The Case for a Considered Hierarchy of Discrimination Grounds in EU Law

Abstract

The EU has legislation, based on Article 13 EC, against discrimination on the grounds of sex, racial and ethnic origin, religion or belief, disability, age and sexual orientation, but the protection provided is not the same for all these grounds. It can be said that this EU legislation creates a hierarchy of discrimination grounds, with racial or ethnic origin at the top, closely followed by sex, with religion or belief, disability and sexual orientation below this and age at the bottom. In this paper, I argue that this hierarchy is the outcome of political pragmatism, rather than of a deliberate consideration of the different grounds. I will suggest that a hierarchy is not necessarily wrong, but that a more considered decision should be made about which grounds need stronger protection. I propose an alternative way of deciding this question, using the distinction of suspect grounds made by the European Court of Human Rights under the ECHR.