Right to Information in anti-discrimination litigation concerning private employment

1. Right to Information in anti-discrimination litigation concerning private employment Lilla Farkas, senior legal policy analyst, lfarkas@migpolgroup.com

2. Case in point: Galina Meister Facts: Plaintiff - Russian national, 1961, Russian degreee in engineering recognised by Land Defendant – Speech Design Career Systems Refusal to interview as job applicant: 1st application to ad 5 Oct 2006 Rejection 11 Oct 2006 2nd application to repeated ad 19 Oct 2006

3. 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 BUT Domestic 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?

4. 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? comparator causal link How to establish missing elements? Can they be established w/out info from employer?

5. 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 information 2. 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)

6. 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

7. Appraisal of AG Opinion • Fails to distinguish G Meister from Kelly • Privacy v equality rights test in light of relevant EU directives? • Access to information in a way that would respect 3rd party’s privacy rights: redacted info or statistical info? • Not the right questions asked? • 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?

8. Flawed interpretation of Kelly Kelly is a man relying on sex discrimination law argued on ETD and BoPD ?: access to UNREDACTED info, namely qualifications of other applicants No entitlement to information on such qualifications that would reveal 3rd party’s personal identity A refusal of disclosure by defendant ‘could risk compromising’ directive’s objective Access to info can be affected by EU law re confidentiality RESULT: REDACTED INFO ACCESSIBLE anyway

9. 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?

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