The definition of discrimination

• Author: Jakub Tomsej
• Pages: 14-34

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The Anti-Discrimination Act covers the following grounds of discrimination: race, colour,

ethnic origin, nationality (národnost), sex, sexual orientation, age, disability, religion or

belief, EU citizenship.

2.1.1 Definition of the grounds of unlawful discrimination withi n the directives

With the exception of the definition of disability in Section 5(6) of the Anti-Discrimination

Act, there are no definitions in the strict sense of any of the grounds.

However, the grounds of unlawful discrimination are interpreted as follows.

a) Racial and ethnic origin

There is no normative definition of racial or ethnic origin in Czech national law. Czech law

does not clearly distinguish between the terms race and ethnic origin. The widely used

Academic Commentary on the Anti-Discrimination Act distinguishes race and ethnicity in

the following manner: ‘Race refers to physiological signs, whereas ethnicity also involves

social signs such as nationality, language, culture, history or religious tradition.’28

‘Nationality’ constitutes a separate discriminatory ground; nationality, as opposed to ethnic

origin, depends on the free choice of the individual.29 However, in connection with

discrimination towards Roma people, the discrimination based on ethnic origin is used for

reference, although the Constitutional Court employs the terms ethnic or racial

discrimination interchangeably.30 In 2015, the Czech Ombudsman stated that ethnic origin

is the ground of discrimination requiring the strongest protection and that the law considers

it to be particularly unacceptable. Later in the statement, the Ombudsman continues using

both racial and ethnic origin as terms.31

The Constitutional Court considers differentiation based on racial or ethnic origin as

absolutely prohibited, however, it is doubtful whether in practice that ensures the

applicants any specific position before the Constitutional Court.32 For example, in the case

of D. H. and Others, the Constitutional Court did not ascertain indirect discrimination of

Roma pupils in the field of education. In that case, the Constitutional Court declared that

the fact that Roma children represent about 70 % of the pupils in special schools is a fact

demonstrated by the statistics and does not present an individual infringement.33 In 2013,

the Constitutional Court did not find indirect discrimination in a similar case concerning

access of Roma to education. The Constitutional Court differentiated the individual case

from the case of D.H. and Others and declared that individual guarantees for the applicant

were ensured since he was repeatedly examined during his school attendance. 34

28 Boučková, P., Havelková, B., Koldinská, K., Kühn, Z., Kühnová, E., Whelanová, M. (2016), Antidiskriminační

zákon Komentá (Commentary on the Anti-Discrimination Act), Praha, C. H. Beck, p. 44.

29 Boučková, P., Havelková, B., Koldinská, K., Kühn, Z., Kühnová, E., Whelanová, M. (2016), Antidiskriminační

zákon Komentá (Commentary on the Anti-Discrimination Act), Praha, C. H. Beck, p. 59.

30 Constitutional Court, No. I. ÚS 1891/13, 11 August 2015;

http://nalus.usoud.cz/Search/GetText.aspx?sz=1-1891-13_1.

31 Public Defender of Rights (2015), Zpráva o nezjištní diskriminace sp. zn. 788/2015/VOP (Report on

discrimination No. 788/2015/VOP), Brno, Veejný ochránce práv;

http://eso.ochrance.cz/Nalezene/Edit/3302.

32 Boučková, P., Havelková, B., Koldinská, K., Kühn, Z., Kühnová, E., Whelanová, M. (2016), Antidiskriminační

zákon Komentá (Commentary on the Anti-Discrimination Act), Praha, C. H. Beck, p. 49.

33 Constitutional Court, No. I. ÚS 297/99, 20 October 1999;

http://nalus.usoud.cz/Search/ResultDetail.aspx?id=32969&pos=2&cnt=4&typ=result.

34 Constitutional Court, No. III. ÚS 1136/13, 12 August 2015;

http://nalus.usoud.cz/Search/ResultDetail.aspx?id=89444&pos=1&cnt=1&typ=result.

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It emerges from the Academic Commentary on the Anti-Discrimination Act that the

Constitutional Court gives greater attention in its case law to other criteria of differentiation

rather than to racial discrimination, although racial discrimination was classified as a

‘traditionally prohibited discrimination ground´ in its case law.35

Protection against racial discrimination also includes the protection of national minorities.

There is no difference between national and ethnic minorities in the Czech legislation. Act

No. 273/2001 on the rights of members of national minorities only recognises national

minorities, who are:

‘A community of citizens of the Czech Republic who live on the territory of the present

Czech Republic and as a rule differ from other citizens by their common ethnic origin,

language, culture and traditions; they represent a minority of citizens and at the

same time they show their will to be considered a national minority for the purpose

of common efforts to preserve and develop their own identity, language and culture

and at the same time express and preserve interests of their community which has

been formed during history.’36

There are 14 officially recognised national minorities, including Roma, which are

represented in the Government Council for National Minorities.

According to Article 9 of the General Data Protection Regulation, ethnic origin belongs to

the ‘special categories’ of personal data, which can be gathered and processed only under

very strict conditions (e.g. the consent of the person concerned is required for collecting

and processing such data). If any definition were to allow for the identification of the ethnic

origin of an individual without such consent, this would lead to a circumvention of the GDPR

and the local implementing legislation. There is no special definition for the purposes of

the Anti-Discrimination Act. The aims of the anti-discrimination legislation are satisfied by

anonymous data collection.

In practice, incidents of racial discrimination are widely identified by the media and NGOs.

In 2015-2018, the migration crisis and migrants coming from Arabic-speaking countries

were often targeted. The Roma community is also often presented in the media in a

negative context and there have been many incidents where individuals have shown hatred

and racial discrimination against the Roma.

Czech jurisprudence and its interpretation by national courts do not use the concept of

‘disadvantaged group’, nor are specific characteristics linked to such groups acknowledged.

The author is not aware of any court decisions providing comprehensive definitions of racial

or ethnic origin. For the purpose of research carried out in 2012, the Czech Ombudsman

used an approach that considered as Roma those persons (pupils) who were perceived as

Roma by third parties, i.e. equality body employees and teachers.37

Concerning criminal sanctioning of racial discrimination, the Criminal Code specifically

penalises the foundation of and participation in an organisation promoting racial

discrimination or the crime of racially motivated murder.38

35 Boučková, P., Havelková, B., Koldinská, K., Kühn, Z., Kühnová, E., Whelanová, M. (2016), Antidiskriminační

zákon Komentá (Commentary on the Anti-Discrimination Act), Praha, C. H. Beck, p. 49. However, the

commentary does not specify these ‘other criteria’.

36 Act No. 273/2001 on the rights of members of national minorities (Zákon č. 273/2001 Sb, o právech

píslušník národnostních menšin a o zmn nkterých zákon), 10 July 2001, Section 2(1).

37 Public Defender of Rights (2012), Survey of the Public Defender of Rights into the Ethnic Composition of

Pupils of Former Special Schools Final Report (Výzkum etnického složení žák bývalých zvláštních škol),

Brno, Public Defender of Rights;

http://www.ochrance.cz/fileadmin/user_upload/DISKRIMINACE/Vyzkum/Survey_Ethnic_Special-schools.pdf.

38 Act No. 40/2009, Criminal Code (Zákon č. 40/2009 Sb., trestní zákoník), 8 January 2009;

https://portal.gov.cz/app/zakony/zakon.jsp?page=0&nr=40~2F2009&rpp=15#seznam.