Overall assessment

AuthorThomasberger, Martina
12 Overall assessment
The overall i mplementation of the Directives is aiming at thoroughness while taking into
account the systematic requirements of the existing civil law and civil procedure laws. The
implementing legislation leaves a c onsiderable area of interpretatio n to the courts, wh ich
leads to a large body of case law that has to be taken into consid eration in every legal
assessment of a concrete case.
Some areas of concern remain . In many cases, implementation only consists of di rectly
transferring the wording from the German language version of the directives into national
legislation, leaving it to the courts to interpret the meaning with in the systematic context
of the national legislative framework.
Some of the concepts of the directives meet considerable systematic obstacles, e.g.
burden of proof reversal. Prima facie evidence is not part of th e evidentiary rules in civil
cases, and the implementation of th e relevant parts of the directives was n ot carried into
civil proceedings legislation but remain ed within the scope of equal treatment legislation,
leaving the application of the burden of proof rules to case law; bound by the rule of law,
the Su preme Court had to adapt case law to these systematic restraints. This way the
claimant is effectively requ ired to offer at least circumstantial pr oof of his or her claim in
order to enter the stage of material deliberation in a court case.
The implementation of the directives within the scope of civil law and civil proceedings law
also restricts the ability of courts to award higher damages for breaches of discrimination
protections (which can be seen as limitin g the effectiveness of sanctions). Courts are
bound by systematic rules a nd by corresponding cas e law to assess civil damages by the
individual impact of a proven discrimination on the claimant, using their concrete financial
situation as the required measurement. For instance, damages for personal injury in cases
of sexual harassment in the workplace are limited to the amount of two to three monthly
wages by case law, thereby assessing the pers onal impact of proven sexual harassment
incidents on persons with smaller incomes to be financially less than on higher earning
While maternity protection against dismissal and against discrimination is well established
by case law, n either the Maternity Protection Act nor the Fathers Parental Leave A ct
contains specific rules against discrimination on grounds of parental leave. While the
requirements of Article 5 of Directive 2010/18/EU are contained in various statutes, the
legal basis for claims of direct or indirect discrimination on the g rounds of sex/gender in
conjunction with parental leave or with parenting requirements is comparatively wea k.
Workers claiming discrimination based on reasons of t aking up their parental rights and
duties would have to rely on the provisions of the applicable Equal Treatment Act. Every
relevant equal treatment statute contains the wording that ‘no one may be discrimin ated
against because of sex, especially not based on family status or the circumstance of having
children.’ In a court case, claimants would have to offer evidence that connects the fact of
taking parental leave directly to their sex and to their family status as well as to a
discriminating fact or occurrence, wh ile the defendant can offer evidence of other
circumstances or motives being the more probable reasonable cause for their decisions.
The implementation of the directives in Austria significantly relies on a soft law approach,
which manifests in the role of the E quality Ombud and the Equal Treatment Commission
especially. Both institutions only have limited possibilities of taking concrete action against
individual or systematic discriminations. They have no roles in court cases where concrete
decisions about remedies and/or sanctions are being made (with the exception of entering
Commission decisions as non-bin ding additional evidence in court proceedings). The
assessments of discrimination incidents by the Ombud or the Equal Treatment Commission
for the Private Sect or carry no obligation for employers or for contractors to act

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