Leg. Dev.: Burden of Proof in Cases of Sex Discrimination

5 Colum. J. Eur. L. 153 (1998)

Denise A. Julien.

On December 5, 1997, the Council adopted Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex. The Directive will be implemented under the Social Protocol [Agreement on social policy annexed to Protocol 14 on social policy, annexed to the Treaty establishing the European Community] which is not binding on the United Kingdom until the Amsterdam Treaty has been implemented. In civil litigation involving sexual discrimination charges, once the plaintiff has established facts from which it may be presumed that there has been discrimination based on sex, the Directive shifts the burden of proof from the plaintiff to the defendant.

Despite various laws addressing equal rights of the sexes, discrimination based on sex has persisted in Europe without the availability of effective redress to the victims.

The EU Treaty [sic] (Article 119) and six EU directives set a clear legal basis for equal pay and equal treatment between men and women, reinforcedby a considerable volume of case law in the European Court of Justice. “Yet in spite of this one quarter of women continue to suffer discrimination,both in the workplace and in the society as a whole.” One of the main difficulties is actually proving discrimination has taken place.

Since 1988, various suggestions for legislation on the burden of proof in cases of sex discrimination have been proposed within the European Community. After years of debate, the Council failed to obtain the unanimity required under Articles 100 and 235 of the EC Treaty largely because of the refusal of Great Britain under a conservative government to vote in favor of the proposal. However, in 1996, the Commission proposed the present Directive which would be implemented under the Social Protocol.

The legislation as adopted by the Council recognizes three important principles. First, it defines the concept of equal treatment and recognizes the need to improve administrative procedures that would enable the enforcement of that principle. Equal treatment, which includes equal access to employment, equal remuneration, and equal working conditions, has not yet been fully applied to women. Since it has been difficult for women to seek redress for their claims of inequality within the Member States, the Directive serves to facilitate the fair adjudication of sex discrimination claims.

Second, it emphasizes the importance of shifting the burden of proof from the plaintiff to the defendant when evidence of discrimination can be presumed from facts established by the plaintiff (Article 4). Currently, the burden of proving discrimination falls on the plaintiff throughout the entire process in many Member States despite the holding of the Court of Justice of the European Communities. In underlining the importance of shifting the burden of proof, the Directive incorporates reference to that holding.

Whereas the Court of Justice of the European Communities has therefore held that the rules on the burden of proof must be adapted when there is a prima facie case of discrimination and that, for the principle of equal treatment to be applied effectively, the burden of proof must shift back tothe respondent when evidence of such discrimination is brought (Recital 18).

Third, the Directive expands the scope of equal treatment by recognizing and defining indirect discrimination.

[I]ndirect discrimination shall exist where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion ofthe members of one sex unless that provision, criterion or practice is appropriate and necessary and can be justified by objective factors unrelatedto sex (Article 2).

Indirect discrimination is perhaps the most prevalent and dangerous form of discrimination in contemporary society because it is difficult to prove, but simple to initiate. By switching the burden of proof once the plaintiff has established a prima facie case of discrimination, the Directive enables the plaintiff to establish a case of indirect discrimination which heretofore was virtually impossible.

As a result of this innovative approach to sex discrimination cases, the legislation was widely praised by Community leaders and committees. On February 26, 1997, the Economic and Social Committee (ECOSOC) delivered its opinion on the Commission’s proposal. It noted that despite a comprehensive effort by the Community to advance equal rights for women in the workplace, these rights have yet to be fully obtained.

ECOSOC praised the legislation for alleviating the burden on plaintiffs as previously they had been forced to provide absolute proof of discrimination. It reiterated that the Commission does not intend to reverse the burden of proof, but merely relieve plaintiffs of carrying the entire burden. ECOSOC also favored the Commission’s definition of indirect discrimination. It emphasized that the Community had yet to define the term in previous directives and only three Member States had established a meaning for the term in their laws. Since the proposal’s definition mirrors that which the European Court of Justice has developed, the legislation would provide legal certainty in interpreting or applying the term.

While welcoming the proposed legislation, ECOSOC had concerns about the practicality of its application. It feared that the proposed directive would partially inhibit the development of Small and Medium Enterprises (SMEs) once the claims reached a tribunal.” In order to satisfy the burden of proof, most employers would have to supply documentation of events that took place many years before. Unlike large corporations, SMEs would be burdened with increased transactional costs by having to maintain their personnel records and reports for long periods of time. In general SMEs conserve resources by avoiding maintaining such burdensome records. Nevertheless, the Economic and Social Committee did not consider this as a potential roadblock to the final passage of the legislation as important advances in social equality would still be included in the proposed directive.

In spite of such positive results, however, the proposal faced criticism from numerous opponents. The original proposal, which would have totally reversed the burden of proof from the plaintiff to the defendant, was blocked by the United Kingdom. The conservative British government adamantly opposed the adoption of such legislation since British law had already established a means of dealing with sex discrimination cases. Thus, the Commission was forced to abandon its original effort to address sex discrimination.

In 1993, when Belgium orchestrated a campaign to bring the sex discrimination legislation back to the table, Great Britain reiterated its opposition. The British government believed that the Community legislation would unfairly favor the complainant. Nonetheless, the new proposal passed with the required majority since unlike its predecessor, it was adopted under the Social Protocol in order to prevent another obstruction by Britain who at the time was not a signatory to the Protocol. Furthermore, the new proposal differs from its progenitor in that it does not fully reverse the burden of proof. However, the new British government under the Labor Party has since agreed to accept the Social Protocol. The Amsterdam Treaty, once ratified, would extend the Social Protocol to the U.K. and the Commission would soon thereafter issue a proposal extending the Directive to Britain.

The proposal has had additional dissenters. The Union of Industrial and Employers Confederations of Europe (“UNICE”) has been opposed to the adoption of legislation switching the burden of proof, fearing that such a directive would be unduly burdensome on employers and actually discourage them from voluntarily implementing policies to protect women in the workplace. UNICE contends that the legislation is unwarranted as such burden shifting already occurs in the individual Member States and in the European Court of Justice’s case law. Furthermore, it finds the legislation to be unfair since the difficulty of proving indirect discrimination also extends to disproving such discrimination.

Despite opposition to the proposal and a battle that has endured almost ten years, the Council adopted a Common Position on July 24, 1997. The Common Position deleted portions of the Commission’s proposal and made some additions. One of the more significant additions stated that the legislation does not prevent Member States from proclaiming rules of evidence which would be more favorable to plaintiffs (Article 4). The Common Position also emphasized the inapplicability of the Directive in proceedings where the court directs the investigation of the facts (Article 4(2)).

Equally important, the Council deleted the provision in the Commission’s proposal that would have given plaintiffs the benefit of any doubt that might remain in light of the evidence. The Council decided that it would be inappropriate to include this provision since the provision employed a criminal law concept while this directive does not apply to criminal proceedings. Moreover, the Commission’s proposal to grant the plaintiff the benefit of the doubt contradicts the traditional principle that the defendant should benefit from any doubt that remains.

Finally, the Council removed the references to marital or family status in its definition of the principle of equal treatment (Article 2). It believed that these references would limit the principle in a way that might prevent the effective application of the Directive.

In essence, the Directive requires that Member States introduce measures into their judicial systems that would switch the burden of proof from the plaintiff to the defendant once the plaintiff has established facts from which discrimination on the basis of sex can be inferred. In addition, the legislation denounces any effort by a Member State to reduce the general level of protection already afforded to those concerned by the Directive. The deadline for implementation of the Directive is January 1, 2001 (Article 7).