PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW DIRECT DISCRIMINATION UNDER EUROPEAN UNION LAW PART TWO – I Direct discrimination is defined under the European Union equal treatment directives as the situation “where one person is treated less favourably than another is, has been or would be treated in a comparable situation [on a prohibited ground]”.232 In Feryn, the Court of Justice of the European Union found that the statement of an employer declaring that it would “not recruit employees of a certain ethnic or racial origin” constituted direct discrimination for the purposes of article 2 (2) (a) of the race equality directive. According to the Court, “direct discrimination is not dependant on the identification of a complainant who claims to have been the victim”.233 In this context, the statements of an employer indicating that they would not employ persons of a certain ethnic origin were discriminatory in themselves.234 Whether there has been a difference in treatment is a question of fact, often evidenced through the use of a comparator – a real or hypothetical person in a similar situation to the claimant who does not have the characteristic at issue.235 However, it may not always be possible to identify a comparator and there is no requirement to identify a comparator in order to establish that discrimination has occurred. (b) Indirect discrimination SUMMARY • Indirect discrimination involves the application of rules that appear neutral but that have disproportionate negative impacts on those who share a particular characteristic. • Anti-discrimination legislation should prohibit indirect discrimination. Indirect discrimination occurs when a provision, criterion or practice has or would have a disproportionate negative impact on persons having a status or a characteristic associated with one or more grounds of discrimination. Indirect discrimination occurs when the application of a rule or practice has or would have a less favourable impact on those who share a particular characteristic. Indirect discrimination involves rules, policies or practices that appear neutral and universal – they apply to everyone equally and they do not reference a particular characteristic – but that have disproportionate impacts on those who share a particular characteristic. Examples would include a job advertisement for firefighters that specifies a height requirement that may affect women disproportionately (who are on average shorter than men) or school uniform rules that prohibit head or face coverings and so would disadvantage observant Jewish or Sikh boys and Orthodox Jewish or Muslim girls, as well as some Roma or other minority girls, respectively. Thus, while direct discrimination involves different, less favourable treatment on the basis of a particular characteristic, indirect discrimination involves identical treatment, but with different and less favourable impacts. There is often confusion about the difference between direct and indirect discrimination. It is important to note that the difference is not one of severity. Both direct and indirect discrimination can have 232 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, art. 2 (2) (a); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 2 (2) (a); Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services, art. 2 (a); and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast), art. 2 (1) (a). 233 Court of Justice of the European Union, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, Case C-54/07, Judgment, 10 July 2008, para. 25. See, relatedly, Committee on the Elimination of Racial Discrimination, Koptova v. Slovak Republic, communication No. 13/1998, para. 8.2, in which the Committee cited its earlier view that Anna Koptova was a “victim” under article 14 (1) of the International Convention on the Elimination of All Forms of Racial Discrimination since she belonged to the group of the population (Roma) directly targeted by discriminatory resolutions enacted by the State. 234 Court of Justice of the European Union, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, Case C-54/07, Judgment, 10 July 2008, para. 34. See, relatedly, Court of Justice of the European Union, Asociaţia Accept v. Consiliul Naţional pentru Combaterea Discriminării, Case C-81/12, Judgment, 25 April 2013; and NH v. Associazione Avvocatura per i diritti LGBTI, Case C-507/18, Judgment, 23 April 2020. 235 See section I.A.2(b) of this part on comparators. 33