The definition of discrimination

• Author: Lorenzo Cachón
• Pages: 15-30

15

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

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

transposing the two EU anti-discrimination directives (as listed in the Introduction):

− racial or ethnic origin;

− religion or belief;

− disability;

− age;

− sexual orientation.

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

a) Racial or ethnic origin

National law on discrimination (in particular , the Workers’ Statute and the C riminal Code)

does not define the terms ‘racial origin’ or ‘ethnic origin’.

Neither of the two decisions of the Constitutional Court (STC 13/200129 and STC 69/2007)30

which have addressed the issue of racial or ethnic origin provides a definition of ‘racial

origin’ or ‘ethnic origin’. The court refers to ‘Romani ethnic origin’ (étnia gitana) but without

defining traits that might characterise it.

b) Religion and belief

Religion is not defined in Spanish legislation. There is, however, a negative definition of

religion. In other words, legislators have specified only what religion is not, not what it is.

Article 3(2) of the Organic Law on Religious Freedom31 states that ‘activities, intentions

and entities relating to or engaging in the study of and experimentation on psychic or

parapsychological phenomena or the dissemination of humanistic or spiritual values or

other similar non-religious aims do not qualify for the protection prov ided in this Act’.

The Directorate General for Religious Affairs, under the authority of the Ministry of Justice,

used a definition of ‘religious organisation’: in order for a group or organisation to be

properly described as religious, the following prerequisites must be met: (1) belief in the

existence of a higher being, transcendent or otherwise, with whom communication is

possible; (2) belief in a body of doctrine (dogma) and rules of behaviour (moral rules),

somehow derived from this higher being; (3) ritual practice, whether individual or collective

(worship), constituting the adherents’ institutional means of communication with the

higher being.

Consequently, for a long time the practice of the Directorate was to refuse to register

religious denominations on the Register of Religious Entities on the ground of these

denominations’ lack of religious aims. Ba sed on this criterion, the Directorate denied the

registration of the Unification Church (Iglesia de la Unificación) in the register of religious

organisations, because the Unification Church lacked a true religious nature, and was

beyond the scope of protection under the Law on Religious Freedom (accordin g to Article

3(2)). The Unification Church challenged the resolution of the Di rector-General for

Religious Affairs of 22 December 1992 and the judgments of the National High Court

29 Constitutional Court Decision 13/2001, 29 January 2001,

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4309.

30 Constitutional Court Decision 69/2007, 16 April 2007,

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/6036.

31 Organic Law 7/1980, Organic Law on Religious Freedom (Ley Orgánica de Libertad religiosa) (BOE, 6 July

1980), http://www.boe.es/boe/dias/1980/07/24/pdfs/A16804-16805.pdf.

16

(Audiencia Nacional) (30 September 1992) and of the Supreme Court (14 June 1996),

refusing to include this church in the register.

However, the situation has changed since Constitutional Court Decision 46/2001.32 The

Court asserted that the administrative resolution violated the right to collective religious

freedom because the state, in the activity of registration, can only check that th e entity is

not excluded by Article 3(2) of the Organic Law on Religious Freedom. Following this

Decision, the Government cannot judge the religious character of entities wishing to join

the register, and must confine itself to verifying that, in view of their statutes, goals and

aims, these entities are not excluded by Article 3(2).

Article 3(2) of the Law on Religious Freedom allows ‘sects’ to be excluded from the Register

of Religious Associations. Registration on the register is voluntary for religious

organisations, but it gives them a religious legal personality, which gives their places of

worship the right of inviolability and provides some tax benefits. Religious freedom is

protected regardless of whether a religious organisation is inscribed on the register. There

is no special legislation or specific register for sects.

c) Disability

In Article 4, the General Law on the Rights of Pers ons with Disabilities and their Social

Inclusion (RLD 1/2013), which pr ohibits disability discrimination, provides that they ‘Are

persons with disabilities who have physical, mental, intellectual or sensory impairments

which, in interaction with various barriers, may hinder their full and effective participation

in society on an equal basis with others (Article 4(1)) ... For the purposes of this law,

persons with a disability shall be deemed to be those with a recognised degree of

impairment equal to or greater than 33 %’. In any event, those (under the general system)

with a recognised entitlement to social security pensions for permanent disability rated as

total, abs olute or s evere ‘shall be deemed to be affected b y an impa irment equal to or

greater than 33 % … with a recognised entitlement to a r etirement pension or a pension

for retirement due to permanent incapacity’ (Article 4(2)). This provision affects the

existing material scope of the law on the social integration of disabled persons and covers

social benefits, social security, education, work and housing, and access t o goods and

services.

This definition has two parts, with very diff erent orientations and implications. The first

part (Article 4(1)), inspired by the CRPD, is based on the social model of disability and is

coherent with the concept of ‘disability’ established by the Court of Justice of the European

Union in joined cases C-335/11 and C-337/11.33 The second part (Article 4(2)) retains the

medical perspective of disability and has an administrative utility: individuals need to have

this degree of impairment in order to claim som e rights. It could be said that the need to

establish a degree of impairment (of 33 % or greater) is potentially in breach of Directive

2000/78, as the directive does not specify that certain degrees of impairment must be

established for a person to be recognised as having a disability (see CJEU joined cases C-

335/11 and C-337/11).

The jurisprudence, which was well established in Spain, did not accept that an incapacity

for work could be considered as a disability (and, therefore, dismissal could not be

considered null because it did not amount to discrimination by disability). For that reason,

a Spanish judge decided to submit a preliminary ruling before the CJEU. Among other

questions, the judge raised th e interpr etation of the concept of disability in Directive

32 Constitutional Court Decision 46/2001, 15 February 2001,

http://hj.tribunalconstitucional.es/HJ/es/Resolucion/Show/4342.

33 Judgment of 6 December 2012, joined cases of HK Denmark (Ring), C-335/11 HK, and HK Denmark

(Skouboe Werge), C-337/11, http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX%3A62011CA0335.