Equality in the EU 20 years on from the initial implementation of the equality directives

In line with Article 5 of the Racial Equality Directive and Article 7 of the Employment Equality Directive – on what both directives refer to as positive action – EU Member States could introduce measures “to prevent or compensate for disadvantages linked to” the grounds of discrimination and areas of life listed in these directives, as evidenced by FRA research and national data sources.

EU Member States could identify such disadvantages and trends in discrimination through the systematic data collection and analysis of the lived experiences and socio-economic conditions of members of population groups at risk of discrimination, as outlined in FRA Opinion No. 6 on equality data.

In line with Article 15 of the Racial Equality Directive and Article 17 of the Employment Equality Directive, EU Member States should step up efforts to improve the effectiveness of measures and institutional arrangements they have in place to enforce anti-discrimination legislation, and ensure that “sanctions applicable to infringements of the national provisions adopted pursuant to” the directives are “effective, proportionate and dissuasive”.

The EU legislator and Member States should strive to ensure comparable, consistent and high levels of protection against discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation in different areas of life. In doing so, Member States could draw inspiration from strategies and action plans of the European Commission that set out to achieve a Union of equality. These include the EU anti-racism action plan 2020–2025; the EU Roma strategic framework for equality, inclusion and participation 2020–2030; the LGBTIQ [lesbian, gay, bisexual, trans, intersex and queer] equality strategy 2020–2025; the strategy for the rights of persons with disabilities 2021–2030; the Action plan on integration and inclusion 2021–2027; and, the EU gender equality strategy 2020–2025.

The EU and its Member States should continue exploring all possible options to unblock the negotiations on the proposed Equal Treatment Directive. Adopting the directive without further delay would remove the artificial hierarchy of grounds that has installed itself in the Union, ensuring that the EU and its Member States provide comprehensive and consistent protection against discrimination on the grounds of religion or belief, disability, age or sexual orientation in key areas of life currently not covered by EU secondary legislation.

The EU legislator should consider broadening the concept of discrimination to include intersectional discrimination in existing and new legislation in the area of equality and non-discrimination. This would enable the EU and Member States to reinforce legal protection against intersectional discrimination, in particular for women who face discrimination based on the combination of different grounds of discrimination.

The EU and its Member States should assess in detail the impact of the increased reliance on algorithms and AI in decision-making on equal treatment and non-discrimination and introduce relevant fundamental rights safeguards to limit this impact. This would contribute to alleviating risks related to potential discriminatory biases being built into algorithms and AI used in decision-making.

In this respect, the EU should also consider funding targeted research on discrimination by means of AI and algorithms.

The European Commission and EU Member States should consider developing specific guiding principles on encouraging reporting of discrimination to equality bodies under the activities of the High Level Group on Non-discrimination, Equality and Diversity, and in close cooperation with Equinet, equality bodies and relevant civil society organisations.

With respect to encouraging reporting, the EU and Member States should consider transferring lessons learned from activities facilitated by FRA on encouraging reporting of hate crime under the EU High Level Group on combating racism, xenophobia and other forms of intolerance to the context of encouraging discrimination reporting to equality bodies. The key guiding principles on encouraging reporting of hate crime, as endorsed by the High Level Group, could be adapted to the context of reporting discrimination to equality bodies, particularly as regards:

• setting up effective systems for referrals between equality bodies, the police and civil society organisations;
• providing accessible reporting channels, including third-party reporting;
• providing tailored outreach to people at risk of discrimination.

Member States should step up their efforts to ensure that equality bodies have the means necessary to raise awareness of their existence and remit, in particular among population groups at risk of discrimination as well as among the general population.

The European Commission and Member States should foster independent research with groups in the population most affected by discrimination to explore the various factors that may influence people’s decision on whether or not to report to equality bodies.

EU Member States should strengthen efforts to raise awareness of anti-discrimination legislation and relevant redress mechanisms, in particular among all the population groups at risk of discrimination, in line with Article 10 of the Racial Equality Directive and Article 12 of the Employment Equality Directive.

EU Member States should step up efforts to use tools, such as public sector equality duties and equality impact assessments, to ensure implementation of the principle of equal treatment.

EU Member States should ensure that equality bodies can effectively fulfil their tasks, as assigned by the Racial Equality Directive, and with respect to the roles provided for them in the EU anti-racism action plan; the EU strategy on victims’ rights; the Council Recommendation on Roma equality, inclusion and participation; the proposal for a Regulation laying down common provisions on EU funds for the period 2021–2027; and the proposal for binding pay transparency measures.

This entails ensuring that equality bodies are given sufficiently broad mandates and allocated adequate human, financial and technical resources to perform all their statutory tasks effectively and independently. The European Commission’s 2021 report on the application of the racial and employment equality directives also highlights this necessity.

When doing so, Member States should give due consideration to the European Commission’s Recommendation (EU) 2018/951 of June 2018 on standards for equality bodies. This includes enabling equality bodies to receive and handle complaints (including complaints by third parties) and assist victims of discrimination; publish independent reports and recommendations on any issues related to discrimination; collect data through independent surveys, which contributes to the evidence base for monitoring levels of discrimination; and promote awareness of the existence of equality bodies among the populations they were set up to serve.

Member States are encouraged to fully implement the measures included in the European Commission Recommendation on standards for equality bodies, to ensure that these bodies can fulfil their immense potential and promote equal treatment in practice.

In addition, the European Commission is encouraged to propose new legislation by 2022 to strengthen equality bodies, as outlined in the EU anti-racism action plan 2020–2025. The unequal protection against discrimination across the EU that results from the variety in the setup of equality bodies speaks in favour of such legislation, particularly when considering that equality is one of the founding values of the Union.

Considering the variety of legal traditions and systems in Member States, continuing an exchange of practices is encouraged to identify how measures implemented in one country – to strengthen equality bodies – could be transferred to another. Member States could request the assistance of the European Commission, FRA and Equinet to facilitate such exchanges of practices.

Member States are encouraged to apply the indicators developed by Equinet to measure compliance with standards for equality bodies and to adopt measures to strengthen these bodies accordingly.

The EU should ensure that Equinet is provided with the adequate human, technical and financial resources to enable it to further develop and ensure implementation of its sets of indicators, to assist the European Commission, Member States and equality bodies in monitoring the practical implementation of the Recommendation on standards for equality bodies. This would contribute to strengthening equality bodies.

EU Member States should ensure the systematic collection of reliable, valid and comparable equality data, disaggregated by sex, racial and ethnic origin, religion or belief, disability, age or sexual orientation. Member States should collect these data through the means described below, based on the self-identification of those at risk of discrimination. Civil society organisations representative of these population groups should contribute to developing relevant definitions and indicators.

Member States should draw on the fullest possible range of sources of equality data, including, at the national level, alongside FRA data, population censuses; administrative registers; household and individual surveys; victimisation surveys; attitudinal surveys; complaints data and research from equality bodies; situation testing; diversity monitoring by employers and service providers; and data generated through qualitative research strategies, such as case studies, in-depth interviews and expert interviews.

Member States should reinforce regular and comprehensive collection of equality data through their national statistical institutes and other relevant government agencies.

This includes systematic compilation of equality statistics based on population and household censuses, administrative registers and official EU-wide surveys, such as the European Union Statistics on Income and Living Conditions, the Labour Force Survey and other representative surveys. To enable the monitoring of equality outcomes, such data sources should (i) cover under-represented groups at risk of discrimination and (ii) include information on experiences of discrimination on the grounds of sex, racial and ethnic origin, religion or belief, disability, age or sexual orientation.

To develop strategies to adequately capture situations in which different grounds of discrimination intersect or act in combination with one another – that is, multiple and intersectional discrimination – EU Member States should use a comprehensive set of equality data collection tools, including large-scale quantitative surveys covering different population groups and grounds of discrimination, alongside discrimination testing, which is an established method for generating objective evidence of discrimination.

Member States should step up efforts towards a coordinated approach to equality data collection and use such data as a basis for developing evidence-based policies to foster equality and non-discrimination.

In this regard, Member States should give due consideration to the Guidelines on improving the collection and use of equality data endorsed by the EU High Level Group on Nondiscrimination, Equality and Diversity. Member States are encouraged to use the mapping tool and compendium of practices that complement these guidelines. EU institutions and bodies should consider applying these guidelines within their own structures.

In line with Guideline No. 2 in the Guidelines on improving the collection and use of equality data, Member States should consider enabling equality bodies to foster interinstitutional cooperation in the collection and use of equality data. This could be achieved through setting up structures (e.g. an interinstitutional working group) that enable systematic and long-term cooperation between relevant entities in any given country. Member States that mandate equality bodies with such a coordination function should ensure that these bodies are provided with the necessary capacity, expertise and resources.

The GDPR allows for the collection and processing of special categories of personal data under certain conditions, including for statistical or research purposes (Article 9 (2) (a), (g) and ( j)).

Data collectors and data processors in EU Member States should seek the advice of their national data protection authorities and further guidance from the European Data Protection Board (EDPB) and the EDPS about the safeguards that need to be applied when collecting and processing special categories of personal data, including for the purpose of scientific research (Article 9 (2) (j) of the GDPR). In doing so, they should take due consideration of the EDPS preliminary opinion on data protection and scientific research from 6 January 2020 and the upcoming EDPB guidance on data protection and scientific research.

All equality data collection and processing should be done in full compliance with the principles and safeguards set out under the GDPR.