The definition of discrimination

• Author: Kádár, András
• Pages: 17-37

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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 the main legislation

(listed in the Introduction, the main legislation transposing and implementing the

directives) transposing the two EU anti-discrimination directives:

Article 8 of the ETA lists the following protected grounds: a) sex, b) racial affiliation, c)

colour of skin, d) national ity (not in the sense of citizenship), e) belonging to a national

minority, f) mother tongue, g) disability, h) health condition, i) religion or belief, j) political

or other opinion, k) family status, l) maternity (pregnancy) or paternity, m) sexual

orientation, n) gender identity, o) age, p) social origin, q) financial status, r) part-time

nature of employment legal relationship or other legal relationship relating to employment,

or fixed period thereof, s) belonging to an interest representation organisation, t) any other

situation, attribute or condition of a person or group.

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

a) Racial or ethnic origin

This term is not defined in national discrimination legislation, and even the terminol ogy

used in the ETA and in other relevant legal norms is very diverse. It is not possible,

therefore, to provide information separately on racial origin and ethnic origin as interpreted

in Hungarian law.

‘Race’ (faj) and ‘colour’ (szín) are mentioned by the Fundamental Law, wherea s the ETA

uses ‘colour of skin’ (brszín), ‘racial affiliation’ (faji hovatartozás), ‘belonging to a national

minority’ (nemzetiséghez való tartozás)35 and ‘nationality’ (nemzetiség) (not in the sense

of citizenship).

There is a statutory definition of only one of these terms: nationality ( nemzetiség, not in

the sense of citizenship), which is set forth in Article 1 of Act CLXXIX of 2011 on the Rights

of Nationalities36 (Act on Nationalities): ‘Und er this law, a nationality is any ethnic group

with a history of at least one century of living in the territory of Hungary, which represents

a numerical minority among the citizens of the state, and is distinguished from the r est of

the population by their own language, culture and traditions, and at the same time

demonstrates a sense of belonging together, wh ich is aimed at the preservation of all

these, and the expression and protection of the interests of their communities, which have

been formed in the course of history.’37 The other relevant terms have no legal definitions.

This uncertainty in relation to t erms is also reflected in case law. In 2012, for instance, in

two identical cases (launched because Roma guests were not allowed to enter the

respective bars), the Equal Treatment Authority established the occurrence of

discrimination on two different bases: in one on the basis of the colour of skin,38 in the

other on the basis of belonging to the Roma national minority.39 (Since 2013, the Equal

35 The literal translation of the expression ‘nemzetiséghez való tartozás’ is ‘belonging to a nationality’ but in

practice it is used to cover those people who belong to a national minority within the meaning of Article 1 of

Act CLXXIX of 2011 on the Rights of Nationalities. The expression ‘nemzetiséghez való tartozás’ is therefore

translated in the text as ‘belonging to a national minority’.

36 Act CLXXIX of 2011 on the Rights of Nationalities (2011. évi CLXXIX. törvény a nemzetiségek jogairól), 19

December 2011, http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?dbnum=1&docid=A1100179.TV.

37 Under Annex 1, the Act on Nationalities itself recognises 13 nationalities. These are Armenian, Bulgarian,

Croatian, German, Greek, Polish, Roma, Romanian, Ruthenian, Serbian, Slovakian, Slovenian, Ukrainian.

38 Equal Treatment Authority, EBH/50/2012, 5 January 2012,

https://www.egyenlobanasmod.hu/hu/jogeset/ebh502012.

39 Equal Treatment Authority EBH/117/2012, 22 May 2012,

https://egyenlobanasmod.hu/hu/jogeset/ebh1172012.

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Treatment Authority has been consistently using the term ‘belonging to a national minority’

in Roma discrimination cases.)

The main reason for the lack of definitions is that, due to the open-ended nature of the list

of protected grounds, there is n o pressing need to provide definitions or interpret the

differences in these terms. For example, the fact that the term national minority is

statutorily defined does not mean that persons affiliated with these 13 minorities are in a

more advantageous position than others from the point of view of the ETA's application: if

a person not belonging to any of the acknowl edged nationalities is discriminated against,

the protection will be based on Article 8 (b) (racial affiliation) or (c) (colour of skin), or

maybe even (t) (oth er characteristic) of the ETA. This blurs the boundaries between the

different concepts and no effort is made to come up with clear distinctions on behalf of

either the bodies applying non-discrimination legislation, or the parties involved in such

legal disputes.

b) Religion and belief

This term is not defined in national discrimination legislation. However, Article 1 of Act

CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of

Churches, Denomin ations and Religious C ommunities40 (Act on Churches) p rovides

protection regarding both the forum internum and the forum externum, when it prescribes

that no one shall be subjected to any disadvantage because of having, accepting,

manifesting, confessing, changing or practising his or her religious belief or conviction.

Religion is not defined by the Act on Churches, but religious activities are (under Article

7/A). In terms of this definition, religious activities are activities linked to a worldview

which is directed towards the transcendental; has a system of faith-based p rinciples, the

teachings of which are directed towards existence as a whole; and embraces th e entire

human personality by requiring a specific code of conduct.

It needs to be added that this definition is provided in th e context of church recognition,

but not in the context of the exercise of the freedom of religion. However, this does not

mean that the definition of religion or belief is expected to be different or broader in the

anti-discrimination legal framework. In this context, it mu st be emphasised again that, as

a result of the open-ended list of protected grounds in the ETA, anyth ing that may not be

regarded as coming under the term religion, can still be dealt with as ‘other characteristic’.

Definitions are therefore not as important an issue in Hungary as they are in legal systems

with a closed list of protected grounds. The issue of what is to be regarded as religion

under the ETA has not come up in the jurisprudence.

c) Disability

This term is not de fined in national discrimination legislation, but some equivalent terms

are used and interpreted elsewher e under national law. For instance, one definition of

disability is to be found in Article 4 of the RPD Act: persons with disabilities are those who

have i rreversible or l ong-term sensory, communication-related, physical, intellectual, or

psychosocial impairments or the accumulation thereof, which in interaction with significant

environmental, societal or other barriers restrict or hinder their full and effective

participation in society on an equal basis with others. (Laws on certain social benefits

contain differing definitions of what constitutes disability for their purp oses.) Due to the

fact that the list of protected grounds is open-ended in the ETA (covering ‘any other

situation, attribute or condition’) no problems of definition have so far arisen in Hungarian

jurisprudence, as any feature not expressly falling under the grounds protected by the

40 Act CCVI of 2011 on the Right to Freedom of Conscience and Religion and the Legal Status of Churches,

Denominations and Religious Communities (2011. évi CCVI. törvény a lelkiismereti és vallásszabadság

jogáról, valamint az egyházak, vallásfelekezetek és vallási közösségek jogállásáról), 31 December 2011,

http://net.jogtar.hu/jr/gen/hjegy_doc.cgi?docid=A1100206.TV.