The definition of discrimination

• Author: Favilli, Chiara
• Pages: 16-26

16

2THE DEFINITION OF DISCRIMINATION

2.1Grounds of unlawful discrimination explicitly covered

The following grounds of discrimination are explicitly prohibited in national law: race and

ethnic origin; religion and personal belief; age; disability; sexual orientation; sex;

nationality; language; political opinion; personal and social condition.

Protection against discrimination on those grounds is provided for in different pieces of

law:

•Italian Constitution, Article 3: sex, race, language, religion, political opinion,

personal and social conditions;

•Legislative Decree 215/2003: race and ethnic origin;

•Legislative Decree 216/2003: age, disability, religion and belief, sexual orientation;

•Legislative Decree 286/1998, Article 43(1): race, colour, ancestry, national or

ethnic origin, religion or personal belief;

•Law 67/2006: Measures for the judicial protection of persons with disabilities who

are victims of discrimination

•Law 300/1970, Article 15: political opinion, race, religion, language, sex, disability,

age, sexual orientation or personal belief.

2.1.1Definition of the grounds of unlawful discrimination within the directives

The two legislative decrees transposing the directives do not contain any definition of the

grounds of unlawful discrimination.

a)Disability

Regarding disability, a definition is given by Article 3(2) of Law 104/1992 (the Framework

Law on care, social integration and rights of disabled people), according to which, ‘A

disabled person is anyone who has a physical, mental or sensory impairment, of a stable

or progressive nature, that causes difficulty in learning, establishing relationships or

obtaining employment and is such as to place the person in a situation of social

disadvantage or exclusion’.

Moreover, the guidance on the concept of ‘persons with disabilities’ provided by Article 1

of the UNCRPD, ratified by Italy through Law 18/2009, is now part of the Italian legal

order. Owing to this Convention and in particular to the concept of ‘interaction with

various barriers’, a social model of disability has been formally introduced into national

law. This definition is in line with the CJEU’s judgment in the joined cases of HK Danmark

(Ring and Skouboe Werge) but with a wider material scope: in Ring and Skouboe Werge,

as well in the previous Chacón Navascase, the definition of disability concerns

‘professional life’, while both the definitions provided by the UNCRPD and Law 104/1992

apply to any kind of ‘participation in society’.

b)Racial and ethnic origin

No definition is provided elsewhere in national law for either of the two elements of this

ground. It is worth mentioning that, according to Article 43 of the Immigration Decree,

which was inspired mainly by the International Convention on the Elimination of All

Forms of Racial Discrimination (ICERD), discrimination on the ground of national origin is

prohibited and interpreted as covering nationality (as in citizenship). In fact,

discrimination against migrants is one of the most common grounds for claims of

discrimination, in particular when it comes to legal distinctions on the access of third-

country nationals to social protection measures and social advantages.