Discriminatory Job Awards

The ECJ has ruled, in Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn, that discriminatory job advertisements amount to direct discrimination.

Thus a job advert by a Belgian company stating that it did not employ 'immigrants' because it's clients did not like dealing with immigrants was capable of amounting to direct discrimination on grounds of race.

This overturns the UK position decided in Cardiff Women's Aid v Hartup in 1984, which held that a job advertisement falls outside the discrimination legislation and that an individual could not bring a claim based on such an advert. Until now, proceedings could only be brought by the CEHR - it seems now that individuals can bring claims as well.

The ECJ held (at paras 28 and 34) that a discriminatory job advert sets up a presumption that the employer's recruitment process is tainted by discrimination, and the burden of proof then shifts to the employer to show that its actual recruitment practice does not correspond to that stated in the advert