The definition of discrimination

• Author: Kogovsek Salamon, Neza
• Pages: 15-31

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2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly pr ohibited in t he Protection Against

Discrimination Act (Article 1): gend er, ethnicity, race or ethnic origin, language, religion

or belief, disability, age, sexual orientation, gender identity or gend er expression, social

standing,33 economic situation, education or any other personal characteristic.

The following grounds of discrimination are explicitly prohibited in the Empl oyment

Relationship Act (Article 6(1)): ethnicity, race or ethnic origin, n ational and social origin,

gender, skin colour, health condition, disability, religion o r belief, age, sexual orientation,

family status, membership of a trade union, financial situation or other personal

characteristic.

The Vocational Rehabilitation and Employment of Persons with Disabil ities Act and the Act

on Equal Opportunities for People with Disabilities prohibit discrimination on the g rounds

of disability.

The Penal Code prohibits discrimination on the grounds of ethnicity, race, colour, religion,

ethnic roots, gender, la nguage, political or other belief, sexual orientat ion, social status,

birth, education, social position or any other characteristic (Article 131(1)). It al so

prohibits incitement to hatred, violence and intolerance based on national, racial,

religious or ethnic affiliation, sex, skin colour, origin, property status, education, social

status, political or other opinion, disability, sexual orientation or any other personal

characteristic (Article 297).

In addition, Article 20 of the Protection of Public Order Act sets out the punishment for

incitement of ethnic, racial, gender, religious or political intolerance or intolerance r elated

to sexual orientation.

2.1.1 Definition of the grounds of unlawful discrimin ation in the directives

a) Racial or ethnic origin

There is no definition in law of ‘racial and ethnic origin’.

Ethnicity: in 2011, Ljubljana High Court issued it s decision on Case No. II Kp 24633/2010

of 13 September 2011, in which it provided guidance on how ‘ethnicity’ (narodnost)

should be understood in the context of prohibition of incitement to racial or ethnic hatred

in the Penal Code. The court stated that all ethnicities enjoy the protection of the law,

regardless of whether they are recognised as national minorities or not. The term

‘ethnicity’ should therefore be interpreted in line with Articles 63 and 14 of the

Constitution, international instruments and recommendations on the Roma which are

binding on Slovenia. In its j udgment, the C ourt referred specifically to the International

Convention on the Elimination of All Forms of Racial Discrimination. Therefore, legal

protection is also accorded to an ethnic group such as the Roma, which does not have

the official status of a nation al minority. The judgment of the High C ourt came following

a first-instance judgment in which the County Court stated that the Roma enjoy the

protection of the Penal Code. In the app eal, the representatives of the accused claime d

that they do not, because they are not a recognised national minority.

There is no similar case law related to race.

33 In terms of how much property and wealth (premoženjsko stanje) an individual has.

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b) Religion and belief

There is no definition in law of ‘religion or belief’.

The Religious Freedom Act34 does not define r eligion but states that religious freedom

encompasses freedom of expression of religious belief, renouncement of its expression

and the freedom of everyone, a lone o r in a group, with others, privately or publicly, to

express their religion at a religious service or class, through practice or religious rituals or

in another way. Religious freedom includes conscientious objection to an obligation

required by law that seriously contradicts an individual’s religious belief, if this does not

impede the rights of other people, in cases d efined by law. A service provider has no

legal ground to refuse serving a same-sex couple on the basis of his/her religious belief

as such conscientious objection is not provided for by law. Conscient ious objection is, for

example, defined in the Medical Practitioners Act35 (for medical workers) and in the

Regulation on the Enforcement of the Conscientious Objection to the Military Servi ce and

of the Civil Alternative Service36 (for military personnel). The military service regulation

states that conscient ious objection can be related to religious, philosophical and

humanitarian reasons.37 Conscientious objection is not further defined in the Medical

Practitioners Act, hence judicial interpretation is required to confirm that conscientious

objection by medical practitioners can be related to philosophical or humanitarian

reasons.

In a case related to political opinion, the Supreme Court articulated that the term

‘religion o r be lief’ d oes not inclu de p olitical opinion. It stated that ‘belief’ should not be

understood as any kind of difference of opinion. For definition, the Court turned to an

official dictionary of Sl ovenian language, according to which ‘belief’ means a belief on

basic and general vi ews on the world, society or a human, in the sense of ‘defending or

rejecting one’s belief’, ‘to be ready to die to one’s belief’ or ‘to be Marxist by belief’.

Hence, belief has to be close to the meaning of a religion, and not to the meaning of an

opinion.38

c) Disability

There is no definition of disability in the Protection Against Discrimination Act. Under the

2010 Act on Equ al Opp ortunities for People with Disabilities39 the definition of a person

with disabilities follows the UN Convention on the Rights of Persons with Disabilities:

persons with disabilities are those who have long -term physical, mental, intellectual or

sensory impairments which, in interaction with va rious barriers, may hinder their full and

effective participation in society on an equ al basis with oth ers. This definition is close to

that set out in Ring and Skouboe Werge. This law therefore applies the meaning of

disability to people who have not been officially recognised as belonging to one of the

categories of disability. There is no limitation in the law on the legal contexts in which

this latter definition could be used. Therefore, it could be used both in the case of

determining the duty of reasonable accommodation and when invoking the Protection

Against Discrimination Act.

34 Religious Freedom Act (Zakon o verski svobodi), 2 February 2007, available at:

www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO4008.

35 Medical Practitioners Act (Zakon o zdravniški službi), 18 November 1999, available at:

http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO1395.

36 Regulation on the Enforcement of the Conscientious Objection to the Military Service and of the Civil

Alternative Service (Uredba o uveljavljanju ugovora vesti vojaški dolžnosti in o izvajanju civilne službe), 27

June 1996, available at: http://www.pisrs.si/Pis.web/pregledPredpisa?id=URED999.

37 Medical Practitioners Act (Zakon o zdravniški službi), 18 November 1999, Article 8(4), available at:

http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO1395.

38 Supreme Court of the Republic of Slovenia, ruling No. I Up 27/2008, 23 June 2008.

39 Act on Equal Opportunities for People with Disabilities (Zakon o izenačevanju možnosti invalidov), 16

November 2010, available at: www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO4342.