Sensitive or controversial issues

• Author: Romanita Iordache
• Pages: 94-97

94

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

1. None of the definitions of harassment from the va rious relevant norms (Anti -

discrimination Law, Equal Opportunities Law, Criminal Code) are in full compliance with the

definition of harassment set out in Article 2(3) of the directives, as the Romanian provisions

fail to punish as harassment unwanted conduct with the purpose of violating the dignity of

a person and of creating an intimidating, hostile, degrading, humiliating or offensive

environment and punish only harassment having the effect of violating the dignity of a

person.

2. The use of the word ‘order’ instead of ‘instruction’ in Romanian might lead to a restrictive

interpretation of instruction s to discriminat e, limiting the prohibition to hierarchical

relations. While the NCCD interpretation complies with the meaning of th e directives,

interpreting the t erminology extensively, the courts have still to determine t he

understanding of Article 2(2) and its limitations.

3. The c oncept of reasonable accommodation for p ersons with dis abilities is not included

in the Romanian Anti -discrimination Law but is currently defined in special legislation on

the promotion and protection of the rights of persons with disabilities but without provision

for any sanction. The jurisprudence of the NCCD and of the courts is not unitary. Although

the UN Convention on the Rights of Persons with Disabilities has been signed and ratified

by Romania, the official translati on includes major errors on key c oncepts, such a s ‘legal

capacity,’ which was translated as ‘legal assistance,’ and t here have been no attempts to

further harmonise the legislation with the convention.

11.2 Other issues of concern

Disability, age and sexual orientation are not established as protected grounds in Article 16

of the Romanian Constitution. Notably, disability is not specifica lly mentioned as a

protected ground in the special clauses in the Anti -discrimination Law defining prohibition

of discrimination in employment (Articles 5-8), access to public services – social protection,

advantages, goods and services, housing (Article 10), education (Article 11), forced

displacement (Article 13), and access to public places (Article 14). This is an omission in

the law that is, however, rectified in practice by the NCCD and by the courts by interpreting

these articles in conjunction with the general definitions of discrimination including the full

list of protected grounds in Article 2 of the Anti-discrimination La w.

An Emergency Ordinance ad opted in December 2012, amending the Equal Opportunities

Law, introduced different definitions of discrimination on t he ground of gender, creating

different legal regimes and generating confusion.

Romanian anti-discrimination legislation a pplies to an open -ended list of criteria of

protection going beyond those provided by the directives and the scope of the Anti-

discrimination Law is applicable to areas beyond those set out in the directives. The open

list of protected grounds also gives rise to some disadvantages, as the ever-expanding and

tailored list of criteria deemed as b eing in need of protection turns the anti-discrimination

principle into a general equality and fairness principle.

The most worrying concern in relation with the enforcement of the prohibition of

discrimination in the Romanian legislation is the limitation of the Ant i-discrimination Law

by the Romanian Constitutional Court in a series of decisions issued in 2008 and 2009,

which limited both th e mandate of the NCCD266 and th at of the civil courts in relation to

266 Romanian Constitutional Court, Decision 997, 7 September 2008, which found that Art. 20(3) of the Anti-

discrimination Law (GO 137/2000), defining the mandate of the NCCD in relation to discrimination triggered

by legislative provisions, is unconstitutional.