The definition of discrimination

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

16

2 THE DEFINITION OF DISCRIMINATION

2.1 Grounds of unlawful discrimination explicitly covered

The following g rounds of discriminati on 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 condi tion.

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

law:

• Italian Constitu tion, 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 ori entation;

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

ethnic origin, religion or personal belief;

• Law 67/20 06: Measu res for the judicial protection of p ersons with disabilities who

are victims of discrimination

• Law 300/1970, Arti cle 15: poli tical opinion, race, religion, language, sex, disability,

age, sexual orientation or personal belief.

2.1.1 Definition of the grounds of unlawful discrimination within the directives

The two legislative decrees t ransposing the directives do not contain an y definition of the

grounds of unlawful discrimination.

a) Disability

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

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

disabled person is anyone who has a physical, mental or sensory impai rment, of a stabl e

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

obtaining employment and is such as to place the pe rson in a situati on of social

disadvantage or exclusion’.

Moreover, the gu idance 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 li ne with the CJEU’s judgmen t in the joined cases o f HK Danmark

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

as well in the previous Chacón Navas case, the definition of disability concerns

‘professional life’, while b oth 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 eith er of the two elements of this

ground. It is worth mentioning that, according to Article 43 of th e Immi gration Decree,

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

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

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

discrimination against migrants i s one of the most common g rounds 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.