Why we are working on the concept of vulnerability in the field of non-discrimination law and policies

Since the coming into force of EU anti-discrimination law beyond gender twenty years ago, research and policy discourse have been characterised by the challenge to on the one hand use social categories, like gender, age, ethnic affiliation, etc. in order to identify discrimination and on the other not to stigmatise those who are categorised. The concept of vulnerability addressing certain categories of people as more in need than others but without the scrutiny of anti-discrimination law has not been applied in the EU’s internal sphere. However, when it comes to EU’s external action, including accession procedures to the EU, the concept is used. In this context, vulnerabilities of some categories of persons are addressed and identified as field of action for the implementation of the principle of non-discrimination. In this blog entry I will explain, why we inter alia decided to dedicate our research to the use of the concept of vulnerability and its relationship to the field of non-discrimination.

Katrin Wladasch

The legal framework on (non-)discrimination of the EU as well as at the national level of EU Member States is established around the notion of discrimination and its various forms. A set of EU Directives, namely Directive 2000/43/EC against discrimination on grounds of race and ethnic origin, Directive 2000/78/EC against discrimination at work on grounds of religion or belief, disability, age or sexual orientation, Directive 2006/54/EC on equal treatment for men and women in matters of employment and occupation and Directive 2004/113/EC on equal treatment for men and women in the access to and supply of goods and services in line with Article 21 of the Charta of Fundamental Rights of the European Union obliges Member States to introduce an effective system of protection against discrimination into their legal regimes, including institutional frameworks in this regard.

Whilst this might seem an easy task at first sight, it actually has been quite challenging in most countries of continental Europe. The EU non-discrimination approach originating from the UK common law system has introduced new concepts and specifically also the acknowledgement that persons bearing certain characteristics might be more likely to be discriminated against than others. In contrast to taking a vulnerability perspective that would aim at identifying groups at risk in order to design policies exclusively for them on a very general level, the legal approach to this finding had been to introduce the concept of indirect discrimination.

Indirect discrimination according to the relevant provisions – implemented all over Europe – shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, ethnic affiliation, gender or a particular sexual orientation at a particular disadvantage compared with other persons. According to this approach, concretised by the jurisprudence of the Court of Justice of the European Union as well as of the European Court of Human Rights, measurements and/or structures that (statistically) do affect some groups of people in a different way than others, can be considered as discriminatory and needs to be changed or adapted.

Additionally, the legal framework at the level of the EU and implemented at national level also foresees the possibility to treat someone or a group of persons on the basis of the adherence to a specific group more favourable than another one, acknowledging structural disadvantages and/or underrepresentation. Instruments of positive action in the context of EU law can be defined as proportionate measures undertaken with the purpose of achieving full and effective equality in practice for members of groups that are socially or economically disadvantaged, or otherwise face the consequences of past or present discrimination or disadvantage. The policy approach to take action in favour of disadvantaged groups is accepted as legitimate exception of the principle of non-discrimination as long as the specific measures(s) chosen are appropriate in the light of the disadvantage to be removed, proportionate and temporary. This means that they are not accepted to be continued once the aim of the measures is achieved.

This set-up of legal possibilities described above constitutes a framework that enables political actors to strategically combat discrimination and strive for more equality of opportunities. Instead of an unreflected identification of huge parts of society (like for example women and children as such) considered as vulnerable, the non-discrimination framework however does require a comprehensive analysis of actual barriers and/or structural discrimination patterns for any specific measurements to be considered as legal.

When monitoring the implementation of the non-discrimination principle in the course of accession procedures, the EU’s perspective takes a turn. Whilst still seeking to make sure that the formal legal framework is put in place and the necessary institutional arrangements are being made, the analytical lenses used shift from a focus on factual disadvantage and discrimination towards a vague victims’ centred approach.

Vulnerable groups and measures to improve their situation are prominently addressed in EU enlargement strategies and reports on the progress of candidate countries. Which groups are considered as vulnerable remains ambiguous and unclear, however, and differs throughout the different policies and strategy documents. Vulnerability is not defined as such, but documents include different lists of groups that are considered vulnerable or simply refer to vulnerable groups or persons in vulnerable situations without further explanation.

At the level of the EU, a very comprehensive non-discrimination regime has been developed in the course of the last twenty years. At the same time, and in coherence with this, disability organisations successfully have worked on shifting the focus not on deficiencies but rather on barriers and structural discrimination patterns in order to change society to one that provides for more equality of opportunities for all. So why in the EU’s external affairs including its relation to candidate countries, the concept of vulnerability is applied, is unclear to us and has left us astonished if not worried.

This is also the reason why we decided to do research on the usage of the concept of vulnerability in the field of non-discrimination. We want to find out, why the concept is used at all, what aims its usage is intended to achieve, whether it can be considered as adequate for achieving those aims, and whether the non-discrimination approach would lead to a different outcome.

Literature:

Directives 2000/78/EC of 27 November 2000, establishing a general framework for equal employment treatment, 2000/43/EC of 29 June 2000, implementing the principle of equal treatment between persons irrespective of race or ethnic origin, 2006/54/EC, implementing the principle of equal treatment between men and women in EU labour law and Directive 2010/41/EU on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity.
Archibong, U. et al. (2009): International Perspectives on Positive Measures – A comparative analysis in the European Union, Canada, the United States and South Africa, European Commission
De la Cruz-Ayuso, C. (2016): Human Rights and Vulnerable Groups in the EU’s Policy on the Fight Against Poverty and Social Exclusion. European Yearbook on Human Rights 2016