solely on respondents’ failure to rebut inferences of discrimination. However, they have consistently taken account of this special evidentiary rule, and some have issued sound dicta on its implications for fact finding. Both procedures are exempt from costs. Complainants use both procedures, with growing intensity.
Under the law, the equality body assists victims of discrimination. In practice, complainants are provided with procedural advice on filing their complaints before the body. In addition, the body has standing to take court proceedings, as well as to join proceedings taken by others. In practice, however, it has not used these possibilities. There are NGOs that actively litigate discrimination cases. Under the law, they have standing to represent complainants in court, as well as to intervene in proceedings in their support. Significantly, NGOs have standing to take public interest court action on their own behalf where the rights of many persons are infringed without authorisation from any particular victim. They also have unconditional standing to initiate proceedings before the equality body without a particular victim. NGOs have taken a number of such public interest lawsuits and equality body proceedings. The result has been enhanced public attention on the issues and some quite strong judicial and equality body decisions. Discrimination litigation, especially when brought by NGOs, often receives coverage by the media. NGOs have used situational testing to uncover and document instances of direct discrimination, and have established such cases in court with the help of testing testimony. They have also used statistics in a few cases. Under civil procedural law, which does not limit the types of evidence, both statistics and testing evidence are implicitly admissible at the discretion of judges. There has been no discussion on the admissibility of statistics or testing. Testing testimony has been admitted as a matter of course as ordinary witness testimony without reference being made to testing’s specific public interest aim. Statistical data, too, has been considered as regular proof by both the equality body and judges. The equality body has even looked at statistical data of its own motion.
Sanctions for discrimination imposed by the equality body include monetary penalties, with maximum amount the equivalent of EURO 1250, and binding instructions for respondents to take particular preventive or remedial action. The equality body actively uses its sanctioning powers, often imposing close to maximum fines, and ordering remedies, such as reinstatement, amendment of regulations etc.
It is unclear, however, to what extent these sanctions are complied with in practice, and how effective the authorities’ response is in cases where they are not. Court-ordered redress includes compensation with no maximum limit, and orders on respondents to take, or to abstain from specific action. The average amounts of compensation for non-pecuniary damages have been moderate, around the equivalent of EURO 300, with exceptional awards of EURO 1250 to 2500.