LEGAL REPORT – Equalities and exclusion: The EU anti-discrimination framework and trends in jurisprudence, regarding the human rights of Roma in the areas of education and employment
The report gives a concise overview on the current legal anti-discrimination framework in Europe, with a specific focus on human rights of Roma, in the areas of education and employment. It identifies recent case law at the EU level (ECtHR, CJEU) in this field, and provides an analysis of observable trends in jurisprudence, with a specific focus on new legal developments and potential risk areas.
In the EU, equality is embedded in the Treaties as one of its fundamental values. The prohibition of discrimination is proclaimed also in the Charter of Fundamental Rights of the European Union. The Roma community is protected as an ethnic minority, both by EU law (primary and secondary through the Racial Equality Directive) and by the European Convention on Human Rights. Under both legal systems, the burden of proof, once a prima facie case of discrimination is established, lies with the respondent.
The European Court of Human Rights has developed rich jurisprudence in the context of discrimination in education on the basis of ethnic origin. With its case law, the Court has condemned national segregational practices which consisted in segregation through misdiagnosis due to unsuitable entrance examinations, segregation within the school through creating Roma-only classes, and ‘voluntary’ segregation through white flight. More in particular, the Court has repeatedly underlined the special status of Roma people who, due to their vulnerable situation, require special protection; it also recognized segregation as a form of indirect discrimination and accepted that various forms of evidence can be used to establish a discrimination case. It went so far as to accept evidence pointing to structural discrimination. Furthermore, it introduced an obligation on the part of the States to take positive action measures in order to address structural disadvantages caused by past discrimination. When reviewing these measures a strict level of scrutiny is required to make sure that the State has fulfilled its obligations under the Convection. Lastly the Court has repeatedly held that consent (thought the parents’ approval) cannot be considered valid if it is perceived as a waiver of the right not to be discriminated against.
As regards the right to employment, although it is also a fundamental right protected in the European legal order, there is no relevant case-law. The report attributes this to unwillingness of victims of discrimination to report alleged infringements and lack of confidence in the legal system set out by the RED and its respective effectiveness.
To date, only one CJEU judgment has been issued concerning specifically Roma population, which, although not related to education or employment is substantial for the defence of Roma rights based on the RED before the European jurisdiction in the future.
Finally, persistent risk areas in Roma-related discrimination can be identified in lack of effective powers by the ECtHR which can only go so far as to provide declaratory relief and maybe general recommendations and a framework of suggested remedies. This points to a systematic risk of unimplemented or ineffectively implemented rulings. A comparable structural gap can be detected with view on the CJEU. Furthermore, the underlying social tenses are a pertinent problem, as coping with ingrained prejudices and reservations, traditional legal instruments are stretched to their limits. Lack of information of Roma people regarding their rights and their mistrust in the educational system, further enhances the systemic discrimination issues.