The definition of discrimination

• Author: Chiara Favilli
• Pages: 15-25

15

2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in the main legislation

(as listed in the Introduction) transposing and implementing the two EU anti-discrimination

directives: race and ethnic origin; religion and personal belief; age; disability; sexual

orientation.

2.1.1Definition of the grounds of unlawful discrimination within the directives

The two legislative decrees transposing the directives do not contain any definition of the

grounds of unlawful discrimination.

a)Racial and ethnic origin

No definition is provided elsewhere in national law for either of the two elements of this

ground. It is worth mentioning that, according to Article 43 of the Immigration Decree,

which was inspired mainly by the International Convention on the Elimination of All Forms

of Racial Discrimination (ICERD), discrimination on the ground of national origin is

prohibited and isinterpreted as covering nationality (as in citizenship). In fact,

discrimination against migrants is one of the most common grounds for claims of

discrimination, in particular when it comes to legal distinctions on the access of third-

country nationals to social protection measures and social advantages.16

No definition is given even in the field of equality data collection. For instance, within the

framework of the first survey on discrimination, carried out in 2011-12 by Istat, ethnic

origin was one of the grounds taken into consideration but without giving any definitions

and taking migrants as a proxy.

b)Disability

Regarding disability, a definition is given by Article 3(2) of Law 104/1992 (the Framework

Law on care, social integration and rights of people with disability,17according to which, ‘A

disabled person is anyone who has a physical, mental or sensory impairment, of a stable

or progressive nature, that causes difficulty in learning, establishing relationships or

obtaining employment and is such as to place the person in a situation of social

disadvantage or exclusion’.

Moreover, the guidance on the concept of ‘persons with disabilities’ provided by Article 1

of the UNCRPD, ratified by Italy through Law 18/2009, is nowpart of the Italian legal

order.18Owing to this Convention and in particular to the concept of ‘interaction with

various barriers’, a social model of disability has been formally introduced into national

law. This definition is in line with the CJEU’s judgment in the joined cases of HK Danmark

(Ring and Skouboe Werge)19 but with a wider material scope: in Ring and Skouboe Werge,

as well in the previous Chacón Navascase,20 the definition of disability concerns

‘professional life’, while both the definitions provided by the UNCRPD and Law 104/1992

16 A large number of judgments dealing with discrimination on grounds of nationality have been delivered

thanks to the active role played by members of an association of lawyers specialising in migration – ASGI –

who in some cases take part in proceedings. See the specialised database available at:

http://www.asgi.it/tematica/discriminazioni/.

17 Framework Law on the care, social integration and rights of disabled persons (Legge-quadro per

l'assistenza, l'integrazione sociale e i diritti delle persone handicappate), 5 February 1992, No. 104,

available at: http://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:legge:1992-02-05;104!vig.

18 No judgment has been delivered concerning the so-called ‘social model’ of disability as set out in Article 1 of

the UNCRPD.

19 Judgment of 11 April 2013, HK Danmark, C-335/11 and C-337/11, EU:C:2013:222, paragraph 54.

20 Judgment of 11 July 2006, Chacón Navas, C-13/05,EU:C:2006:456.