V. Employment Discrimination: Down by Law?
5. Scope of the ETA in employment
5.1. Discrimination grounds and their limits
The ETA has a general scope in respect of the groups and legal relationships covered by it. The scope of the ETA extends to all persons and groups of persons, in case of discrimination, based on any of their characteristics listed in article 8 on direct discrimination. As such, the defi nition of direct discrimination plays a central role within the ETA, as it defi nes the list of discrimination grounds.451 This list of 19 protected discrimination grounds is signifi cantly longer and much more detailed than either the former Hungarian clauses or the similar provisions stipulated in international instruments.452
The ETA follows the concept of the former anti-discrimination clause453 set forth in the constitution, albeit the list enshrined in the ETA is much more detailed and supplemented by new elements, such as age or sexual orientation.
At the same time it is worth pointing out that some of these new elements are in fact not absolutely new, since Article 70/A of the Constitution also contained the expression “other status or characteristic”. Therefore, some of the new grounds, such as for example age, were already covered by the Constitution and respective decisions of the Constitutional Court454 long before the Act.
An important consequence of locating this extremely broad personal scope of the ETA within the defi nition of direct discrimination is the absolute dominance of direct discrimination in legal practice. It is possible to use the relatively easily applicable and widely known defi nition of direct discrimination based on the express protection of all possible discrimination grounds, for example part-time work, trade union membership etc. As a result, lawyers and employees prefer to use the legal defi nition of direct discrimination instead of the more complicated
451 The following 19 characteristics are protected by the ETA (in the order set forth in the law):
sex; racial origin; colour; nationality; national or ethnic origin; mother tongue; disability;
state of health; religious or ideological conviction; political or other opinion; family status;
motherhood (pregnancy) or fatherhood; sexual orientation; sexual identity; age; social origin;
fi nancial status; the part-time nature or defi nite term of the employment relationship or other relationship related to employment; the membership of an organisation representing employees’ interests; other status, attribute or characteristic.
452 See for instance: European Convention on Human Rights, Article 14; International Covenant on Civil and Political Rights, Article 2 (1); International Covenant on Economic, Social and Cultural Rights, Article 2 (2)
453 Article 70/A.
454 Dec.’s 14/1995. (III. 13.) AB, 20/1999. (VI. 25.) AB.
and unexplored notions of indirect discrimination or harassment (eg. in case of part-time work).
Consequently, Hungarian legal practice hardly knows cases beyond direct discrimination455 (see the respective case-law later). We do not consider this development as a shortcoming of the ETA, but as a rational solution, which simplifi es legal practice through the method of providing very detailed rules on direct discrimination. In this sense, the lack of indirect discrimination cases is not the symptom of a lack of remedy in such cases, but rather the uniform classifi cation of all cases, including indirect discrimination based on part-time work or any other characteristic.
5.1.2. The narrow interpretation of “other characteristics”
It is worth mentioning that the open list of discrimination grounds has already caused serious interpretation problems regarding the meaning of “other characteristics”, since its precise meaning remained obscure for a long period of time. The main source of uncertainty regarding its interpretation is that this discrimination ground opens the list to all possible personal attributes, which are not present in the list of discrimination grounds.
Right at the start of the application of the ETA, both the Equal Treatment Authority and the courts gave this rather fl exible discrimination ground an extremely and unduly wide interpretation.456 This remarkably wide interpretation may be illustrated by the fact, that a former workplace confl ict (labour law litigation) between the superior and the employee was accepted as a discrimination ground in case of a disadvantageous decision made by the superior.457 Nonetheless the Equal Treatment Authority stated discrimination based on a long list of considerably diverse “other characteristics”, such as a professional debate between the superior and the employee458, critical
455 Beszámoló az Egyenlő Bánásmód Hatóság 2012. évi tevékenységéről…
456 G , Tamás – Kádár, András Kristóf: A magyar antidiszkriminációs jog vázlata.
Egyetemi jegyzet. Miskolc, Bíbor, 2009. 32–37.
457 EBH Dec. 22/2006.
458 EBH Dec. 1/2008.
professional opinion459, old-age pension460, domicile461, slim stature462 or even the level of degree.463
In our opinion, only a few of the above characteristics may be considered a genuine discrimination ground, depending of course on the circumstances of the case. At the same time, many circumstances featured in the above list are clearly not genuine discrimination grounds (eg. professional debate, opinion, old-age pension), but this kind of diff erentiation is rather the wrongful exercise of rights (abuse of rights), prohibited under the Labour Code. Wrongful exercise of rights means, in particular, any act that is intended for or leads to the injury of the legitimate interests of others, restricts the enforcement of their interests, constitutes harassment or the suppression of their opinion.
The main diff erence in law between basing the claim on discrimination or wrongful exercise of rights is that the burden of proof is reversed only in discrimination cases.464 Since the protection provided under anti-discrimination law is designed and provided solely for those persons and groups of persons who are at a disadvantage due to some characteristic closely connected to their personality (substantive feature of human character), the Equal Treatment Advisory Board465 recommended a restricted interpretation of the notion of “any other characteristic” in order to ensure that the preferential rules on reversing the burden of proof are applied only to those who truly need it.
Accordingly, the Equal Treatment Authority and the courts started to follow this restricted understanding of other characteristics as a discrimination ground.
This narrow notion is based on the substantive feature of human personality.
Although the concept of other characteristic is constantly changing, its hard core derives from social prejudice, thus it is capable of forming a disadvantaged social group. Even in such cases the person possessing this characteristic is discriminated against primarily as a consequence of belonging to such a group of persons and not due to his/her individual behaviour.
459 EBH Dec. 166/2009.
460 EBH Dec. 234/2009.
461 EBH Dec. 1/2007.; EBH Dec. 819/2008.
462 EBH Dec. 310/2007.
463 EBH Dec. 395/2007.
464 Article 19 of ETA.
465 Az Egyenlő Bánásmód Tanácsadó Testület 288/2/2010. (IV. 9.) TT. sz. állásfoglalása az egyéb helyzet meghatározásával kapcsolatban, http://www.egyenlobanasmod.hu/data/
TTaf_201004.pdf (in Hungarian).
In accordance with this test, the Equal Treatment Advisory Board recommended the following examples of discrimination grounds on this legal basis: multiple discrimination, discrimination through association, nationality, level of education (as an aspect of social origin), physical appearance (slim or fat body), kinship with a person who is discriminated against, place of residence and geographical distance.466 However, even in these cases the decision, whether the alleged discrimination is stated by the Equal Treatment Authority or the court, may be made by taking into account all relevant circumstances of the case. Therefore, it is a very complicated task to provide clear and generally applicable guidance on this matter to forego a simple automatic application of a list of accepted characteristics.