The definition of discrimination

• Author: Romanita Iordache
• Pages: 19-35

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in th e main legislation

transposing the two EU anti-discrimination directives in Article 2(1): ‘race, nationality,

ethnic origin, language, religion, social status, beliefs, sex, sexual orientation, age,

handicap, non-contagious chronic disease, HIV-positive status, belonging to a

disadvantaged group or any other criterion.’50 The Romanian Anti-discrimination Law

includes all grounds listed by the directives and goes further than the directives because it

also mentions other grou nds such as ‘social status,’ ‘belonging to a di sadvantaged group’

or ‘any other criterion’. The catch-all phrase ‘any other criterion’, which turns the anti-

discrimination principle into a broad equality principle, has proved to be the m ost

challenging in cases where discrimination was not based on any of the criteria specified in

the law. In practice, most petitions are filed on ‘other grounds’ such as socio-professional

category or other ad hoc categories.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

The Romanian Anti-discrimination Law does not define the content of the protected

grounds. The legislation does not include any d efinition of ethnicity or race, religion, age,

sexual orientation and disability and there have been no attempts to define these concepts

through judicial interpretation.

Article 4 of th e Anti-discrimination Law defines ‘disadvantaged group’ as ‘the category of

persons that is either placed in a position of inequality as opposed to the majority of citizens

due to personal (identity) differen ces or is faced with rejection and marginalisation’. Prior

to the 2006 amendment, the text included as exemplification ‘non -contagious chronic

disease, HIV infection or the status of refugee o r asylum-seeker’ but this exemplifying list

was deleted by the Parliament in 2006, thus leaving interpretation of the meaning of the

concept of ‘disadvantaged group’ to the national equality body (NCCD) or to the courts.

Migrants are not explicitly mentioned, but could be defined as disadvantaged group,

although no such cases have been reported. Currently, ‘disadvantaged group’ is used to

cover all these categories, also covering social status, property or education status, which

might in themselves be defined as protected grounds given that the Romanian list of

grounds is open. The case law of the NCCD suggests that the nat ional equality bod y is

prone to use belonging to a disadvantaged group as an isolated ground, rather than using

it together with other grounds.

a) Racial or ethnic origin

A definition of national minority as an ‘ethnicity which is represented in the Council of

National Minorities’ is included, without further details, in the electoral legislation. 51 When

ratifying the European Charter for Regional or Minority Languages, the Parliament chos e

not to define minority languages but to list them.52 The manual for those carrying out the

50 Government Ordinance 137/2000 regarding the prevention and the punishment of all forms of

discrimination, 30 August 2000, Art. 2(1).

51 Law 35/2008 on the election of the Chamber of Deputies and of the Senate and for the amendment of Law

67/2004 on the election of local public administration authorities, of Law 215/2001 on local public

administration and of Law 393/2004 on the Statute of officials elected in local elections (Lege pentru

alegerea Camerei Deputailor şi a Senatului şi pentru modificarea şi completarea Legii nr. 67/2004 pentru

alegerea autoritilor administraiei publice locale, a Legii administraiei publice locale nr. 215/2001 şi a

Legii nr. 393/2004 privind Statutul aleşilor locali), 13 March 2008, Art. 2 (29). The legislation lists the 19

organisations deemed to be representative of the 19 national minorities in Romania.

52 Law 282/2007 for the ratification of the European Charter of Regional and Minority Languages (Lege

282/2007 pentu ratificarea Cartei europene a limbilor regionale sau minoritare), 6 November 2007. Article 2

of the law lists the following minority languages: Albanian, Armenian, Bulgarian, Czech, Croatian, German,

Greek, Italian, Hebrew, Hungarian, Macedonian, Polish, Romani, Russian, Ruthenian, Serbian, Slovak, Tatar,

Turkish and Ukrainian.

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survey for the 2011 census defined ethnicity as ‘the option (self-determination) of a person

to belong to a human group with common elements of civilization and culture, through one

or more characteristics regarding language, religion, common traditions and customs,

lifestyle and other specific characteristics’.53 None of these elements is further legally

defined or interpreted. In the same guidelines, ‘mother tongue’ is defined as: ‘the first

language used regularly in the family of the person interviewed, during his or her early

childhood.’54

b) Religion and belief

No legal definition of the protected ground of religion is provided in the Anti-discrimination

Law. The 2011 census manual defined religion as ‘th e creed or the religious or spiritual

option, regardless if this is manifested or not through affiliation to a permanent religious

community.’55

c) Disability

Article 2 of Law 448/2006, which is the framework legislation for the protection and

promotion of the rights of persons with disabilities, uses the following legal definition of

disability (which is also used in the context of non-discrimination cases, given the lack of

a different, specific definition):

‘… disabled persons shall be those persons who, due to a physical, mental or

sensorial affection, do not have the abilities for normally performing the day to-day

activities, requiring protection measures in support of t heir social recovery,

integration and inclusion.’56

In a 2012 decision, the NCCD discussed the meanings of the two concepts ‘handicap’ an d

‘disability’ used in Romanian legislation, mentioning its preference for using the term

‘disability in an inclusive manner’ even if the terminology used in both GO 137/2000 and

Law 448/2006 is `handicap` and clarifying that ‘to the extent that an illness is not a non-

contagious chronic disease (meaning a protected criterion), it becomes a disability

depending on the duration, nature or severity of the disease’.57 This approach might be

interpreted as being in line with the definition provided subsequently by the CJEU in joined

cases C-335/11 and C-337/11 Skouboe Werge and Ring.58

The national strateg y ‘A Society without Barriers for Persons with Disabilities 2016-2020’

and the operational plan for the implementation of the strategy adopted on 14 September

2016 include further definitions.59 The strategy introduces the recognition of the social

53 Institutul Naional de Statistic (2011), Recensmântul populaiei i al locuinelor 2011, Instrumentar.

Manual available in Romanian on the website of the 2011 census, in Part 3:

http://www.recensamantromania.ro/instrumentar/. Definition available on page 73.

54 Institutul Naional de Statistic (2011), Recensmântul populaiei i al locuinelor 2011, Instrumentar.

Manual available in Romanian on the website of the 2011 census, in Part 3:

http://www.recensamantromania.ro/instrumentar/. Definition available on page 73.

55 Institutul Naional de Statistic (2011), Recensmântul populaiei i al locuinelor 2011, Instrumentar.

Manual available in Romanian on the website of the 2011 census, in Part 3:

http://www.recensamantromania.ro/instrumentar/. Definition available on page 73.

56 Law 448/2006 on the protection and promotion of the rights of persons with a handicap, 6 December 2006,

Art. 5(4). An unofficial translation of the law is available at:

http://www.equalrightstrust.org/ertdocumentbank/LEGE%20448%20engleza.pdf.

57 National Council for Combating Discrimination (Consiliul Naional pentru Combaterea Discriminrii) (NCCD),

Decision 509, file no. 433/2012, FEDRA v. SC SECOM SRL, 26 November 2012.

58 Court of Justice of the European Union (CJEU), judgment of 11 April 2013, Ring and Skouboe Werge, joined

Cases C-335/11 and C-337/11, EU:C:2013:222.

59 Government Decision 655 for the approval of the national strategy, ‘A Society without Barriers for Persons

with Disabilities 2016-2020’ and the operational plan for the implementation of the strategy (Hotrârea de

Guvern 655 pentru aprobarea Strategiei naionale „O societate fr bariere pentru persoanele cu dizabiliti”

2016-2020 i Planul operaional privind implementarea strategiei naionale O societate fr bariere pentru

persoanele cu dizabiliti” 2016-2020) 14 September 2016, (Monitorul Oficial, 737, 22 September 2016).