1. Framing Antidiscrimination in Europe : Comparative findings and policy recommendations Eléonore Lépinard and Patrick Simon - INED

2. Outline Where does antidiscrimination (as a paradigm and a legal framework) come from ? What are the legal and political consequences in EU countries ? Shortcomings and challenges for the implementation of antidiscrimination paradigm Policy recommendations

3. New landscape in migration related diversity 18,5 millions of « Third Country Nationals » in 2006 (3,8% of 493 millions), but when including immigrants with EU citizenship, estimates rise to 39 millions (8%) A Second Generation issue in most post labour migration countries New migration countries (south of Europe, and less obvious, east of Europe) Multiculturalism backlash and crisis of models of integration Islam and Muslims as a major concern National identity as a raising concern

4. New political framing, new challenges Identity politics and the « Diversity Buzz » : from otherness to diversity within Clash of strategies and political philosophies in post 1945 illegitimacy of “race” and ethnicity: revealing racial and ethnic divisions or keeping the veil of ignorance Different and competing objectives : community cohesion, recognition of identities, tackling discrimination, dealing with the memory of slavery and colonialism, revising national identities in an era of post- mass migration International legal framework to tackle discrimination, including 2 EU directives:  Employment directive 78/2000 covering 6 grounds of discrimination in all aspects of employment  Race directive 43/2000 covering racial and ethnic discrimination in all domains, including access to goods and services

5. EU Race Directive (2000) Transfer of the concept of Indirect discrimination: “indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.” A step towards a more effective equality or equity : door opens to positive action Comprehensive protection for a wider list of grounds: race and ethnicity, but also age, sexual preferences, disability and religion Creation of “equality bodies” addressing all motives in a “one size fits all”

6. Different processes of transposition and implementation Even if equality is a core value for EU countries, the antidiscrimination paradigm and its equipments have not really been understood Antidiscrimination is imported through a top down process: in most of EU countries, the paradigm is not resulting from an internal dynamic Implementation depends on the political will, but also on the support of stakeholders (public authorities, judges and lawyers, employers, trade unions, NGOs) and public opinion

7. Countries in line with the EU framework Britain Sharing of burden of proof Merging different specialized equality bodies in one single EHRC An outlier with a comprehensive antidiscrimination system prior to directive No enforcement powers for EHRC France Comprehensive legal framework Creation of HALDE Civil procedures More grounds No positive action No ethnic monitoring Stakeholders and judicial actors don’t make use of the new legal framework Belgium Comprehensive legal framework Extension of powers of equality body Civil procedures More grounds Scarce positive action No ethnic monitoring (Walloon region) Stakeholders and judicial actors don’t make use of the new legal framework

8. Countries with a top-down transposition and no debate GreeceTransposition after infringement procedure Restrictions Issue is framed as economic inequalities faced by migrants, specially undocumented SpainPiecemeal transposition Introduction of burden sharing Legitimation of positive action Equality body to come Lack of awareness Policies focusing on integration and immigrants LatviaPiecemeal transposition Restrictions, specially on burden of proof Limited implementation Lack of awareness and appropriation PolandMinimal transpositionNo equality Body No political agenda or public attention to discrimination

9. Countries resisting topdown transposition DenmarkTransposition a minima New Equality body replacing a former institution, but no investigation power National identity and political culture not receptive to antidiscrimination Lack of legal knowledge from judicial actors GermanyPartial transposition, after infringement Equality body is placed under the responsibility of a ministry Lack of awareness Trade Unions and NGOs are not lobbying against discrimination Clashes with integration paradigm

10. Why anti-discrimination is not sufficiently internalised yet Lack of familiarity with the antidiscrimination framing Weak appropriation of the legal strategy Equality bodies are not really independents and they are understaffed and under resourced Competition between grounds, lack of efficiency Number of complaints are very low :  Not a single case in Greece in 3 years, 311cases in Denmark in 4 years, and 15 successful cases, Belgium and France receive more complaints, but only a few (less than 20) go to prosecution Legal action is preferred to equal opportunities policies : no positive duty Religion as a forgotten ground for discrimination (to the exception of the UK)

11. Contradictions between integration and anti-discrimination Discrimination is not the other side of integration The antidiscrimination concepts (indirect discrimination =disparate impact) and the related action schemes are against the traditional integrationist strategy of colour- blindness (non-differentiation). Groups, more than individuals, are at stake in indirect discrimination : promotion of collective rights is complementary with the defence of individual rights. Antidiscrimination puts the burden on societies (which have to treat fairly anyone without consideration of ethnic and racial origin, gender, religion, sexual orientation, etc), integration puts it on the immigrants (who have to prove adaptation to the system)

12. Monitoring discrimination : the issue of data collection Almost any monitoring system implemented by equality bodies Problems of definition of « vulnerable groups » : mostly immigrants, specially illegal migrants, sometimes second generation and rarely ethnic and racial minorities Hostility against « ethnic statistics » in Western and South of Europe:  A concern for data protection and an echo of past misuses  Statistics challenge the political model of “equality through uniformity”  Statistics collection use a huge engineering of categories, questionnaire, files, administrative rules which bring race and ethnicity at the heart of everyday life

13. Migration related data collected in official statistics

14. Key messages for policy makers Harmonization of statistics, guidelines for data collection and building a comprehensive monitoring system connected to the equality body (on the model of the Equal Opportunity Commission in US Developing positive action, with equality action plan by public authorities and employers, and obligation to report on the progress made by impact assessment Train legal actors (lawyers and judges), NGOs and trade unions so that they make use of antidiscrimination laws Revise laws and policies to adopt the maximum standard (instead of the minimum compliance)  Raise NGO capacity to provide support, including legal support and litigation, including through cross-national trainings and cooperation projects, and promote the development of NGO victim support network