Combating discrimination and promoting equality as a fundamental human right and a basic principle of social justice
On 24 February 2010, Albanian President Bamir Topi signed Law No. 10 221 “On Protection from Discrimination” adopted by the Albanian parliament earlier this month. The entry into force of this law is a significant step forward for the protection of equality and non-discrimination in Albania.
The new law puts in place a solid legal foundation guaranteeing the rights to equality and non-discrimination. It also represents a significant victory for Albanian civil society organisations who drafted the original bill, following advice and guidance from The Equal Rights Trust, and who have worked tirelessly to secure its adoption since it was submitted to parliament on 11 November 2009. The draft submitted by civil society was adopted by the parliament with only minor amendments.
Below we set out the scope and some of the most noteworthy elements of the new law.
Article 2 states that the aim of the law is to ensure the right of every person to equality before the law and to equal protection of the law. It stresses the importance of promoting equality of opportunity and ensuring that every person is able to fully participate in public life. It states that the law seeks to ensure effective protection not only from discrimination, but from every form of conduct that encourages discrimination.
2.1 Prohibited Grounds of Discrimination
Article 1 prohibits discrimination based on gender, race, colour, ethnicity, sexual orientation, gender identity, language, political beliefs, religious beliefs, philosophical beliefs, economic status, social status, education level, pregnancy, parentage, parental responsibility, age, family or marital condition, civil status, residence, health status, genetic predispositions, disability, affiliation with a particular group or any other ground.
2.2 Forms of Discrimination
Article 5 sets out a general prohibition of discrimination on all of the grounds listed in Article 1. It also provides that the denial of adaptations and modifications for people with disabilities constitutes discrimination.
Article 3 provides detailed definitions of various forms of discrimination which are prohibited under the law. The prohibited forms of discrimination include direct and indirect discrimination, discrimination by association, harassment, instruction to discriminate and victimisation.
The definitions of the various forms of discrimination contained in the law appear to be largely consistent with European Union (EU) law. However, the definition of direct discrimination under the law does not explicitly permit the use of hypothetical comparators which is explicitly permitted under the definition of direct discrimination under European Union law -- for example, Article 2 (2)(a) of Council Directive 2000/43/EC (Racial Equality Directive). As such, a challenge remains for the courts to progressively interpret Article 3(2) and permit the use of hypothetical comparators to ensure that the law is consistent with EU law.
To its merit, the Albanian law extends the scope of protection from discrimination beyond that provided under EU law in two important ways. Firstly, it stresses that the denial of reasonable accommodation is discrimination under Article 3(7). This approach is currently being debated by EU member states in the negotiation for a new EU Equality Directive. Secondly, Article 3(4) builds on the jurisprudence of the European Court of Justice developed in Coleman v. Attridge Law and Steve Law (Case C-303/06) by explicitly stating that “discrimination because of association” is a prohibited form of discrimination.
3. Areas in Which Discrimination is Prohibited
The law is broad in scope: as stated above, Article 2 provides the purpose of this law is to assure the right of every person to: a) equality before the law and equal protection of the law; b) equality of opportunities and possibilities to exercise rights, enjoy freedoms and take part in public life; and c) effective protection from discrimination and from every form of conduct that encourages discrimination. This broad scope of application is complemented by a focus on areas where discrimination is particularly prevalent, such as employment, education, and the supply of goods and services (including housing and health).
In respect to employment, Article 12 provides that any distinctions, limitations or exclusions based on any of the protected grounds are prohibited in the field of employment. This includes any adverse treatment relating to job opportunities, the recruitment of staff and the treatment of staff within the workplace. Article 12 (2) states that all types of harassment – in particular sexual harassment – are prohibited in the workplace.
Article 13 places a range of positive obligations on employers to encourage the principle of equality and facilitate its promotion within the work place. The Article creates a duty on employers to investigate any complaints of discrimination made by their employees within one month of receiving them.
Article 17 sets out the scope of the prohibition of discrimination in relation to education. It provides that discrimination is prohibited in: the creation of public or private educational institutions; the financing of public education institutions; the content of principles and criteria of educational activity, including teaching; and the treatment of students or pupils, including admission, evaluation, discipline or expulsion. The denial of access to an educational establishment on the basis of a prohibited ground is also specifically outlawed (Article 17(2)).
Goods and Services
Under Article 20, the prohibition of discrimination in respect to goods and services includes housing, health services, banking, entertainment facilities and transport. The Bill provides that people should not be denied goods or services based on any of the grounds laid out in Article 1, nor should they be provided with goods or services in a different manner to the way in which they are provided to the public in general. The Bill applies to any natural or legal person who offers goods or services to the public.
4. Positive Action and Positive Duties
Article 11 permits positive action, which it defines as a “particular temporary measure that aims at speeding up the real establishment of equality”. The article states that this measure must be suspended on achievement of the equality objective.
In addition, Article 14 places particular positive duties on the Council of Ministers, the Minister of Labour, Social Issues and Equal Opportunities and the Interior Minister. Each Ministry has a general duty to take measures of a positive nature in order to fight discrimination in connection with the right to employment. Moreover, two specific measures are prescribed in order to fulfil this general duty:
• Raising consciousness about Law No. 10 221 with employees and employers by, among other things, providing information about it;
• Establishing special and temporary policies, on the basis of the characteristics mentioned in Article 1, for the purpose of encouraging equality, in particular between men and women as well as between fully physically able persons and those who are of restricted ability.
In respect to education, Articles 18 and 19 place specific duties on the Minister of Education and Science and the directors of educational establishments to combat discrimination by taking positive measures to raise awareness about the law in the educational system. Article 18 further specifies that the Minister of Education and Science must, among other things, take measures for:
“Including concepts and actions against models of discriminatory behaviour in teaching programmes;
“Educating the entire population, in particular, by taking measures in favour of women and girls, minorities, persons of restricted ability as well as persons who are or have more possibility of being the object of discrimination for the causes mentioned in Article 1 of this law;
“Respecting and assuring the right to education in the languages of minorities, as well as in appropriate manners for persons with restricted ability.”
5.1 The Commissioner for Protection from Discrimination
In line with Article 13 of the EU Council Directive 2000/43/EC (Racial Equality Directive) which requires that states must designate a body or bodies for the promotion of equal treatment, Articles 21 to 33 set out the structure, mandate and powers of the Commissioner for Protection from Discrimination (the Commissioner), an independent legal person, subject only to the Constitution and the law. The Commissioner is elected by the government assembly and has a five year mandate.
The Commissioner is entrusted with monitoring the implementation of the law and proposing the approval of new legislation or the amendment or reform of existing legislation. The Commissioner is required to provide information on equality law and to take an active role in monitoring the implementation of such laws, as well as make recommendations for legislative reform. The Commissioner is also entrusted with ensuring that all persons and bodies are properly informed about their right to protection from discrimination and the legal remedies available to them in this regard.
The Commissioner has the power to investigate complaints from persons, or groups of persons, who allege they have been victims of discrimination. If it is found that there has been a violation of the law then the Commissioner has the power to impose administrative sanctions on culpable persons and organisations.
5.2 Enforcement through the Courts
Under Article 34, cases of discrimination can be brought before the civil courts, as an alternative to lodging a complaint with the Commissioner. Such cases are subject to a limitation period of five years from the time of the alleged discrimination, or three years from the time the injured party had knowledge of the discrimination.
The procedural requirements in relation to the burden of proof are explained in Article 36(6) which states:
“After the plaintiff submits the evidence on which he bases his claim and on the basis of which the court may presume discriminating behaviour, the defendant is obligated to prove that the facts do not constitute discrimination according to this law.”
It is unclear whether “evidence” in this case has the same meaning as “facts”, which is the wording used in EU law and which would therefore require a shift in the burden of proof to the alleged discriminator once a prima facie case had been established. This is implied through the use of the word “facts” in the latter part of Article 36(6). Nonetheless, it will be necessary for Albanian courts to firmly establish that this is the correct interpretation, as the burden of proof requirements have been amongst the main barriers to combating discrimination through the courts throughout Europe.
If it is proven that discrimination has taken place, the court, under Article 38, can order restorative measures aimed at ensuring that the plaintiff is placed in the same position as they were prior to the discrimination. They may also provide compensatory damages to the injured party.
6. ERT Comment
The new Bill places Albania in a progressive position in the field of equality legislation for a number of reasons. Importantly, Albania is now one of the few European countries which have officially prohibited discrimination on the grounds of gender identity. The parliament of Albania has also taken a positive step by prohibiting discrimination on grounds of sexual orientation. This sends two clear messages. First, it underlines that discrimination on grounds of sexual orientation and gender identity is unacceptable and that sexual minorities have equal rights in Albanian society. Second, it sets a positive example for countries that have yet to adopt a comprehensive anti-discrimination law. Unfortunately, however, the list of prohibited grounds does not explicitly include “nationality” or “citizenship”, although the open nature of the list of proscribed grounds means that there is no obstacle to considering these grounds as covered.
Albania now has a comprehensive anti-discrimination law which provides a strong framework to combat discrimination and promote equality. This, however, is only the first stage. The difficult second stage is to ensure effective implementation. The appointment of a committed and well resourced Commissioner is necessary for this second stage. Yet the breadth of positive duties falling upon various Ministries means that implementation is not, nor should it be, the exclusive responsibility of the Commissioner.
If equality laws are to be effective, a wide range of stakeholders have a role to play. Civil society in Albania has already begun preparing for this second stage with the drafting of an implementation strategy. It will be important that state authorities also play an active role to ensure that the law works in practice.
You can read the English translation of Law No. 10 221 by clicking here.