The definition of discrimination

• Author: Hoffmann, Tania
• Pages: 13-19

13

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 (as

listed in the Introduction) transposing and implementing the two EU anti-discrimination

directives: racial or ethnic origin (actual or supposed), skin colour, sex, sexual orientation,

family situation, age, state of health, disability, customs, political or philosophical opinions,

trade union activities, nationality, religion or belief.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

All the grounds covered by both directives are also covered by both the Law of 28

November 2006 (general discrimination law) and the Law of 29 November 2006 (public

sector law), i.e. religion or belief, disability, age, sexual orientation, race or ethnic origin.

Therefore, outside the scope of criminal law, discrimination bas ed on belief is explicitly

forbidden, for example, in civil or commercial cases, administrative conflicts or in respect

of work relations.

Luxembourg legislation does not provide a definition of the grounds of discrimination

covered by the directives. Thus far, the courts have not defined these concepts.

a) Racial or ethnic origin

National law refers to ‘belonging to a race or an ethnic origin’. These terms are not defined

in Luxembourg law, but as Luxembourg has ratified the ICERD, the definition in the

Convention could be used in disputes.

b) Religion and belief

Religion and belief are not defined.

c) Disability

The term ‘disability’ is not defined in the laws tran sposing the directives. Article 1 of the

Law of 12 September 2003 on disabled workers provides a definition of disability, but it

relates only to the specific purpose of claiming reasonable accommodation. It stipulates

that only persons who have a 30 % disability and have been officially recognised as such

are entitled to claim under the duty to provide reasonable accommodation. If a person is

claiming for protection on the basis of non-discrimination law, the judge should in principle

not apply the restrictive definition in the Law of 12 September 2003. In this case, the

jurisprudence would be compatible with Ring and Skouboe Werge. However, judicial

interpretation is required.

d) Age

Age is not defined by the law.

There is no relevant jurisprudence.

e) Sexual orientation

Sexual orientation is not defined in the law or in the preparatory works. There is on-going

academic discussion on the definition of sexual orientation. The CET uses the definition in

the Yogyakarta principles to define sexual orientation.3

3 See: http://cet.lu/en/faq/.