ENAR conference on the transposition of the Race Directive – building strategies for equality...
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Transcript of ENAR conference on the transposition of the Race Directive – building strategies for equality...
ENAR conference on the transposition of the Race Directive – building
strategies for equality
SHIFT OF THE BURDEN OF PROOF
Barbara Cohen, UK
shift of the burden of proof - background
• very difficult for the victim to prove discrimination
• discriminator holds all of the information but unwilling to admit discrimination
• lack of consistency - in domestic courts and in different member states
• developed from ECJ decisions in ‘equal pay’ cases
shift of the burden of proof - the Race Directive Article 8
• Member States must make appropriate changes in their national judicial systems
• If victim establishes facts from which direct or indirect discrimination may be presumed, then it is for the respondent to prove there has been no breach of the principle of equal treatment
• Does not apply to criminal proceedings• Not required to be applied to investigative
procedures
shift of the burden of proof - how does it work
DIRECT DISCRIMINATION:
1.Victim must establish difference in racial or ethnic origin and difference in treatment
2. THEN - unless respondent can provide another satisfactory explanation
3. Court or tribunal must uphold complaint of direct racial discrimination
shift of the burden of proof - how does it work
INDIRECT DISCRIMINATION:
1.Victim must show a provision, criterion or practice that particularly disadvantages persons of a racial or ethnic origin
2. AND IF respondent cannot provide another satisfactory explanation
3. THEN – unless respondent can justify
4. Court or tribunal must uphold complaint of indirect racial discrimination
shift of the burden of proof - burden begins with the ‘victim’
Problem of obtaining evidence to show difference in treatment or ‘particular disadvantage’- before begin legal proceedings - court or tribunal ordering respondent to disclose evidence- other sources of informationrole for NGOs: advising and representing victims of discrimination
shift of the burden of proof - the Race Directive Article 10
Duty of the Member State to make people aware of the shift of the burden of proof in race discrimination cases:
• To members of ethnic minority communities• To all employers • To all other public and private bodies • To lawyers, judges and others who staff judicial
agencies
key roles for NGOs: to lobby national government and to help raise awareness