Litigating Discrimination in Access to Employment in Hungary
Bea Bodrogi and Anita Danka1
In January 2003, a company in Nógrád County, Hungary, advertised job openings at a local paper for female machine operators, packers and storekeepers. At about 8 am on the first working day following the ad, two Romani women, Mariann P. and István T. called the company for an interview. Since no one answered the telephone, they visited the company in person. The security guard stopped the two women at the entrance and asked them whether they had an appointment. When the women told him that they were there to apply for the positions advertised in the paper, the security guard telephoned the company's office, and then told the women that the positions have already been filled. Mariann P. got upset and she told the guard: "Why aren't you telling us the truth? We cannot go in because we are Roma!"
The two women did not leave the place, and, while they were waiting at the entrance, they saw other women entering the building. They left the scene humiliated and went to a local legal defence bureau for Roma and made a complaint. One of the bureau's employees called the company and asked about the job advertisement. After a short conversation, she was told that the company was still accepting applicants. She was subsequently informed of the working conditions, and the salary ranges for the advertised positions. Two other Romani women (Anna S. and Rozália Sz.) visited the legal defence bureau the same morning with similar complaints. They said that they went to the company to apply for the jobs, but only Anna S.'s data were registered. Rozália Sz. was told that the positions were already filled. Unlike Rozália Sz. and the two other women who had made the previous complaint to the defence bureau, Anna S. is not recognisably Romani.
The case of Mariann P. and István T. is presumably not unique in Hungary. Both Romani women had worked in a factory for numerous years. However, following the political transition in Hungary, which resulted in mass dismissals from enterprises, they both lost their jobs. They have subsequently taken every opportunity to find a job.
Challenges to the Application of the Non-discrimination Provisions of the Hungarian Labour Code
Prohibition of discrimination in labour relations and reversal of the burden of proof in discrimination cases were introduced in the Hungarian Labour Code as early as 1992.2 Thanks to the 2001 amendment of the law, the definition of indirect discrimination was introduced as well and the sphere of the law extended to the procedures preceding the establishment of labour relations.3 The legal representative submitted a claim on behalf of Mariann P. and István B. against the company on grounds of discrimination in the establishment of a working relationship under Article 5, sections 1 and 2 of the Labour Code, and asked for non-pecuniary damages.4
The legal representative of the company claimed that the rejection of the two Romani women was simply the result of a misunderstanding. The company submitted that the head of the company arrived to the premises at 8:30 am on the day in question, and following clarification, the company started interviewing applicants. The company's legal representative also argued that, pursuant to Article 174 paragraph (1) of the Labour Code, the plaintiffs were not entitled to apply for compensation given that they were not in an employment relationship with the company. During the first hearing, even the judge was unsure as to whether or not the complaint fell within the labour court's sphere of competence.
However, the judge accepted the plaintiffs' arguments, namely that in accordance with the amendments of the Labour Code, the law clearly provides for the possibility to challenge discrimination which had occurred during an application procedure aimed at employment. The reasoning attached to Article 5 paragraph (3) of the Labour Code provides: "Given that the discrimination of employees, based on their gender, age, etc. mainly occurs prior to the formation of an employment relationship, in order to support uniform application of the law, the new paragraph (3) stipulates that the provisions, which prohibit discrimination shall be applied to procedures preceding formation of an employment relationship." It was also submitted, that pursuant to Article 5, paragraph 7 of the Code, the consequences of discrimination should be remedied.
Reversal of the Burden of Proof
Under Article 5, paragraph 8 of the Labour Code, in cases of disputes relating to the discriminatory nature of an employer's procedure, it was for the employer to prove that it did not violate the prohibition of discrimination. Plaintiffs were only required to propose their presumption that they have been discriminated against during an application procedure and, from this point on – unlike under the general rules of evidence – it was for the employer to prove that the procedure did not constitute discrimination prohibited by the Labour Code.5
The respondent argued that in the early morning hours of the day in question, the only person in the company's premises was a secretary who was unaware of the job advertisement, and this was why she requested the security guard to tell the Romani applicants to leave. According to the secretary's witness statement, the entrance is not visible from the window of her office, therefore she had no way of knowing about the ethnic origin of the applicants. She further claimed that once a senior official of the company had arrived at about 8:30 am, her misunderstanding was clarified, and from then on, all applicants were allowed to enter the building for an interview.
Upon a motion made by the plaintiffs, a local woman was called to make a witness statement before the court. The woman had also applied for one of the advertised positions at the company earlier the same morning as Mariann P. and István T. She was at the entrance between 8 am and 8:15 am, and she was allowed to enter without a problem. When her interview finished, she left the premises and saw the two Romani women by the entrance, and also heard the security guard telling them that no interviews were being held. The fact that the plaintiffs also remember seeing the same woman leaving the premises indicates that her witness statement clearly contradicts the respondent's version of the events.
Other witnesses substantiated that on the day in question, Rozália Sz. and Anna S. had indeed approached the company in order to apply for a job. Some testified, that even though Rozália Sz. was sent home without having been interviewed, later the same day applicants were told over the telephone that interviews were still held for the positions.
The respondent submitted before the court a list with the names of the people who had applied for the advertised positions. The company claimed that, among the seventy names included in the list, the names of all people who applied for a job on the day in question, as well as the names of all others who contacted the company that month in search of employment, could be found. Allegedly, the company registered the names and contact details of everyone who had applied for a job so that, in the event that an opening would be available, they could immediately choose someone from the list. However, this argument raises the question why the company had sent the three plaintiffs home if, on other occasions, people could enter the company's premises and have their data registered even when no job opening was advertised.
The respondent also submitted three written statements in order to support its claim that the company did not discriminate against its employees. The statements highlighted that the witnesses themselves were of Romani origin, that they were employed by the company, and that they had signed the statements by their own will. However, the subject matter of the labour suit was not whether or not Romani employees of the company were discriminated against, but rather, whether the three plaintiffs had been discriminated against during the application procedure. As such, the mere fact that the company did indeed employ Roma did not relieve the company from having to prove that it did not discriminate against the plaintiffs.
The nature of the three aforementioned statements was also questionable, given that under the current laws, people have the freedom to identify as belonging to any minority group, including the Romani minority, and the validity of such statements may not be questioned. The presumption that a factory worker would one day knock on the director's door, stating that he had heard about the unjust court proceedings against the company and was willing to help by writing a statement declaring his/her Romani origin, was doubtful.
Furthermore, the self-identification with one or another minority is irrelevant in view of the definition of discrimination provided by the Hungarian Law on Equal Opportunities, which specifies that „direct discrimination occurs when a real or alleged member of a group, (…) due to his/her real or alleged characteristics receives different treatment that is worse than that of members or groups of people in the same situation."
The Court Decisions
On 9 February 2004, the Labour Court, as a first instance, established a violation of the ban on racial discrimination in the process of establishing employment relationship in the case of the three Romani women. The court awarded a compensation of 150.000 HUF (approximately Euro 600) for each of the Romani women. When calculating the amount of the compensation, the court took the minimum wage for the probation period – which is usually 3 months – as a basis. However, there was no word in the reasoning of the decision about the violation of the human dignity and the humiliation suffered by the victims of discrimination, but only about the financial loss due to the loss of future income. Therefore, the damage the court awarded was pecuniary in nature in spite of the fact that the plaintiffs requested non-pecuniary damages for the discrimination suffered.
The failure of the first instance court to award non-pecuniary damages was challenged before the county court as a second instance. In its decision of 8 June 2004, the county court ruled that due to the humiliation suffered by the victims they were awarded non-pecuniary damages. The second instance court, however, overruled partly the first-instance decision. It declared that the fact that the third plaintiff's (Rozália Sz.'s) name was found in the company's database provided sufficient evidence that the plaintiff did go to the office of the respondent and her data were duly registered. Indeed, the first-instance court established that the company's 2003 database did include Rozália Sz.'s name. It could not be established however when exactly her data were registered. The respondent could not prove that the data was registered in the course of an interview on 20 January 2003 – the date on which Rozália Sz. claimed she was not admitted for an interview by the respondent company. The data could have been recorded earlier, for example as a result of the employment bureau transferring data of people looking for employment opportunities or at the time when Rozália Sz. inquired about job openings herself. Therefore, the lack of proof should be evaluated to the detriment of the respondent. Instead, the second-instance court based its decision only on the claim of the respondent related to the database of the prospective employees. It did not evaluate Rozália Sz.'s statement that before the date at which she claimed the respondent company refused to admit her for an interview, she had been sent to the respondent company by an employment bureau, therefore her data could have been accessible for the respondent earlier. The witness statements supporting Rozália Sz's claim were also ignored together with the fact that in the cases of the other two plaintiffs (Mariann P. and István T.) the second-instance court upheld the first-instance judgment establishing racial discrimination. The county court refused to apply the reversal of the burden of proof principle and asked the plaintiff to provide evidence to support her claims instead.
On 2 September 2004, at a judicial review procedure before the Supreme Court as an extraordinary remedy against the otherwise legally binding second-instance decision, the plaintiffs claimed that failure to apply the reversal of the burden of proof principle under Article 5 paragraph (8) of the Labour Code lead to the unlawful evaluation of the merits of the case by the second-instance court. On 5 September 2005 the Supreme Court annulled the second-instance judgment and ordered retrial in the case of Rozália Sz.
The Court reasoned that under Article 5 paragraph (8) of the Labour Code, in cases of disputes relating to the discriminatory nature of an employer's procedure, it was for the employer to prove that it did not violate the prohibition of discrimination. Therefore the employer has to bear the burden of proof, which means that the employer would be released from responsibility only if they prove that they adhered to the equal treatment obligation.6 The presumption that the plaintiff was discriminated against is not enough, but based on the reversal of the burden of proof principle, it suffices if the party whose rights have been violated proves that he/she has suffered damages then it was for other party to prove that it did not act in a discriminatory way.
Since the courts did not conduct probative proceedings as to the well-founded nature of the discrimination resulting in non-pecuniary damages, it can be inferred that discrimination in itself already substantiates non-pecuniary damages, and only the amount of the damage is subject to probative proceedings.
After this decision, the respondent company offered out-of-court settlement to the plaintiff, which led to the final resolution of the case.
The European Roma Rights Centre submitted an amicus curie brief on the shifting of the burden of proof in discrimination cases. The content of this brief was approximately as follows:
A. What is the Shifting Burden of Proof?
1.The concept of the burden of proof encompasses the court's authority to consider accomplished only those facts, which were proven, and to consider absent those facts, which were not proven, with the legal consequences flowing there from. The general rule for distribution of the burden of proof between the parties is that each party bears the burden of proof concerning the facts that it claims and that it derives favourable legal consequences for itself from.7
2. The shift of the burden of proof in antidiscrimination proceedings is a special rule for distribution of the burden of proof between the parties deviating from the general rule stated above. This special rule requires the court to consider the fact of discrimination accomplished where claimant proves this fact on the balance of probabilities, i.e. wherе claimant causes the court not to be convinced of this fact but merely to infer it, unless respondent rebuts this inference. In order for discrimination to be found, it suffices that claimant establish a probability that discrimination is at hand. Claimant in antidiscrimination proceedings may establish such a probability via inferences – by proving facts that are indications to the court that it may presume that discrimination is at hand. These inferences that the court may draw will be factual, ordinary presumptions based on experiential rules indicating that which is typical of the relationships between phenomena. Where respondent fails to rebut the presumption of discrimination thus established by claimant, the court will find discrimination proven.
3. European Union law explicitly provides for a shift of the burden of proof. The European Union antidiscrimination directives, including the Racial Equality Directive,8 the Framework Directive9 and Directive 2002/73/EC,10 explicitly provide for the prerequisites for a shift in the burden of proof from claimant onto respondent in antidiscrimination proceedings.
4. Article 8 of the Race Equality Directive states that once claimant establishes "facts from which it may be presumed that there has been direct or indirect discrimination", the burden of proof shifts to respondent to prove there has been no breach of the principle of equal treatment. For the burden of proof to shift, claimant is required to establish a prima facie case of discrimination.11 Once the burden of proof shifts, it is for respondent to prove that the difference in treatment does not amount to discrimination.
5. The approach on the shift of the burden of proof provided for by the Equality Directives matches the approach set out in the earlier Burden of Proof Directive,12 and resonates with the jurisprudence of the European Court of Justice, the United Nations Human Rights Committee, the Inter-American Court of Justice,13 and as of recently the European Court of Human Rights in Strasbourg.
B. Why does the shifting burden of proof exist?
6. The shift of the burden of proof from claimant onto respondent once claimant establishes prima facie discrimination is aimed at alleviating claimant's task in seeking legal protection against discrimination. Experience in legal antidiscrimination protection has indicated that, for substantive guarantees of non-discrimination to be effective and real, respondent must share claimant's burden of proof by establishing an objective justification for treating claimant differently. Para. 21 of the Preamble to the Race Equality Directive enunciates the policy objective behind the shift of the burden of proof: "The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought."
7. Very often, it is impossible for claimant to prove discrimination beyond a reasonable doubt because in most cases a victim of discrimination has no access to information needed to prove discrimination. Thus, for instance, an employee has no access to comparative information about decisions made by the employer concerning other employees, or about the reasons for those decisions, making it impossible for her/him to establish before a court that s/he was treated differently than other employees for no reason other her/his race or sex. Therefore, it is more reasonable for the employer to bear the burden to justify an employee's different treatment by proving there were objective reasons for this treatment unrelated to race or sex. It is more reasonable to ask respondent to prove the existence of objective factors, unrelated to discrimination, explaining the different treatment than it is to ask claimant to prove the absence of such factors. If respondent had nondiscriminatory reasons to treat claimant differently, s/he is best placed to prove this by disclosing information that is only available to her/him.14
8. In its recent ruling in the case of Barton v. Investec15 concerning sex discrimination, the U.K. Employment Appeal Tribunal held:
"17. The Courts have always acknowledged that it was rare for an applicant complaining of discrimination to have evidence of overtly discriminatory words or actions, therefore the affirmative evidence of discrimination will normally consist of inferences to be drawn from the primary facts. Having established those inferences, a concept of a shifting burden began to be developed whereby the employer was then called upon to give an explanation so as to negate those inferences. In Khanna -v-Ministry of Defence  ICR 653 the Employment Appeal Tribunal […] dealt with these evidential problems in the following way […]:
"The right course […] [is] for the Industrial Tribunal to take into account the fact that direct evidence of discrimination was seldom going to be available and that, accordingly, in these cases the affirmative evidence of discrimination would normally consist of inferences to be drawn from the primary facts. If the primary facts indicate that there has been discrimination of some kind, the employer is called upon to give an explanation and, failing clear and specific explanation being given by the employer to satisfaction of the Industrial Tribunal, an inference of unlawful discrimination from the primary facts will mean the complaint succeeds […]."
[Further] clarification was […] obtained from the Court of Appeal in the case of King -v- GB China Centre  ICR 516 […]:
"[…] (3) The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. […] a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds. This is not a matter of law but […] "almost common sense". […] At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences, as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case."
9. In a matter involving breach of the International Covenant of Civil and Political Rights, the UN Human Rights Committee held:
"[...] the burden of proof cannot rest alone with the [plaintiff], especially considering that [the plaintiff] and the [defendant] do not always have equal access to the evidence and that frequently the [defendant] alone has access to the relevant information […] Mr. Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author."16
10. Analogous to a certain extent to refutable legal presumptions, the shift of the burden of proof in antidiscrimination cases facilitates proving discrimination by releasing the party claiming discrimination from the burden of proving it beyond a reasonable doubt. The shift, similarly to refutable presumptions, is based on the ordinary, typical relationships between indications of discrimination established by claimant and the fact of discrimination. The evidential burden shifts based on this presumed relationship requiring respondent who is interested in the absence of discrimination to rebut the inference of discrimination drawn from such indications. Similarly to refutable presumptions provided for by legislation for purposes of establishing facts which are not easily proven, such as psychological facts, like awareness, intent, or guilt, the shift of the burden of proof in antidiscrimination cases facilitates proving discrimination as a fact not easily proven by a victim of discrimination. Without such facilitation, a victim of discrimination would be denied an effective remedy against breaches of the principle of equal treatment.
11. Thus, in its ruling in the case of Enderby17 concerning sex discrimination in remuneration, the European Court of Justice held:
"13. It is normally for the person alleging facts in support of a claim to adduce proof of such facts. Thus, in principle, the burden of proving the existence of sex discrimination as to pay lies with the worker who, believing himself to be the victim of such discrimination, brings legal proceedings against his employer with a view to removing the discrimination. 14. However, it is clear from the case-law of the Court that the onus may shift when that is necessary to avoid depriving workers who appear to be the victims of discrimination of any effective means of enforcing the principle of equal pay. […] 18. [...] Workers would be unable to enforce the principle of equal pay before national courts if evidence of a prima facie case of discrimination did not shift to the employer the onus of showing that the pay differential is not in fact discriminatory (see, by analogy, the judgment in Danfoss)."
12. In its recent ruling in the case of Nachova v. Bulgaria,18 the European Court of Human Rights dealt squarely with the issue of the distribution of the burden of proof in discrimination cases under Article 14 of the European Convention on Human Rights ("the Convention").
13. In Nachova, military police shot dead two Romani men, conscripts in the Construction Force of the Bulgarian army, who had escaped from prison and hidden in a relative's house. The applicants alleged that prejudice and hostile attitudes towards people of Roma origin played a decisive role in the events leading up to the deaths and in the fact that no meaningful investigation was carried out, relying on Article 14 in conjunction with Article 2.
14. The Court ruled in favour of the applicants, taking into account evidence of widespread violence against Roma by law enforcement officials in Bulgaria. It held that the burden of proof in antidiscrimination cases under Article 14 of the Convention is to be shifted onto respondent, stating that this approach is consistent with the legislation and case-law of the European Union. The Court held:
"168. In addition, it has become an established view in Europe that effective implementation of the prohibition of discrimination requires the use of specific measures that take into account the difficulties involved in proving discrimination (see paragraphs 74-76 above concerning antidiscrimination legislation, including evidentiary rules tailored to deal with the specific difficulties inherent in proving discrimination). […]
169. In the light of the above, the Court considers that in cases where the authorities have not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and have disregarded evidence of possible discrimination, it may, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government, as it has previously done in situations involving evidential difficulties. […]
171. In these circumstances, the Court considers that the burden of proof shifts to the respondent Government, which must satisfy the Court, on the basis of additional evidence or a convincing explanation of the facts, that the events complained of were not shaped by any prohibited discriminatory attitude on the part of State agents."
C. When does the burden of proof shift?
15. The burden of proof shifts to respondent once claimant has established a prima facie case of discrimination, i.e. once claimant proves facts from which the court may presume discrimination.19
16. When a prima facie case is established, will depend on the particular facts of the case. The possibility to infer discrimination is a factual issue to be decided by the court in each particular case on the basis of the entire evidence gathered. The court makes this decision while deciding the case when all the evidence has been gathered. Where the court finds that discrimination may be presumed from the evidence adduced by claimant, it will presume it. Then, the burden will shift to respondent, meaning that the court will consider whether the evidence adduced by respondent suffices to rebut the presumption of discrimination thus drawn.
17. In its ruling in the case of Brunnhofer20 concerning inequality in pay, the European Court of Justice gave guidance on the scope of claimant's burden to prove prima facie discrimination:
"57. […] It is therefore for the plaintiff […] to establish before the national court that the conditions giving rise to a presumption that there is unequal pay […] are fulfilled. 58. It is accordingly for the plaintiff to prove by any form of allowable evidence that the pay she receives […] is less than that of her chosen comparator, and that she does the same work or work of equal value, comparable to that performed by him, so that prima facie she is the victim of discrimination which can only be explained by the difference in sex. […]"
18. Accordingly, in order to establish prima facie discrimination and to shift the burden of proof to respondent, claimant has to prove 1) a difference in treatment between her/himself and a comparator (difference in pay), and 2) being in a comparable situation with the comparator (same work or work of equal value).
19. As a further illustration of what constitutes prima facie discrimination, in the case of Enderby,21 the European Court of Justice said:
"16. […] if the pay of speech therapists is significantly lower than that of pharmacists and if the former are almost exclusively women while the latter are predominantly men, there is a prima facie case of sex discrimination, at least where the two jobs in question are of equal value and the statistics describing that situation are valid. […]"
20. Further, in the case of Barton v. Investec22 the U.K Employment Appeal tribunal defined claimant's burden to prove prima facie discrimination in the following manner:23
"25. […] it is for the Applicant who complains of sex discrimination to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondents have committed an act of discrimination against the Applicant […]. If the Applicant does not prove such facts he or she will fail. […] (3) It is important to bear in mind in deciding whether the Applicant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that "he or she would not have fitted in". (4) In deciding whether the Applicant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. (5) It is important to note the word is "could". At this stage the Tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a Tribunal is looking at the primary facts proved by the Applicant to see what inferences of secondary fact could be drawn from them."
21. The appraisal whether there are grounds to shift of the burden of proof, i.e. whether claimant has adduced evidence from which discrimination may be inferred, is for the court hearing the particular case to make. In the case of Royal Copenhagen24 the European Court of Justice held:
"27. It is for the national court to ascertain whether […] the conditions for shifting of the burden of proof are satisfied […]."
D. What happens once the burden of proof shifts?
22. Once the burden of proof shifts, it follows for the court to ascertain whether the evidence adduced by respondent is adequate to rebut the factual presumption of discrimination drawn from the evidence adduced by claimant. If it does not, the court is to consider discrimination proven. Thus, for discrimination to be found, claimant is not required to prove it beyond a reasonable doubt. If respondent fails to rebut the inference of discrimination, the claim will succeed on the balance of probabilities.
23. In the case of Brunnhofer,25 the European Court of Justice defined the scope of respondent's burden to rebut prima facie discrimination in the following manner:
"60. If the plaintiff […] adduced evidence to show that the criteria for establishing the existence of a difference in pay between a man and a woman and for identifying comparable work are satisfied, a prima facie case of discrimination would exist and it would then be for the employer to prove that there was no breach of the principle of equal pay. 61. To [prove that there was no breach of the principle of equal pay] the employer could deny that the conditions for the application of the principle were met, by establishing by any legal means inter alia that the activities actually performed by the two employees were not in fact comparable. 62. The employer could also justify the difference in pay by objective factors unrelated to any discrimination based on sex, by proving that there was a difference, unrelated to sex, to explain the payment of a higher monthly supplement to the chosen comparator. […] 67. Furthermore, the grounds put forward by the employer to explain the inequality must correspond to a real need of the undertaking, be appropriate to achieving the objective pursued and necessary to that end (Case 170/84 Bilka  ECR 1607, paragraph 36.)"
24. Thus, to rebut prima facie discrimination, respondent may assert 1) that there are no grounds to shift the burden of proof, i.e. that claimant failed to establish a prima facie case, and 2), that there is no discrimination because there were nondiscriminatory reasons for the difference in treatment, justifying that difference. Respondent would have to prove the existence of such nondiscriminatory reasons. To justify a difference of treatment, such reasons would have to be linked to a real objective, and be appropriate and necessary to achieve that objective. Reasons must be proportionate, not exceeding what is necessary in order to achieve the objective, and must not be related to any discrimination on grounds of race or sex, or other protected characteristics.
25. In Brunnhofer, the European Court of Justice said:
"68. […] the employer may validly explain the difference in pay […] by circumstances […] insofar as they constitute objectively justified reasons unrelated to any discrimination based on sex and in conformity with the principle of proportionality."
26. In Enderby, the European Court of Justice confirmed the burden on respondent to prove any nondiscriminatory reasons for the difference in treatment:
"18. Where there is a prima facie case of discrimination, it is for the employer to show that there are objective reasons for the difference in pay. 19. […] where significant statistics disclose an appreciable difference in pay between two jobs of equal value, one of which is carried out almost exclusively by women and the other predominantly by men, Article 119 of the Treaty requires the employer to show that that difference is based on objectively justified factors unrelated to any discrimination on grounds of sex. […]"
27. In Barton, the U.K. Employment Appeal Tribunal gave further clarification on respondent's burden of proof in antidiscrimination proceedings:
"(8) Where the applicant has proved facts from which inferences could be drawn that the Respondents have treated the Applicant less favourably on the grounds of sex, then the burden of proof moves to the respondent.
(9) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed that act.
(10) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since "no discrimination whatsoever" is compatible with the Burden of Proof Directive.
(11) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not any part of the reasons for the treatment in question.
(12) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice."
28. In its recent ruling in Porter-v-Lamvale,26 the U. K. Employment Tribunal applied the Barton guidance on the distribution of the onus in the following manner:
"3.1. […] The burden of proof initially rests on the Applicant to prove matters from which the Tribunal may infer sex discrimination. If she does so, the Tribunal will infer that there was unlawful sex discrimination, unless the Respondent proves that the dismissal occurred for some reason not related to the grounds of sex […]."
29. Accordingly, if the court can infer discrimination from claimant's evidence, it will do so, unless respondent rebuts that inference. In Porter, the tribunal "conclude[d] by inference" that claimant's dismissal was on grounds of sex.27
30. The appraisal whether the reasons put forth by respondent to explain the difference in treatment suffice to justify that difference is for the court in the particular case to make. In Enderby, the European Court of Justice said:
"25. The Court has consistently held that it is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker's sex but in fact affects more women than men may be regarded as objectively justified economic grounds (Case 170/ 84 Bilka-Kaufhaus, at paragraph 36 and Case C-184/89 Nimz, at paragraph 14). […]"
31. The ERRC is mindful of the fact that a special seriousness attaches to a claim of discrimination and that the applicable standard of proof must reflect the seriousness of the charge yet still allow for "establishing the truth of the allegations in a convincing manner."28 An approach is needed which would strike a fair balance between protecting the fundamental right involved and the avoidance of unrealistic burdens of proof on either claimant or respondent.29
32. In brief, when assessing the entirety of the evidence before them,30 adjudicators have turned their minds to the following questions:31
a.Has claimant established a prima facie case of difference in treatment on the basis of a prohibited ground? If not, the case fails. If so, then,
b. Has respondent established an objective justification for this difference in treatment (such as the pursuit of a legitimate aim and the institution of measures proportionate to this pursuit)?
33. The shifting burden of proof standard is the result of over twenty years of progressive improvements and the liberalization that has evolved since the first EU gender directives in the mid-1970's.32 It seeks to strike a balance by enabling courts to summon all relevant evidence from both parties before making a finding on discrimination.
34. The shifting burden of proof is a tool that assists the plaintiff in making a claim sufficient to trigger the defendant's obligation to defend its actions. Consequently, it obliges both parties to put their best case forward for the consideration of the court.
- Bea Bodrogi is the Director of the Budapest-based Legal Defense Bureau of National and Ethnic Minorities. Anita Danka is a Staff Attorney of the European Roma Rights Centre.
- Act of 1992:XXII.
- This was an extremely important step as previous regulations did not make it possible to sanction the most common form of discrimination, i.e. in cases when a person is not employed due to his/her ethnic affiliation. As no working relations were established in these cases, the system of sanctions of the Labour Code did not apply.
- Bea Bodrogi, in the capacity of a licensed attorney, represented the plaintiffs within the ERRC/NEKI joint litigation project.
- In the new law on equal treatment (Act CXXV of 2003 on Equal Treatment and Promotion of Equal Opportunities) the issues of giving proof are regulated in compliance with the EU Race Equality Directive (2000/43/EC). The party whose rights have been violated has to prove that he/she has suffered damages and that at the time of this violation he/she really was or the violator presumed that he/she was characterised by one of the prohibited grounds (racial affiliation, skin colour, etc). Only after this can the burden of proof be reversed according to the law. From this point on it is the other party’s task to prove that he has met or, depending on the respective legal provisions, was not obliged to meet the requirements of equal treatment. The new equal treatment law lays down the prohibition of discrimination for the whole legal system in general, sets down basic definitions, gives specific regulations for certain areas (employment, social security and healthcare, housing, education and training, the trading of goods and services), and names the procedures that can be initiated upon violation of the equal opportunity principle.
- BH 2004.255, earlier decision of the Supreme Court.
- On the concept of the burden of proof and the general rules on its distribution, see Stalev, Zhivko, “Bulgarian Civil Procedure Law,” Sixth completed and revised edition, CIELA, Sofia 2000 (Сталев, Ж., “Българско гражданско процесуално право,” Шесто допълнено и преработено издание, СИЕЛА, София 2000), p. 265-266.
- Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.
- Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation  OJ L303/16.
- Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.
- See also paragraph 21 of the Preamble to the Race Equality Directive, which uses the prima facie language.
- Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (Official Journal L 014, 20/01/1998 P. 0006-0008).
- See Velasquez Rodriguez, Inter-Am Ct. H.R., Judgment of July 29, 1988 where the court adopted an intermediate standard of proof, one that “established the truth . . . in a convincing manner.”
- Ibid. Mukong. See also Imelda Higgins, “Enforcement and the New Equality Directives” in Equality in Diversity: The New Equality Directives, ed. C. Costello & E. Barry (Irish Center for European Law, 2003).
- Barton v. Investec Henderson Crosthwaite Securities Ltd., U.K. Employment Appeal Tribunal Decision No. EAT/18/03/MAA, judgment оf 3 April 2003, available at http://www.employmentappeals.gov.uk/judge_fr.htm. Claimant alleged she was discriminated against with respect to remuneration, comparing herself to a junior colleague whose salary and bonus appreciably exceeded hers. The court ruled in her favour, finding that respondent failed to rebut the inference of discrimination drawn by the court from the facts established by claimant.
- Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994). See also Bleir v. Uruguay, Doc. A/37/40, p. 130 (1982) (state held liable where petitioner’s testimony of ill treatment was supported by other eyewitnesses and further clarification depended on information in state’s hands which was not produced); Santullo (Valcada) v. Uruguay, Doc. A/35/40, p.107 (1980) (state produced no evidence that allegations of ill treatment had been investigated; general denial not enough).
- Case C-127/92, available at http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61992J0127&model=guichett.
- Nachova et al. v Bulgaria, Nos. 43577/98 and 43579/98, judgment оf 26 February 2004, available at http://hudoc.echr.coe.int/Hudoc1doc2/HEJUD/200402/nachova%20et%20al%20-%2043577jv.chb1%2026022004e.doc.
- Paragraph 21 of the Preamble to, and Article 8 of the EU Race Equality Directive.
- Case C-381/99, judgment оf 26.06.2001. Available at: http://europa.eu.int/servlet/portail/CuriaServlet?curiaLink=%26lang%3DEN%26ident%3D79989373C19990381%26model%3Ddoc_curia.
- See above, footnote 16.
- See above, footnote 14.
- The U.K. Sex Discrimination Act, Section 63А, provides: “[…] (2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent -(a) has committed an act of discrimination against the complainant which is unlawful by virtue of part 2, … the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”
- Case C-400/93, judgment оf 31.05.1995, available at: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=61993J0400&model=guichett.
- See above, footnote 19.
- Porter-v-Lamvale Construction Ltd. U.K. Employment Tribunal Case No. 1102717/2003, judgment of 4 March 2004.
- Ibid., at paragraph 6.2.
- See Velasquez Rodriguez Case, supra, para. 129.
- See Nachova at para. 166.
- Consider the European Court of Human Rights writing in Nachova at para. 166: “It has been the Court‘s practice to allow flexibility, taking into consideration the nature of the substantive right at stake and any evidentiary difficulties involved. It has resisted suggestions to establish rigid evidentiary rules and has adhered to the principle of free assessment of all evidence.” (Emphasis added.)
- See Case 70/84 Bilka-Kaufhaus GmbH  ERC 1607; Case 171/89 Rinner Kuhn v. FWW Spezial Gebaudereinigung GmbH  ECR 2743; and Case 109/88, Danfoss,  ECR 3220, para. 12.
- Beginning with Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. (Official Journal L39, 14/2/1976 p. 40)