RACE RELATIONS

Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV

It is well established in law that employers cannot directly discriminate against job applicants because of their race. In Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV, the European Court of Justice (ECJ) said that there does not always have to be an identifiable complainant for discrimination to have taken place.

Basic facts

In early 2005, Firma Feryn NV (a Belgian company) advertised for fitters to install doors at customers’ houses by putting a large “vacancies” sign outside its premises.

Despite the fact that it was having trouble recruiting, one of its directors stated publicly on national television and in newspaper interviews in April 2005 that the company would not employ any “immigrants” because customers did not want them in their homes.

The Belgian Centre for Equal Opportunities and Combating Racism complained that the company was operating a discriminatory recruitment policy contrary to the 2000 European Directive outlawing discrimination on the grounds of racial or ethnic origin.

The Belgian court dismissed the claim on the ground that “there was no proof nor was there a presumption that a person had applied for a job and had not been employed as a result of his ethnic origin”. It said that the public statements were just evidence of potential, not actual, acts of discrimination.

The case was referred to the ECJ to determine if the company’s public statements constituted direct discrimination under the Directive.

Relevant law

Article 2(2)(a) states that “direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin.”

Article 8(1) states that “…it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.'

Article 15 requires member states to decide the rules on sanctions and specifies that they may consist of payment of compensation to the victim and must be “effective, proportionate and dissuasive”.

Decision of the ECJ

The ECJ said that although article 2(2)(a) defines direct discrimination as a situation in which “one person is treated less favourably than another … in a comparable situation”, that does not mean there always has to be an identifiable complainant for a claim to come within the scope of the Directive. That, it decided, would be contrary to the objective of the Directive which is “to foster conditions for a socially inclusive labour market”.

It concluded that “The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market, constitutes direct discrimination …”, even if no particular complainant could be identified.

As for article 8(1), the ECJ said that if employers make public statements to the effect that they will not recruit “employees of a certain ethnic or racial origin” that will be enough to raise a “presumption of the existence of a recruitment policy which is directly discriminatory within...Directive 2000/4. It is then for that employer to prove that there was no breach of the principle of equal treatment. It can do so by showing that the undertaking's actual recruitment practice does not correspond to those statements.”

Finally, the ECJ pointed out to member states that national sanctions, provided for under article 15 had to be “effective, proportionate and dissuasive”. These could include a finding of discrimination, a prohibitory injunction ordering the employer to stop the discriminatory practice, and, where appropriate, a fine. Or they could take the form of the award of damages to the body bringing the proceedings.