The definition of discrimination

• Author: Justesen, Pia
• Pages: 14-35

14

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: race, skin colour, religion, political

opinion, belief, sexual orientation, age, disability and national, social or ethnic origin.

2.1.1 Definition of the grounds of unlawful discrimination wi thin the directives

In general, the grounds of discrimination are only vaguely defined and described in

Danish legislation.

a) Racial or ethnic origin

There is no definition of race in the Act on Ethnic Equal Treatment or in the Act on the

Prohibition of Discrimination in the Labour Market etc. implementing the Racial Equality

Directive.

The explanatory notes to the above two acts describe race in the following way: ‘The

term shall be understood in accordance with usual terminology, as specified in national

and international law, as well as case law from the Court of Justice of the European Union

(CJEU) in relation to the Directive. Race is understood as a general belonging to a group

of people being defined on the basis of physical criteria, including colour.’

Anti-discrimination criminal law on hate speech and access to public places was passed in

1971 in order to ratify the International Convention on the Elimination of all Forms of

Racial Discrimination (ICERD), and consequently the definition of ‘racial discrimination’ in

Article 1 of the ICERD is particularly relevant.

On that basis, race must be understood in accordance with international human rights

law as a social construct rather than a biological concept.

Like race, ethnic origin is not defined in the laws implementing the Racial Equality

Directive. The explanatory notes to the Act on Ethnic Equal Treatment and the Act on the

Prohibition of Discrimination in the Labour Market etc. implementing the Racial Equality

Directive describe ethnic origin as follows: ‘The term is generally understood as the

belonging to a group of people, who are defined on the basis of shared history,

traditions, culture or cultural background, language, geographical origin , etc.’26

The only legally recognised ethnic minority in Denmark is the German minority in

Southern Jutland.27

There is limited Danish case law on the meaning of ethnic origin. However, a preliminary

ruling by the CJEU, requested by the Western High Court, illustrates that ethnic origin

cannot be determined on the basis of a single criterion.28 On the contrary, ethnic origin is

based on a number of objective and subjective factors like common nationality, religious

faith, language, cultural and traditional origins and backgrounds. The question for the

CJEU was whether credit institutions were allowed to request different documentation

from loan applicants depending on whether they were born in an EU/EFTA country or not.

The Court determined that the birthplace of a person is only one of several factors

determining the ethnic origin of a person. The Court concluded that it was not direct or

26 Ministry of the Interior, Committee on implementation in Danish law of Directive implementing the principle

of equal treatment between persons irrespective of racial or ethnic origin, Report No. 1455 (2002), p. 264.

27 Regulation No. 24 of 7 June 1955 on the general rights of the German minority (Bekendtgørelse nr. 24 af

7/6/1955 angående det tyske mindretals almindelige rettigheder).

28 Judgment of 6 April 2017, Jyske Finans, C-668/15.

15

indirect discrimination because of ethnic origin to request additional identity information

from a person who was born outside the EU/EFTA. In 2018, based on the CJEU ruling in

Jyske Finans, the Board of Equal Treatment reopened a case from 2014.29 The case also

dealt with a car loan and whether it was legitimate to request additional documentation

from a Danish citizen and loan applicant who was born outside the EU/EFTA. Based on

the CJEU ruling, the Board repealed its previous decision and concluded that the request

for additional identification did not constitute either direct or indirect discrimination due

to ethnic origin.30

b) Religion and belief

The term ‘religion’ is not defined in the laws implementing the Employment Equality

Directive. According to the guidelines for the Act on the Prohibition of Discrimination in

the Labour Market etc. religion is understood as formally approved or recognised

religions.31 A definition may thus be found indirectly through the Danish authorities’

practice of approving ‘religious communities’. The Ministry of Church Affairs may approve

a group of adult citizens (over 18 years) belonging to a particular religion as a religious

community or congregation in accordance with the Marriage Act (Ægteskabsloven).32

A Standing Advisory Committee on religious communities (Det Rådgivende Udvalg vedr.

Trossamfund) is appointed to assess whether the conditions for approval as a religious

community are fulfilled. The criteria for approval follow from the Act on Religious

Communities outside the Danish National Church (Lov om trossamfund udenfor

folkekirken).33 The committee is independent of the ministry and has expertise in

religious sociology, religious history, law and theology.

Since religion in the non-discrimination legislation is therefore understood as formally

approved or recognised religions, there is a theoretical link between the recognition as a

religious community and the possibility to avail oneself of the non-discrimination rules on

the ground of religion. In reality, however, because of the wider discrimination ground of

belief, the establishment of such a link is not required in practice

‘Belief’ is not defined in the legislation but is generally assumed to protect a wider area

than religion.34 Thus, belief includes religions that are not formally recognised. In short,

belief is considered to be a more defined conviction covering something other than

formally recognised religions. Examples of belief are atheism and other philosophical

orientations.

The first decisions by the Board of Equal Treatment to conclude that dismissals were

discriminatory because of religion or belief were issued in 2019. The complainants in both

cases were teachers who, due to their religion or belief, were dismissed from their jobs

because they declined to comply with instructions from their employers. The first

complainant was a Jehovah’s Witness and therefore did not celebrate Christmas.35 The

other complainant was a Seventh Day Adventist and it was a crucial part of his belief not

to work on Saturdays.36 In both cases, the Board made the assessment that there was a

clear correlation betw een the teachers’ religious convictions and their refusal to

29 Board of Equal Treatment, Case No. 2013-6811-61300 of 29 April 2014.

30 Board of Equal Treatment, Decision No. 9559 of 21 June 2018.

31 Vejledning om Lov om Forbud mod Forskelsbehandling på Arbejdsmarkedet m.v., (Guidance on the Act on

the Prohibition of Discrimination in the Labour Market) (1 February 2019), p. 55.

32 Since 28 June 2015 the Ministry of Church Affairs has had the competence to approve religious

communities. See http://www.km.dk/andre-trossamfund/. For selected information in English, see

http://eng.andretrossamfund.dk/.

33 Act No. 1533 of 19 December 2017 about religious communities outside the Danish National Church (Lov

om trossamfund udenfor folkekirken).

34 Guidance on the Act on the Prohibition of Discrimination in the Labour Market (1 February 2019), p. 55.

35 Board of Equal Treatment, Decision No. 9193 of 28 February 2019.

36 Board of Equal Treatment, Decision No. 9192 of 28 February 2019.