Suspicion of discrimination
Discrimination cases do not normally take place in a public and easily identifiable manner. Therefore, it may be difficult to prove discrimination, as the offender does not generally state the grounds for it. Cases where the grounds for unlawful unequal treatment are clearly expressed are rare. Exceptions are job advertisements looking for people of a certain age or gender (e.g., women aged 25–35 for the position of an assistant). At EU level, for example, there is the Feryn case (see Chapter 2.2), where the owner of a company stated both verbally and through a job advertisement that he would not hire any immigrants and the Court of Justice of the European Union found that there was direct discrimination on the grounds of racial or ethnic origin.
In general, however, it is an offense even if the offender does not declare that they deliberately treat someone differently, or if there does not appear to be any reason for doing so. For example, an older job seeker may be told they are not getting hired because of a lack of appropriate qualifications, and it may therefore be difficult for the victim to prove that they were directly discriminated against on the grounds of their age.
However, in discrimination disputes, the defendant does not have to prove that the applicant is of a certain race, nationality or ethnicity, adheres to a certain religion or belief, has a certain disability, age or sexual orientation, nor does the victim have to do so – such proof is not absolutely necessary in order to establish discrimination, since such a claim would infringe the right to privacy and many people would certainly refrain from going to court as a result (Bell 2002). When investigating a case of discrimination, the main focus must be on whether the person was discriminated against on the alleged grounds, and not, for example, on whether the person’s injury can be considered a disability in accordance with the law (Whittle 2002).
In cases of discrimination, it is also irrelevant whether the alleged discriminator had prejudices leading to discrimination or whether they had a conscious plan to discriminate, but it is necessary to focus on the objective facts of the case. The exception is criminal proceedings where intent is of decisive importance.
In order to prove past or ongoing indirect discrimination, statistical data shall be used to compare the situation of minority groups with that of majority groups.
4.1. Burden of proof
Discrimination cases can be heard in Estonia in civil and administrative law, but also in criminal proceedings. On the basis of different procedural laws, the requirements and the burden of proof differ in these proceedings – for example, the burden of proof in criminal proceedings is significantly higher.
In discrimination cases the burden of proof is shared, which is not applicable in administrative and criminal proceedings.
The principle of a shared burden of proof was originally developed by the case law of the European Court of Justice and was later incorporated into the European Union legislation on gender equality with the adoption of EU Council Directive 97/80/EC. In Estonian law, the shared burden of proof is also included in the law, following the example of EU legislation (§ 8 of the Equal Treatment Act).
The shared burden of proof means that if a complaint or an application describes the facts and circumstances on the basis of which it can be presumed that discrimination has taken place, the alleged offender must prove that they have not violated the principle of equal treatment (§ 8 of the Equal Treatment Act). If the person fails to explain the reasons or motives for their behaviour or the decision made, it shall be equal to admission of discrimination.
At the same time, the victim of discrimination has the obligation to submit all the facts on the basis of which it can be presumed that the discrimination has taken place, when applying to a court, a labour dispute committee or the commissioner for gender equality and equal treatment (§ 8 (1) of the Equal Treatment Act). The motivation or intent of the perpetrator of discrimination is irrelevant in the proof stage. The actual result is decisive. If the employer himself does not want to discriminate against his employee, but does so because the customer wants it, this does not prove non-discrimination. Non-discrimination is also not proved by the fact that the intention was to do good, but to the surprise of the doer, it had a negative effect on the target group.
The transfer of the burden of proof is particularly important in identifying a breach of rules of equal treatment, because the person may not know on which grounds they were treated less favourably, but they may have doubts as to what it was.
Examples
In the case of the European Court of Human Rights concerning the placement of Roma children in special schools, the Court confirmed that the applicant only had to show that there was a difference in treatment. It is then up to the institution/person accused of discrimination (in this case the government) to prove that the difference in treatment was justified. (D.H. and Others v. the Czech Republic, 2007 – the case is described in Chapter 2.5.4)
The Swedish Supreme Court heard a case where a lesbian couple was asked to leave a restaurant because they kissed and hugged. The Supreme Court established the facts and found that 1) the women were on the premises of the restaurant, 2) they hugged and kissed, 3) they were asked to stop, 4) people in the restaurant are usually not asked to stop hugging and kissing and to leave because of it. The court then applied the shared burden of proof and required the restaurant to prove that the reason for requesting them to leave was some other legitimate aim not related to sexual orientation. The restaurant could not prove the existence of another aim and the court awarded damages. (HomO v. Restaurang Fridhem Handelsbolag, T 2100-05)
The applicant applied for the position of software developer, but was not recruited. She found that she fulfilled all the requirements for the post, but was not recruited because of her gender, age and ethnicity. The Court of Justice of the European Union stated that an employer has no legal obligation to justify why a candidate who fulfils all the conditions set out in the job advertisement was rejected. However, the refusal to provide this information is one element of the assumption that discrimination took place. (C-415/10, Galina Meister v. SPeech Design Carrier Systems GmbH)
In two separate cases, the Court of Justice of the European Union discussed public statements of a person in a position of leadership, which led to the assumption that employees in these organisations were discriminated against on a prohibited ground. In the Feryn case, the head of the company stated that he does not hire employees who are not white, and in the Accept case, the donor of the football club stated that he does not hire homosexual players. In the first case, it would have been necessary to demonstrate that actual recruitment practices did not treat white and non-white people differently, and that non-white people were routinely recruited. In the second case, it would not have been appropriate to show the actual recruitment practice, as it would have violated the players’ right to privacy. However, it would have been enough if the football club had distanced itself from the statements of its donor and proved that there are explicit points in the recruitment policy that ensure that the principle of equal treatment is observed. (C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV and C-81/12, Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării)
4.2. Documentation
Although the shared burden on proof means that the burden of proof is not just on the victim of discrimination, it is still in the victim’s own interest to provide evidence to substantiate their case.
Regardless of the institution to which the discrimination case is referred, it is advisable to first open up the facts of the case in detail, systematise and collect additional materials to help convince the court or provide detailed information to the labour dispute committee or the gender equality and equal treatment commissioner to make their statement.
Sample control questionnaire:
- Who?
Name, position or other important title of the person who was the direct perpetrator, for example: colleague First name Last name, recruitment company personnel specialist First name Last name - Did what? What happened?
Describe what happened. For example: he informed the victim that he did not want her on his team because she was a woman. - To whom?
The victim’s name and any other persons who may have experienced the same violation. - When?
Date(s) and time(s) as accurately as possible.
- Where exactly?
Place and address, for example: Name office’s shared kitchen, meeting room (Tee 7-16, Tallinn)
- In what way?
The way it happened, for example: via e-mail, during a conversation.
- What was the consequence?
The victim’s subjective feeling as a result of the violation, for example, felt humiliated in front of other colleagues because it happened in their presence.
- Who is responsible for what happened?
Other people or institutions can be mentioned here in addition to the direct violator of the equal treatment norm, for example: their employer who refused to deal with the incident.
- Are there any witnesses?
Give the names of witnesses, if possible, contact details and their role in the situation, for example: eyewitness, representative of the public authority.
- Are there other materials or documents directly confirming or supporting the incident?
Submit other materials supporting the incident, for example: relevant e-mail correspondence, internal rules of procedure that contributed to the incident, police report, etc. - Is there any additional material that would help to understand the extent and nature of what happened?
Submit or refer to relevant studies, statistics, expert opinion.