Making Equal Treatment Legislation Work for Migrants
By Niall Crowley
Introduction
The European Union has valuably championed the right to equal treatment, set
standards in relation to the right to equal treatment and innovated in advancing
the right to equal treatment. This is evident both in Treaty provisions and in
policy initiatives.
There are Treaty provisions that empower the European Union to combat
discrimination on the ground of racial or ethnic origin. There are also Treaty
provisions that require the European Union to mainstream a concern for nondiscrimination in all its legislative and policy initiatives.
The key policy initiative taken by the European Union is the ‘Race’ Directive. This
prohibits direct discrimination, indirect discrimination, harassment and
victimization on the grounds of racial or ethnic origin both within and beyond
the labour market. It allows for positive action to achieve full equality in practice.
The European Union has also taken policy initiatives developing guidance,
promoting good practice exchanges and building the debate for nondiscrimination on the ground of racial or ethnic origin. This has included a
particular focus on non-discrimination mainstreaming in policy making, policy
implementation and policy evaluation. This is a key process that brings a concern
for equal treatment on the ground of racial or ethnic origin into the heart of
policy making. If done well, this process enables a shift in institutional culture,
change in institutional processes and new outcomes for Black and minority
ethnic people from institutional practice.
Member States have also taken on the challenge of equal treatment. Many have
gone further than European level requirements by introducing nationality
and/or national origin within the grounds covered by their equal treatment
legislation. This enhances the protection for third country nationals, because
otherwise they have to rely on the prohibition on indirect discrimination to
assert their rights and this can be more difficult to achieve.
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Some Member States have gone further than European level requirements by
introducing positive duties on employers and service providers in their equal
treatment legislation. These are duties to have due regard to equality and nondiscrimination for Black and minority ethnic people (among other groups) in
carrying out their functions. These duties most often apply to the public sector
but in some instances extend to the private sector.
These positive duties bring equal treatment legislation beyond an individual
enforcement model. They do not require an individual claimant taking a case to
spark action. Positive duties can drive the institutional change that is so central
to advancing integration of the cultural diversity in our societies in a way that is
based on equality. They play a key role in preventing discrimination and this is
vital in a context of significant under-reporting of discrimination.
Equality Bodies
All Member States have transposed the European Union ‘Race’ Directive. In doing
so they have designated bodies to promote equal treatment and nondiscrimination. These equality bodies differ in size and function across the
Member States but they all play a role in making equal treatment legislation
work for Black and minority ethnic people.
A European Commission study, published in 2010, identified the valuable
potential in these equality bodies. They found the equality bodies played roles in:

Supporting individuals whose rights have been breached.

Supporting organisations to implement good practice equality and
diversity systems.

Supporting quality in public policy making.

Developing a knowledge base on equality, diversity and nondiscrimination.

Stimulating a public awareness that is positively disposed to equality,
diversity and rights.
However, despite this progress, there are issues in making the rights established
in equal treatment legislation work for Black and minority ethnic people. We
have worked hard to achieve the legislative base for these rights and the
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infrastructure to enforce these rights. These achievements are worthy of
celebration. However it is only the beginning of the task of securing equal
treatment.
Under-reporting
There are very high levels of under-reporting of discrimination. Work done by
the Fundamental Rights Agency found that over 90% of some groups of migrants
do not report the discrimination they experience. Equinet (the European
network of equality bodies) surveys have consistently noted equality bodies
identifying the dangers of low levels of reporting of discrimination, particularly
on the ground of racial or ethnic origin.
Under-reporting is a result of low levels of awareness of one’s rights and how to
assert one’s rights. But it is more complex than this. Under-reporting is also
about a lack of belief that change is possible. It results from low levels of trust in
public institutions. It involves significant fears of victimisation if one makes a
complaint.
This presents a significant challenge to equality bodies and to all stakeholders
who have worked so hard to establish these rights in law. Civil society
organisations and public authorities are also challenged to respond to this issue
of under-reporting. All these organisations need to take on making equal
treatment legislation work for Black and minority ethnic people as part of their
brief.
There is a need to create partnerships between equality bodies and civil society
organisations in order to build effective responses to under-reporting.
Partnerships can enable mutual learning. The equality bodies learn about the
perspectives and experiences of Black and minority ethnic people. The civil
society organisations learn about the equal treatment legislation and how to
make good use of its provisions.
Partnerships enable good channels of communication between equality bodies
and Black and minority ethnic people. Partnerships also enable messages to be
developed about rights and the exercise of rights that will work with Black and
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minority ethnic people. Above all partnerships build trust in the equality bodies
and a confidence that change is possible.
Cultural change
Under-reporting is a cultural phenomenon. It needs a cultural response. Equality
bodies, public authorities and civil society organisations need to work together
to develop:
1. A culture of rights among the general public such that there is a valuing of
equality and diversity in society and a respect for people who take on to
exercise their rights in pursuit of non-discrimination. Public education
initiatives are needed that address and change the societal value base
towards a valuing of equality. Leadership for equality, diversity and nondiscrimination needs to be stimulated and supported, especially in public
debates. The media need to step up to the mark and make equality,
diversity and non-discrimination issues of informed national debate.
2. A culture of compliance among employers and service providers such that
there is an expectation that to discriminate has consequences. A culture of
compliance requires a critical mass of cases to be taken under equal
treatment legislation. It needs the imposition of dissuasive sanctions
where discrimination is found. It involves successful cases becoming a
matter for public debate and communication.
3. A culture of confidence such that there is a supportive context within
communities that experience discrimination and inequality for members
of these communities that take action to challenge this discrimination.
Victimisation needs to be addressed with particular vigour by equality
bodies to enable this confidence. Legal supports and personal and
emotional supports need to be available to those who would take cases
under the equal treatment legislation. Safe spaces need to be established
to build an engagement between those who would take cases and those
who could support them to do so.
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Conclusion
These are the three key challenges that must be met if we want to make equal
treatment legislation work for migrants. At any time these would be difficult
challenges. In the current context of economic and financial downturn they are
particularly difficult.
Meeting these challenges requires an empowered, resourced and valued equality
infrastructure. At the heart of this equality infrastructure is an independent and
effective equality body. Central to this equality infrastructure are informed,
resourced and committed civil society organisations. Investment in this
infrastructure is as important now as it ever was.
This investment will be key to supporting the participation of Black and minority
ethnic people in our societies. It will be key to enabling an effective exit from
economic and financial downturn. It will be key to ensuring more equal and
diverse societies to emerge from the current crises we are experiencing. These
outcomes make a powerful case for this investment. This too is the investment
that will make equal treatment legislation work for migrants.
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