Sensitive or controversial issues

• Author: Lorenzo Cachón
• Pages: 93-94

93

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the nation al level

The most important points where national law is in breach of the directives are the

following:

− The provision prohibiting direct discrimination does not p rovide for past and

hypothetical discrimination. This is a potential breach of Article 2(2)(a) of both

directives.

− The words ‘hostile’ and ‘degrading’ are not in cluded in the Spanish definitions of

harassment. Judicial intervention can correct this legislative shortcoming, but t his is

a potential breach of Article 2(2)(c) of both directives.

− Sanctions and compensations have been established only in the field of employment

(for all grounds) and for the ground of disability (in all fields). National l aw does not

provide for any sanctions or compensations for discrimination on the ground of racial

or ethnic origin in the areas of education, social protection, social advantages, access

to goods and services, and housing. But in these areas judicial interpretation may be

applicable regarding Criminal law. This judicial interpretation of the Criminal law is

not applicable for access to goods and access to private services. This absence of

sanctions in some areas is a potential breach of Article 15 of Directive 2 000/43/EC.

− The principle of protection against victimisation is transposed, but only in the field of

employment. This is a potential breach of Article 9 of Directive 2000/4 3/EC.

− Law RLD 1/2013 (Article 4(2)) provide s that ‘Persons who have been recognised as

having a degree of disability equal to or greater than 33 % shall be considered as

persons with disabilities.’ This state of affairs must be recognised by an official body,

and it could be argued that this point is in breach of Directive 2000/78, which makes

no such provisions. This restricted definition of ‘persons with disabilities’ applies to

all common legislation, and applied for the p urposes of recognising the right to

reasonable accommodation. This is a potential breach of Article 5 of Directive

2000/78/EC.

11.2 Other issues of concern

− The directives were transposed into national law with no dialogue either with the

social partners or with the NGOs. This led to a formal transposition with shortcomings

and difficulties of application in some cases, due to a lack of sanctions (except in the

field of employment an d on the gr ound of disability, in which there are sanctions).

This legislation based on the directives is n ot well known or understood by the main

players in the legal system. This is one of the main reasons why there have been

hardly any proceedings in Spain in which these provisions hav e been applied. The

author of this report has previously described the process as a ‘hidden transposition’

(Cachón, 2004).

− The effectiveness of the Council for the Elimination of Racial or Ethnic Discrimination

is questionable, because it is made up primarily of Government representatives. This

could jeopardise the independence of the council (although this is formally recognised

by the law). The council lacks a strategy.

− Given the dispersion of the norms on (shifting) the burden of proof, th e differences

in their definitions and the jurisprudence of the Constitutional Court, it would be

appropriate to merge the definitions into a single legal text.

− In the last few years, notable progress ha s been made with significant legal

innovations in the fields of disability (RLD 1/2013 to incorporate the International

Convention on the Rights of Persons with Disabilities) and sexual orientation (the

incorporation of homosexual, lesbian and bisexual people within the general laws of

non-discrimination and the law of homosexual marriage have made these persons

enjoy better rights of equality; in addition, some regions have approved specific