Right to Information in anti-discrimination litigation concerning private employment

Lilla Farkas, senior legal policy analyst, lfarkas@migpolgroup.com

Case in point: Galina Meister

Facts: Plaintiff - Russian national, 1961, Russian

degreee in engineering recognised by LandDefendant – Speech Design Career SystemsRefusal to interview as job applicant:

1st application to ad 5 Oct 2006Rejection 11 Oct 20062nd application to repeated ad 19 Oct 2006

Establishing a prima faciae case I.

Art 8 RED, Art 10 FED, Art 19 RGD: Establish ‘facts from which it may be presumed’.

Art 22 AGG compliant with EU law BUTDomestic court’s test: high degreee of probability –

does it comply with EU law?

Claim: direct discrimination on the ground of sex, ethnicity and/or age. Multiple discrimination?

Elements of direct discrimination to be established: disadvantage, protected ground, comparator.

Who establishes causal link b/w ground and disadvantage?

Establishing a prima faciae case II.

What has been established?disadvantage (documents: advertisement, job applications, degree certificate = kind of situation test)protected ground

What has not been established?comparatorcausal link

How to establish missing elements? Can they be established w/out info from employer?

Establishing a prima faciae case III.

Facts pertaining to comparator and causal link or lack thereof are with Defendant.

What to obtain: hired employee’s profile re gender, age, ethnicity, potentially similar stats on employees

How to obtain it: 1. Access these facts prior to trial: situation test, questionnaire procedure, simple request for information2. Access these facts during trial: order for disclosure of information, testimony of competent employee.

What is known: Rep of Defendant unable to explain clearly chronology of recruitment process in court. (para. 36. AGO)

AG’s test of a prima faciae case

EU law does not provide a right to information for victims of discrimination (para. 21. AG opinion)

BUT lack of access to information would render judicial protection ineffective (para. 26. AGO)

Defendant’s ATTITUDE and WIDER FACTUAL CONTEXT must be assessed (paras 31. and 37. AGO): refusal to disclose info, sole possession of evidence

Appraisal of AG Opinion

1. Fails to distinguish G Meister from Kelly2. Privacy v equality rights test in light of relevant EU directives?3. Access to information in a way that would respect 3rd party’s privacy

rights: redacted info or statistical info?4. Not the right questions asked?5. Stealing back intent into the debate?

WIDER FACTUAL CONTEXT? What if most important facts are not accessible?

ATTITUDE? Mala fidae conduct during judicial proceedings indicates previous stereotypical, discriminatory attitude?

DANGER: Does ATTITUDE signify INTENT?Lazyness or mala fidae action amounts to discrimination?

Flawed interpretation of Kelly

Kelly is a man relying on sex discrimination lawargued on ETD and BoPD?: access to UNREDACTED info, namely qualifications of

other applicantsNo entitlement to information on such qualifications

that would reveal 3rd party’s personal identityA refusal of disclosure by defendant ‘could risk

compromising’ directive’s objectiveAccess to info can be affected by EU law re confidentialityRESULT: REDACTED INFO ACCESSIBLE anyway

Discovering Facts

Any difference víz general rules of civil procedure: disclosure?

What facts? Facts on comparator, ie profile and/or statistics re gender, age and ethnicity.

What is the purpose of the BoP provisions? Who has the info on comparators and (lack of) causal link b/w disadvantage and protected ground?

Written materials

http://www.equalitytribunal.ie/Employment-Equality/Frequently-Asked-Questions/ee_2.pdfPart V, How to Present a Discrimination Claim?:http://ec.europa.eu/justice/discrimination/files/present_a_discrimination_claim_handbook_en.pdf