PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation The approach to justification under the European Union equal treatment directives is perhaps the most distinct among international and regional instruments: under the directives, direct discrimination cannot be justified.413 Instead, a series of limited exceptions to the anti-discrimination law framework are established, which permit differential treatment only when the criteria set out under the directives are met. These include some narrow, ground-specific, exceptions, established on the basis of age, and religion or belief; and a broader exception covering “genuine occupational requirements”, which may be applied to all grounds listed under the directives (and applies to both direct and indirect discrimination).414 In practice, this approach serves to limit the areas in which (otherwise) directly discriminatory measures may be adopted. In situations in which a policy or measure falls within the scope of an exception under national law, it must still be shown to be necessary and proportionate to its aim.415 (b) Legitimate aim and assessment of proportionality The Human Rights Committee has consistently held that for an aim to be legitimate it must be established “under the Covenant”.416 The Committee on Economic, Social and Cultural Rights has used the same wording,417 while also noting that legitimate aims should be “solely for the purpose of promoting the general welfare in a democratic society”418 and “compatible with the nature of the Covenant rights”.419 Likewise, the Committee on the Elimination of Racial Discrimination has commented that legitimate aims must be assessed “in the light of the objectives and purposes of the Convention”.420 Treaty bodies have not issued further guidance in this area; however, in its practice, the Human Rights Committee has recognized a broad range of policy objectives as legitimate, including, inter alia, the protection of the welfare of minors, the protection of public order and safety, crime prevention, controlling illegal immigration and avoiding overlaps in the allocation of social security benefits.421 A similarly expansive approach has been adopted by the European Court of Human Rights.422 While not dealt with explicitly at the international level, at the domestic level, courts have found an extensive range of policies and practices applied by private entities to constitute legitimate aims, particularly in the context of considering cases of indirect discrimination. Legitimate aims might include, for example, ensuring the profitability of the business, ensuring the effective management of resources or protecting the reputation 54 413 Notably, the definition of indirect discrimination under the directives provides that a “provision, criterion or practice [may be] objectively justified by a legitimate aim [provided that] the means of achieving that aim are appropriate and necessary”. This clause is absent in the definition of direct discrimination. See 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) (b); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, art. 2 (2) (b) (i); 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 (b); 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) (b). 414 For further discussion of justification under the equal treatment directives, see European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Non-Discrimination Law, pp. 91–108; and Chopin and Germaine, A Comparative Approach to Non-Discrimination Law in Europe, 2019, pp. 68–80. The ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) adopts a materially similar approach to justifications and exceptions in the area of employment. Under article 1 (2) of the Convention “any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination”. 415 See, for instance, Court of Justice of the European Union, Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, Case C-414/16, Judgment, 17 April 2018, paras. 66–68. In this respect, commentators have noted that “the justification test on objective grounds under the [European Convention on Human Rights] and the justification test under the exceptions from non-discrimination directives are very similar”. See, for instance, European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Non-Discrimination Law, p. 92. 416 See, for instance, Human Rights Committee, general comment No. 18 (1989), para. 13; Fedotova v. Russian Federation (CCPR/C/106/D/1932/2010), para. 10.6; and Yaker v. France (CCPR/C/123/D/2747/2016), para. 8.14. 417 Committee on Economic, Social and Cultural Rights, López Rodríguez v. Spain (E/C.12/57/D/1/2013), para. 14.1. 418 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 13. See, relatedly, Inter-American Commission on Human Rights, Undocumented Workers v. United States of America, Case 12.834, Report No. 50/16, 30 November 2016, para. 74. 419 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 13. 420 Committee on the Elimination of Racial Discrimination, general recommendation No. 32 (2009), para. 8. 421 However, in the majority of the relevant cases, the differential treatment was not justified. See, illustratively, Human Rights Committee, Fedotova v. Russian Federation (CCPR/C/106/D/1932/2010), para. 10.8; Yaker v. France (CCPR/C/123/D/2747/2016), para. 8.7; Williams Lecraft v. Spain (CCPR/C/96/D/1493/2006), para. 7.2; and Vos v. Netherlands, communication No. 218/1986, para. 12. 422 See, for instance, European Court of Human Rights, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention: Prohibition of Discrimination, pp. 18–19.