Overall assessment

• Author: Thomasberger, Martina
• Pages: 55-56

55

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

persons.

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

accordingly.