The definition of discrimination

AuthorFavilli, Chiara
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
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.

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