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 information role 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