The Role of NGOs and Trade Unions in Combating Discrimination
Issued on 13/11/2009
MPG contribution to the conference report on 'The role of NGOs and Trade Unions in Combating Discrimination' which took place in Budapest from 25-26 June 2009
MPG's Deputy Director, Isabelle Chopin, was invited to the Annual thematic conference on non-discrimination issues in the EU as keynote speaker to speak on how the NGO community and trade unions can help to make anti-discrimination rights effective, and their role and needs to achieve this. Her contribution was included in the final report of the conference available to download in English, French and German.
Making non-discrimination rights effective
There are many different ways of making anti-discrimination rights effective and it is certain that both NGOs and trade unions have a crucial role to play. To that end, there is a serious need for enhanced cooperation between trade unions and NGOs. However, and in advance, they have to get to know each other better, to know how each other functions and know each other’s programmes, priorities and ways of handling situations of discrimination. Obviously NGOs and trade unions are different, and have roles that complement each other but they should not stop at their differences but start with their complementarities. NGOs and trade unions need to identify their good (and bad) practices and set up joint activities on all grounds of discrimination and on strategic proposals. Similarly it is essential for both to work together with the national equality bodies at local, regional and national level.
An efficient way of making antidiscrimination rights effective is litigation. Although NGOs and trade unions are often best placed to initiate complaints of discrimination, they are very often not able to do so because they lack human or financial resources. Also, in order to be able to litigate, both NGOs and trade unions must have legal standing: the right to initiate a lawsuit in court. Even though the status of legal standing is a right enshrined in both EC directives, in many Member States it is made conditional. National governments should therefore make sure that these conditions are not too restrictive.
In addition to initiating and supporting individual complaints in court, trade unions and NGOs can make use of other procedural tools to advance non-discrimination rights, such as collective action and class action. In order to help clarify concepts deriving from antidiscrimination law, trade unions and NGOs should also become more strategic in their casework and cooperate on strategic litigation. The difference to ‘normal litigation’ is that strategic litigation focuses primarily on law or public policy reform rather than on an individual’s interests.
Victims of discrimination need to be able to bring evidence pointing towards the possibility of discrimination. Only if sufficient evidence of discrimination is available can the burden of proof be shifted to the alleged perpetrator. To find the necessary evidence, NGOs and trade unions should use the practice of situation testing more widely. This is a tool to prove discrimination or uncover systemic discrimination and can help to detect discriminatory practices, for example in recruitment procedures. Although situation testing is rarely legally recognised, it has been accepted as a proof by courts in some countries. Situation testing needs to follow a strict methodology to avoid bringing a provocative element, such as incitement to discrimination which may lead a court to dismiss the test.
Making anti-discrimination rights effective is obviously a matter of law. However, law has its limits and social policies can efficiently remedy some of the existing gaps. In addition, targeted support to NGOs and trade unions is crucial. National governments should take responsibility to ensure sufficient funding is provided to trade unions and NGOs fighting discrimination. Structures for effective dialogue with NGOs and trade unions at national level are important as is the possibility for NGOs and trade unions to monitor and report on the implementation of nondiscrimination law and policies. It is also fundamental that national governments continue their efforts to disseminate information on nondiscrimination rights and support NGOs and trade unions in their information campaigns. To build their capacity further, NGOs and trade unions should be supported to facilitate training on antidiscrimination in the national language, including training for trainers from NGOs and trade unions. Similarly, the European Commission should continue funding projects dedicated to national NGOs and trade unions and also to those transnational projects, which enhance cooperation between NGOs and trade unions from different countries.
Isabelle Chopin, MPG