Sensitive or controversial issues

• Author: Kogovsek Salamon, Neza
• Pages: 92-93

92

11SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

-There is no clear legal basis for persons with disabilities to be able to claim

reasonable accommodation in employment. Reasonable accommodation rights in

employment are not legally defined in respect of persons who do not have the

official status of disability. This is problematic with regard to Article 5 of Directive

2000/78/EC.

-Apart from defining the exception relating to a genuine occupational requirement,

the law does not include a complete prohibition of direct discrimination on the

grounds of ethnicity beyond employment as required by Directive 2000/43/EC.

-The sanctions (fines for misdemeanours or minor offences) prescribed in a range

from a maximum to a minimum are in fact prescribed only at the minimum end of

the range. The Protection Against Discrimination Act does not contain explicit

authorisation for the inspectorates to impose fines higher than the minimum, which

means that, unless the law changes, legal persons will never have to pay more than

EUR 3 000 in fines for discrimination, while natural persons will not need to pay

more than EUR 250 or EUR 500, depending on the gravity and type of offence. This

indicates that the fines cannot be regarded as effective and dissuasive (Article 17 of

Directive 2000/78/EC; Article 15 of Directive 2000/43/EC).

-With the provisions on the standing of NGOs and the Advocate, which are now

explicitly allowed to represent victims in judicial proceedings and act on their

behalf, a new problem has emerged. Namely, the conditions for representation are

now stricter for judicial cases of discrimination that are dealt with by county courts

than for any other judicial case. According to the Civil Procedure Act, anyone with

legal capacity may represent a party before the county courts, while according to

the Protection Against Discrimination Act, an individual must have passed the state

legal exam (bar exam)to represent a complainant. The conditions are therefore

stricter for cases of discrimination, which makes access to justice more difficult.

This is problematic with regard to Article 13(2) of Directive 2000/43/ECand might

be in violation of the principle of equivalence.

-On a related matter, it is not clear whether the ceiling for compensation, which is

set at EUR 5 000, is in place only for compensation that is claimed solely due to

exposure to discrimination or for compensation in cases of discrimination in

general. The verbatim interpretation supports the former position. If the former is

true, the sanctions could not be considered dissuasive, as this would mean that

compensation in cases of discrimination can never exceed EUR 5 000, even if the

actual damages were much higher. This is problematic with regard to Articles 7(1)

and 15 of Directive 2000/43/EC and 9(1) of Directive 2000/78/EC.

11.2 Other issues of concern

-It is not clear whether the Protection Against Discrimination Act provisions on

remedies that can be claimed before courts in cases of discrimination (termination

of the discrimination, compensation and publication of the judgment in the media)

now apply in addition to the general tort law provisions or whether these provisions

have replaced the general tort law rules.

-There is no national action plan or strategy concerning discrimination. The situation

of the Roma, for which the Government Office for National Minorities is competent,

is often not dealt with as a discrimination issue. Disability issues are entirely left to

the Office for People with Disabilities within the Ministry of Labour, Family and

Social Affairs.

-Hate speech as a form of discrimination is rarely prosecuted.

-There is a lack of equality data, due to a strict interpretation of the Personal Data

Protection Act.