The definition of discrimination

• Author: Guomundsdottir, Guorun D.
• Pages: 18-24

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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

(Equality Acts) transposing the two EU anti-discrimination directives: race or ethnic origin,

religion or belief, disability, reduced capacity to work, age, sexual orientation and gender

identity, gender expression and gender characteristics.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

a) Racial or ethnic origin

Like Directive 2000/34, the Act on Equal Treatment irrespective of Race or Ethnic Origin

No. 85/2018 does not contain an explicit definition of race or ethnic origin. However, the

explanatory notes to the draft legislation set out that race refers to historically important

divisions of people into races, based on physical appearance such as skin colour and/or

other aspects often considered characteristic for a particular race. In this context, reference

is made to Recital 6 of the directive, rejecting theories which attempt to determine the

existence of separate human races and stating that the use of the term ‘racial origin’ in

the Racial Equality Act does not imply an acceptance of such theories.

Further, the explanatory notes set out that ethnic origin refers to the common origin of a

group of people, such as a common geographical origin, or a common history, culture or

language, in line with the ruling of the European Court of Human Rights in Timishev v.

Russian Federation, nos. 55762/00 and 55974/00, 13 December 2005 (referred to in the

CJEU judgment of 16 July 2015, CHEZ Razpredelenie Bulgaria, C-83/14, paragraph 46).

b) Religion and belief

The Labour Equality Act does not contain an explicit definition of religion. In the explanatory

notes to the draft bill, reference is made to the definition in Directive 2000/78, and it is

stated that religion covers both the faith and its manifestation in line with the CJEU

judgment of 14 March 2017, Achbita, C-157/15, paragraph 28.

Article 3.7 of the Act defines belief as a belief based on secular life views, certain ethical

values and morality along with a defined system of ethics and epistemology. The

explanatory notes further elaborate that this includes atheism and agnosticism but not

political opinion or opinions on the hierarchy of different races, for instance.

c) Disability

Article 3.8 of the Labour Equality Act, which is based on the guidance provided in the UN

Convention on the Rights of Persons with Disabilities, defines disability as the result of the

interaction of people with impairments with various barriers and views which hinder their

full and effective participation in society on an equal basis with others. The impairments

must be long-term, and the barriers must be of such a nature as to result in discrimination

based on physical, mental, intellectual or sensory impairments.

In addition to disability, the concept of reduced capacity to work is introduced and defined

in the legislation. According to the explanatory notes to the draft bill, the traditional legal

concept of disability is narrower than that in the EU legislation. Thus, a person can have

reduced capacity to work without having a disability under Icelandic law. Article 3.9 defines

reduced capacity to work as a permanent physical, mental or intellectual state, whether

congenital or developed, which impairs the ability of the person concerned to participate

in the labour market. The two definitions together follow that given by the CJEU in HK

Danmark (Ring and Skouboe Werge), in referring to participation in professional life.