Discrimination in employment – an issue that is talked about a lot, and yet, it seems, always not enough, so we conclude based on, at least, two angles of observation. First of all, it seems that the need to discuss this topic exists as long as there is discrimination in the world of work, and as the data at the European level, but also in the Republic of Serbia, show that, discrimination not only exists, but is especially emphasized precisely in the labor law context.[1] On the other hand, the fact that there is a constant need to talk, write and think about this issue is also influenced by the understanding that dealing with this issue is in fact not “finished”. In that regard, it seems that we are constantly becoming aware of “new” risks, but also “new” forms in which discrimination can occur. And while the mentioned testifies of the constant efforts in the fight against discrimination, the other side of the coin points us to a still long and challenging road when it comes to recognizing and combatting discrimination in practice, and with the goal of achieving equality.[2]

Having in mind the abovementioned, we shall address in more detail the concept of associative discrimination, as a relatively “new” form of discrimination, that was, as a concept, first introduced by the Court of Justice of the European Union, in the case of S. Coleman v Attridge Law and Steve Law[3], from 2008. Namely, it is a labour law case from the United Kingdom, which concerned a woman who was subject to discrimination on the basis of disability at work, and in the end, she was even forced to quit her job. At first glance, this case is nothing or at least not very different compared to dozens, even hundreds of other cases of discrimination based on disability in the employment and work sphere. However, what sets this case apart is that the disability is not a personal characteristic of the person who was discriminated against, but of her son. This case was addressed by the Court of Justice of the European Union, and the Court concluded that there was direct discrimination based on disability. In other words, the Court took that (direct) associative discrimination has occurred.

The Court’s decision is, to say the least, significant, and we would even dare to say revolutionary. The reason why we claim this is because, with the concept of associative discrimination, the very understanding of discrimination changes, to some extent. Namely, the very concept of discrimination requires the existence of a personal ground (or grounds) as a basis for unjustified unequal treatment, i.e., discrimination. In other words, in order to speak about the existence of discrimination, a causal relation between a personal characteristic and the unjustified unequal treatment must exist. By recognizing the concept of associative discrimination, the Court has widened the scope of such definition so that it does not apply only to a personal ground of one’s one (intentional pleonasm), but also based on a personal ground of a person (closely) associated to the victim of discrimination. However, there are still some opened questions and dilemmas such as the one relating to the degree of closeness between the persons necessary in order to speak of the risk of associative discrimination, as well as the questions relating to the possibility of associative discrimination to be indirect. When it comes to the first question, we have to be especially careful, and since in the absence of any criteria of “closeness”, we run the of putting to question not only the concept of associative discrimination, but discrimination in general.

The latter question was answered by the Court, at least to some extent, in the case of “CHEZ Razpredelenie Bulgaria” AD v Komisija za zashtita ot discriminatsia[4]. Namely, it is a case concerning the situation in which, in an area in a Bulgarian town where the population was predominantly Roma, the boxes for measuring electricity consumption were placed significantly higher than in other areas, that is, parts of town. Even though the claimant in this case was not Roma, she claimed that she was discriminated and stigmatized based on Roma ethnic origin. The Court took the stance that the claimant in this case was, like other residents of this area, put in a worse position without justified reason, and based on the stereotypes against Roma people, i.e., that she was submitted to associative discrimination (even though not using the precise term). The Court did not take a precise stance in regard to discrimination in this case being direct or indirect, but based on the careful reading of certain paragraphs of the verdict and the opinion of the advocate general Juliana Kokott, we can assume that it is recognized that associative discrimination can also be indirect.

What does the mentioned mean for the world of work, and why is it relevant for the Republic of Serbia?

Recognizing each “new” form of discrimination is important for the fight against discrimination in every context where we encounter discrimination, which seems to happen especially often in the world of work. In this regard, we note that, when it comes to domestic anti-discrimination legislation, the Act on Prohibition of Discrimination[5] (which applies to the employment and work sphere, among other spheres) and the Act on Prevention of Discrimination against Persons with Disabilities[6], as well as the Gender Equality Act[7] state that discrimination is unjustified unequal treatment “in relation to individuals or groups, as well as members of their families or persons close to them”.[8]

While the aforementioned acts recognize the concept of associative discrimination, this is not the case when it comes to the Labour Act[9], despite the generally developed anti-discrimination norms in this act and labour legislation in general. With that in mind, the next question we ask ourselves is whether we can expect the application of this concept in the domestic context. However, we leave this question, and a more detailed answer, for one of the next blogs.

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Read more in the paper: M. Kuzminac, “Analysis of Indirect and Associative Discrimination in Employment from the European Union Law Perspective”, Strani pravni život 1/2024, 15–37. https://doi.org/10.56461/SPZ_24102KJ