Critically Evaluate the Legal Framework on Equality and Discrimination

Critically evaluate the legal framework on equality and discrimination

My central argument in this essay is that the EU does not go far enough in safeguarding equality; this is demonstrated in the inconsistency in the level of protection in the framework; which demonstrates economic concerns over social concerns.  

Originally the EU prevailed an economic entity to enhance inter state trade. Fredman (2001) argues that social and human rights were viewed to be secondary aims. This was reflected in article 157 TFEU providing equal pay for both men and women suggesting protection centred on the labour market.

There have been many changes to EU law on equality and non discrimination. The dramatic increase being since the incorporation of art 19 TFEU.  Article 19 is significant the first time it identifies groups against discrimination is forbidden. Also, it is not confined to prohibiting discrimination in the workplace. However, there are limitations to article 19 TFEU for example does not have direct effect because it is an enabling provision. Waddington (1999) notes that there was no support against the Member states to give article 19 direct effect. This prevailed the economic concerns over social concerns of citizens. Regardless, due to art 19 moving towards social concerns than with the market.

Even with the article 19 improving the framework there are still problems. The commission had proposed a single piece of legislation yet this suggestion has not proliferated. This would prevent race and ethnic origins being covered separately, by the race directive. Religion and disability remaining grounds are covered by the framework directive. However there is a proposal for access to goods and services directive for these grounds but as yet not been passed.

The EU has identified certain personal attributes that make discrimination unlawful, but has excluded others. Bell (2004) identifies the new equality directive gives different treatment according to various grounds of discrimination. It is clear that some grounds share a higher level of protection than others, for example sex/gender. Under the ground of sex/gender the court in Cornwall county council extended discrimination against transsexuals. There are many flaws in the current framework. Bell and Waddington (2003) refer to this as the hierarchy of equalities.

Chalmers (2010) agrees that some grounds are more addressed to more serious and deserve more protection. Bell and Wadding (2003) argue the need of mechanisms that ensure the interests of more vulnerable groups currently not reflected in the framework. They state there should be a simple framework to which avoids unequal treatment to different groups. I believe this is very difficult to achieve as every discrimination claim has different attributes and some are more serious than others.

Holzleithner (2005) notices form current framework we can see gender and sex are the most protected. However, flaws have been identified concerning the other groups such as under race and ethnic origin. The difficulty in applying the race directive is there is no definition of race or ethnic origin. A major criticism is that the directive fails to notice ‘observable characteristics’. For example, Muslims, Sikhs Jews, Gypsies all form distinct groups whilst Rastafarians do not. Fredman (2001) makes valid point that ethnicity is associated with minorities yet it is minorities that are not recognised. Similarly, with religion some groups maybe protected under the race directive. Even though there are areas that need developing in the equality framework there have been positive steps also, the area of law that concerns disability.  Chalmers (2010) mentions the EU embraced the social model as opposed to the medical model regarding disability widening the scope considerably for citizens.