• What is the dialogue "They just stuck me in the kitchen.... " about?

Daniel feels angry and powerless. He feels himself to be the victim of discrimination and doesn’t know what to do about it. The following text offers more information on discrimination and the possibility of fighting it.

• What is...?

Discrimination - an individual or group are treated less favourably due to their race, ethnic origin, nationality, gender, sexual orientation, age, disability, religion, faith or belief. Harassment, sexual harassment, victimization, giving of orders for discriminatory conduct or instigation to the same are also considered discrimination. By prohibiting discrimination, the State enforces the right to equal treatment to all its citizens. Protection against discrimination by public or private entities, legal or natural persons can be claimed in court. A significant advance in ensuring the rights of victims of discrimination was the adoption of the Anti-Discrimination Act.

Direct discrimination - when a person is/was/would be treated less favourably in a certain situation than another person in a comparable situation.

Indirect discrimination - cases when a seemingly neutral provision, criterion or custom causes disadvantage to certain people, unless that provision, criterion or custom can be objectively justified by a legitimate cause and unless the means serving that cause are reasonable and necessary. (Justified causes would for example include assigning the role of Marenka in the opera “The Bartered Bride” exclusively to female opera singers. An unjustified cause, on the contrary, would be, for example, assignment of a working position).

Indirect discrimination based on a person's state of health - is a refusal/failure to take measures that, in a particular case, are necessary to provide a disabled individual with access to employment.

Harassment - is a form of conduct towards a person which the person justifiably assesses as unwelcome, inappropriate or offensive, and which has the purpose or effect of violating the person's dignity or creating of a hostile, humiliating or uncomfortable environment.

Sexual harassment - the term sexual harassment refers to any form of unwanted verbal or other behaviour of a sexual nature, whose purpose or effect is a violation of a person's dignity, particularly if it leads to establishment of an intimidating, hostile, degrading, humiliating or offensive environment.

Other forms of harassment - harassment grounded on a person's gender, sexual orientation, racial or ethnic origin, disability, age, religion or belief are also considered acts of discrimination.

• Topic

The right to dignity and protection against discrimination are basic rights of every human being, regardless of their gender, race, colour, language, faith and religion, political or other opinion, national or social origin, affiliation to national or ethnic minority, property, birth or status.

On an international level, legal protection against discrimination is enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and, in particular, in the European Convention on Human Rights and Fundamental Freedoms (Article 14), whose infringement is considered a rightful cause for appealing to the European Court of Human Rights (see below, the case describing the lawsuit “D.H. and others vs. Czech Republic”). In the European Union, the right to equal treatment and protection against discrimination are enacted in both in primary legislation (the Treaty establishing the European Community) and secondary legislation (Directives) as well as in court judgements. Originally, the Treaty provided only for equal treatment of men and women. However, after amendmeny by the Treaty of Amsterdam, it allows the Council to take measures in cases of sexual, racial or ethnic discrimination or discrimination based on a person's religion or belief, disability, age or sexual orientation. There are plenty of anti-discrimination directives and they are binding for a State in the sense of the need to achieve the objectives contained therein; yet, the choice of forms and means of achieving the objectives has been left to each individual Member State. Deadlines have been set to implement (transpose) the directives and if a State fails to meet them (e.g. due to failure to adopt a law), the directives can be directly applicable by those who are seeking protection under them.

At the national level, protection against discrimination is ensured by the Act on Equal Treatment and on Legal Means of Protection against Discrimination, and changes to some other acts (Anti-Discrimination Act) in force as of September 1, 2009.

Under the Act, discrimination is prohibited if it is based on:

• race
• ethnic origin
• nationality
• gender
• sexual orientation
• age
• disability
• religion
• faith
• belief

Protection against discrimination is actively provided in the following contexts:

• employment and access to employment
• access to a occupation, business or other form of self-employment
• employment relations, service work and other forms of employment, including remuneration
• membership and activities in trade unions, employee councils or employer organizations, including benefits provided by such organizations to their members
• membership and activities in professional associations, including benefits provided by such public corporations to their members
• social security
• acknowledgement and granting of social benefits
• access to health care and its provision
• access to education and its provision
• access to goods and services, including housing, provided they are offered to the public or in the course of their provision

In addition to the Anti-Discrimination Act, protection against discrimination is also enshrined in the Employment Act, Act on Consumer Protection, and other legal regulations. The Criminal Code even provides for the crime of apartheid and discrimination against groups of people (Section 402 of the Criminal Code). Such crime is committed by a person who practices apartheid or racial, ethnic, national, religious or class segregation or other, similar form of discrimination against a group of people. By their very nature, such cases are classified as very serious incidents of discrimination against groups of people (deemed crimes against humanity); however, protection does not apply to discriminated individuals.

Discrimination can take the form of conduct or neglect . Discriminatory conduct is a kind of discrimination caused by an activity itself; for example, publication of an advertisement with an unjustifiably selective approach, adoption of a different approach to students based on their faith, or failure to attend to female customers in a restaurant while serving male customers. Discrimination by neglect involves acts of unjustified selective omission; for example, provision of insufficient directions to participants in administrative proceedings due to their sexual orientation or failure to pay attention to acts of bullying of a handicapped child while taking immediate action in other cases.

After this brief definition of what under law qualifies as discrimination, it also needs to be said what cannot be regarded as discrimination. The responsibility for deciding whether a certain conduct will be classified as a breach of the equality principle under the law and the Charter rests with national courts (see below). Binding classification of non-discriminatory conduct is provided in the Anti-discrimination Act (Sections 6 and 7). Further, the issue has been rather extensively dealt with in the set of judgements passed by the Constitutional Court. When deciding whether certain conduct should or should not be classified as discrimination, it needs to be ascertained whether the alleged discrimination:

• falls within the context of social relations protected under the Anti-Discrimination Act (Section 1)
• consists of differences in treatment
• whether such differences in treatment pursued a legitimate objective or not
• whether such differences in treatment were or were not proportionate to the objective

Social relations defined in the Anti-Discrimination Act are specific and cover a wide range of conduct by public or private entities, legal or natural persons. However, there are characteristic types of interpersonal relationships to which protection against discrimination does not apply; for example, when choosing a partner or friends.

To determine whether certain conduct can indeed be classified as discriminatory, we need to find sufficiently comparable criteria allowing us to decide whether discrimination actually occurred or not. However, adopting different approaches to different groups of people doesn't necessarily constitute an act of discrimination: it may only reflect the different nature of such groups. A typical example is enactment of different retirement age for men and women, which is based on the number of children that a woman gives birth to, i.e. the difference is justified by the presumed physical burden of motherhood.

It is difficult to find a legitimate cause that would justify differences in treatment, or rather discriminatory treatment. In many cases, moreover, a supposedly legitimate cause is used to cover up indirect discrimination. Such causes may include, for example, the physical condition or health status of an employee, or the knowledge and skills of an applicant for a job. If a difference in treatment is not objective and cannot be reasonably justified, it positively constitutes an act of discrimination.

The acceptability of certain differences in treatment is assessed with regard to conflict of laws codified by the Constitution. In other words, there may be situations where it is legitimate to make differences, yet, it is inappropriate or has negative impact on the guaranteed rights and freedoms and thus it is illegal. For example, the Constitutional Court passed a decision in favour of a claimant disputing a discriminatory regulation governing pension insurance. According to the regulation, a man responsible for caring for a child under 4 years of age has to apply for participation in the pension scheme within two years after such care has finished (this regulation does not apply to women). According to the decision of the court, the goal of the regulation was legitimate - to efficiently manage public funds, yet disproportionate.

After having defined discriminatory conduct, we might also stop and ask what cannot qualifiy as discrimination. In the first place, justified requirements with regard to a level of education and special training cannot be classified as discrimination (eg., to be able to perform in the legal profession, a person needs to have a University degree in Law as well as three years’ experience, and also has to pass the bar examination). Such requirements are often provided for in legal regulations. Differences in treatment whose aim is to protect pregnant women or the status of a mother, or protect disabled people and young people under 18 years of age, cannot be considered discrimination. Different treatment due to the physical condition of an applicant for a job cannot be deemed discriminatory either. Also, it is not considered an act of discrimination to allow entry in the labour market only to foreigners who have an appropriate legal status (a visa or long-term residence for employment purposes or a permanent residence).

Positive action

Positive action (in some cases inaccurately denominated “positive discrimination”) means favouring of a group of people over another group of people. By no means does it imply that one group of people will gain advantage at the expense of another; it only refers to efforts whose aim is to achieve equality for all citizens of a particular State. In most legal systems, positive action is seen as a temporary measure. Basically, there are four arguments in favour of positive action:

Positive action is also envisaged in the current Anti-Discrimination Act.

Protection against discrimination

Anyone who becomes a victim of discrimination has the right to be protected against such conduct. Basically, three procedures can be distinguished: protection through public administration authorities within their powers of control or review; legal protection envisaged in the provisions of the Anti-Discrimination Act; and mediation.

Protection provided by public administration authorities consists in filing complaints with respective departments which monitor and review a particular issue. In this way it is possible to demand that certain discriminatory conduct be stopped; however, no compensation for material or non-material damage or reasonable redress can be achieved this way. (For example, the Labour Office is responsible for filing complaints in cases where the applicant was discriminated against while applying for a job. An employee may contact the Labour Inspectorate if s/he thinks that s/he had been discriminated in his/her current job. In case of discrimination at school, complaints may be made to the school inspection, etc.).

On December 1, 2009, the institution of Ombudsman was established as a public authority responsible for monitoring and methodology with regard to discrimination. The Ombudsman provides methodological assistance to victims when they need to submit their claim and start proceedings due to an act of discrimination. Although it is possible to inform the Ombudsman of cases of discriminatory conduct, s/he cannot pass decisions thereon. Yet, the Ombudsman may issue opinions. In addition to this, the Ombudsman carries out research, publishes reports and offers recommendations on issues related to discrimination. S/he is also responsible for exchanging available information with the respective European bodies.

Victims of discrimination might want to bring their complaint to court. Basically, they may demand that discriminatory conduct be stopped and that its consequences be eliminated, and ask for adequate compensation. If such protection is insufficient, it is possible to claim financial compensation for non-material damage, especially in cases of substantial impairment of reputation or dignity of the discriminated person or his/her social esteem. The amount of compensation for non-material damage is determined by the court based on the nature of the damage and the circumstances under which the infringement occurred. Different criteria are used when assessing an isolated case of discrimination involving failure to attend to a customer, compared to cases of unequal treatment consisting of a failure to admit a pupil to a regular school, thus denying him/her access to education and subsequent employment.

The general principle underlying civil litigation is to prove a claim by bringing appropriate evidence. The responsibility for submitting evidence which would prove the veracity of a certain claim or situation lies wholly on the claimant. Since cases of discrimination are characterized by the fact that it is often difficult for a victim of discrimination to prove discriminatory conduct in its entirety, legal systems as a rule transfer part of the responsibility for providing evidence to the defendant, so as to give the discriminated individual (who is inherently in a weaker position) a chance to prove the discriminatory conduct, eliminate it, and possibly also get compensation.

The amendment to the Code of Civil Procedure introduced the concept of a “transferred”, or rather shared burden of proof in discrimination suits (in particular, Section 133 of Act No. 99/1963 Coll., as amended). It has been referred to as “shared” because the individual claiming to be a victim of discrimination must prove the claim to some extent. First, s/he must demonstrate that s/he has been treated less favourably than another person in a comparable situation based on certain discriminatory grounds. Thus, the evidence submitted by the claimant must be indicative of the fact that the alleged differences in treatment were due to some illegal grounds. However, the claimant is not obliged to provide evidence with regard to the alleged discriminatory grounds. If the claimant satisfies the burden of pleading and the burden of proof, the burden of proof shall be transferred to the defendant. As a result, the defendant must plead and prove that no act of discrimination has been committed and that the conduct that led the claimant to take legal action against an act of discrimination had a legitimate justification and objective, and that reasonable means were used when pursuing that objective (a test of legitimacy and proportionality). If the defendant satisfies the burden of proof, the court cannot pass a judgement of discrimination against the defendant.

However, the range of cases when the burden of proof is transferred to the defendant does not fully overlap with the amendment to the Anti-Discrimination Act. The Anti-Discrimination Act prohibits discrimination based on race, ethnic origin, nationality, gender, sexual orientation, age, disability, religion, faith and belief in all areas defined in Section 1, paragraph 1 of the Anti-Discrimination Act. Under Section 133a; however, the burden of proof is transferred in discrimination cases on these grounds (except ethnic origin) only in the following contexts: employment, occupation, business or other form of self-employment, membership in employee/employer associations, and membership and activities in professional associations. In cases of discrimination due to racial or ethnic origin, the burden of proof is transferred in a situation involving health care and social care provision, access to education and training, access to public procurement, access to housing, membership in interest groups and in case of selling goods in shops or providing services.

An important role in providing protection against discrimination is played by non-profit organizations, which can actively support victims of discrimination, provide them with information about legal aid and provide assistance when they need to prepare claims and submit them. Non-governmental organizations established for the purposes of protection against discrimination are entitled to suggest to administrative authorities exercising control over compliance with legal regulations in which cases they should carry out a check or initiate administrative proceedings. Often, non-governmental organizations submit their own drafts of legislative acts or comment on existing legislative acts; they may also actively participate in monitoring of discrimination in the Czech Republic (watchdog activities). Major organizations involved in discrimination include Liga lidskych prav (League of Human Rights), Poradna pro obcanstvi, obcanska a lidska prava (Citizen Counselling Centre: Civil and Human Rights), Romea (Anti-Discrimination helpline), Zvule prava (Tyranny of the Law) (discrimination against Roma), Clovek v tisni (People in Need), etc.

• Stories and examples

Direct discrimination

Mrs. B. B. is a teacher of Czech. She teaches mainly courses for Roma students, because she is also a Roma, and is thus aware of the importance that the Roma minority attaches to full proficiency in the language of the majority. After a seminar for teachers of Czech, she went to a nearby fast food restaurant. As soon as she joined the queue, the attendant asked her to leave, explaining that they don't want Roma people there. Mrs. B.B. left and felt very humiliated.

Indirect discrimination

A small town in northern Moravia decided stop supporting inadaptable citizens, and changed the rules for assigning municipal apartments. The new regulation restricted applications for municipal flats only to adult citizens of the Czech Republic with at least two years’ permanent residence in the town, and with a clean criminal record for at least five years. The requirement of a clean criminal record prevented 90% of the local Roma population applying for a flat.

(The story has been taken from Bobek, M., Bouckova, P., Kuhn, Z. (2007): Rovnost a diskriminace. (Equality and discrimination). CHBeck, Prague.)

D. H. vs. Czech Republic

In 2007, the Grand Chamber of the European Court of Human Rights passed a judgement in the lawsuit “D. H. vs. Czech Republic”. The claimant was a group of Roma who were placed in special schools, or rather schools for children with mental disabilities. The claimants asserted that the latent criterion used for placing children in such types of schools was their ethnic origin. Before their enrolment in schools, pupils had been subjected to tests designed for the socio-culturally homogeneous (white) population, which did not take into account the level of socially conditioned knowledge. Indirect discrimination was demonstrated by comparing the statistical data about the incidence of mental disorders in the majority population with the number of Roma children placed in schools for mentally disabled children. This comparison pointed to the fact that in the majority population mental disability occurs in isolated cases, while in the Roma population such cases appear to be dozens of times more likely, judging by the number of Roma pupils in special schools. Since it is impossible to draw such a conclusion, it was stated that the State breached its duty to ensure access to education for all citizens without discrimination. Thus, in the long run, the State has been partially responsible for the difficulties Roma experience in terms of finding a job, and their lack of education due to their placement in special schools.

Updated 15 November 2010

• Sources

Bobek, M., Bouckova, P., Kuhn, Z. (2007): Rovnost a diskriminace (Equality and discrimination). C. H. Beck, Praha.

Pavlicek, V. (1999): Ústava a ústavní řád České republiky. Komentář. (The Constitution and the Institutional Order of the Czech Republic. Commentary). Linde, Prague.

Anti-Discrimination Act (Act No. 198/2009 Coll., On Equal Treatment and Legal Means of Protection against Discrimination and on Changes to Some Acts, as amended)

Employment Act (Act No. 435/2004 Coll., as amended)

Consumer Protection Act (Act No. 634/1992 Coll., as amended)

Code of Civil Procedure (Act No. 99/1963 Coll., as amended)

European Directive 43/2000/EC, implementing equal treatment of people regardless of their ethnic origin.

Website of the Counselling Centre for Civil and Human Rights. http://www.poradna-prava.cz

Ombudsman, http://www.ochrance.cz