The definition of discrimination

• Author: Lopes, Dulce; Vicente, Joana
• Pages: 19-32

19

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:

Ancestry, gender, race, language, place of origin, religion, political or ideological

convictions, education, economic situation, social condition or sexual orientation (Article

13 of the Constitution). The Labour Code adds age, gender identity, civil status, family

situation, genetic heritage, reduced capacity to work, disability or chronic disease,

nationality, ethnic origin, or membership of a trade union (Article 24(1)).

Article 2(1) of Law 83/2019 (Basic Law on Housing) establishes the right to housing

regardless of ancestry or ethnic origin, sex, language, territory of origin, nationality,

religion, belief, political or ideological convictions, education, economic situation, gender,

sexual orientation, age, disability or health conditions.

The Criminal Code imposes a penal sanction of imprisonment from six months to five years

on anyone who, in a public meeting, in writing intended for dissemination or by any other

means of social communication, provokes acts of violence against an individual or a group

of individuals on the grounds of their race, colour, ethnic origin or nationality, religion,

gender or sexual orientation with the intention of inciting or encouraging discrimination

(Article 240(2)).

2.1.1 Definition of the grounds of unlawful discrimination within the directives

National law provides definitions for some grounds of discrimination.

a) Racial or ethnic origin

There is no legal definition for the notion of ‘race’. However, Article 4 of Law 93/2017 sets

out a large number of discriminatory practices that are forbidden.

The definition of ‘ethnic origin’ is not provided for the legislation. However, the same

provisions that refer to ‘race’ or ‘racial origin’ also mention ethnic origin.

In addition to ethnic origin or race, these provisions include nationality, place of origin and

language as suspect classifications, because they are covered in Article 13 of the

Portuguese Constitution.

However, in the author’s view, the Portuguese courts would, if such a case was brought to

court, decide in accordance with the definition of ‘ethnicity’ provided by the Court of Justice

of the European Union (CJEU) in its CHEZ judgment (C-83/14, paragraph 46).

b) Religion and belief

The term ‘religion' is also not defined in national law. However, according to Law 16/2001

(Law on Religious Freedom), ‘religious purposes’ are defined as the purposes of the

‘exercise of worship or rites, religious assistance, training of ministers of religion,

missionary work and dissemination of the professed denomination and religious education’

(Article 21(1)(a)).

Although there is no case law on this issue, in the opinion of the author, the definition of

religion provided by the CJEU in Achbita (C-157/15, paragraph 28) must be observed by

Portuguese courts where it coincides with the definition followed by the European Court of

Human Rights.