News & Events

EU discrimination law protects individuals against associative indirect discrimination

Submitted By Firm: Addleshaw Goddard

Contact(s): Michael Leftley, Sarah Harrop


Amanda Steadman

Date Published: 10/6/2015

Article Type:

Share This:

The ECJ has held that a claim for indirect discrimination under the Race Directive could be brought by an individual who did not have the relevant protected characteristic where it could be said that had they "suffered alongside" the disadvantaged group. The same principle will apply in respect of other relevant EU Directives and protected characteristics. Whilst the Equality Act 2010 conflicts with this ruling, prospective claimants should be able to rely directly on the EU Directives before the UK Courts and Tribunals on the basis that the fundamental EU principle of non-discrimination is engaged (CHEZ Razpredelenie Bulgaria C-83/14).


Direct discrimination

The EU Race Directive prohibits direct and indirect discrimination based on racial or ethnic origin. The Race Directive provides that direct discrimination covers less favourable treatment "on the grounds" of race or ethnic origin. In Coleman v Attridge Law and another (Coleman) the ECJ held that the concept of direct discrimination was wide enough to include discrimination "by association". This means that claimants do not need to possess the relevant protected characteristic themselves. Instead, a claim can be based on the protected characteristic of someone with whom the claimant is associated. Although Coleman concerned disability discrimination, the concept applied across the other characteristics protected under EU anti-discrimination law. In the UK, the Equality Act 2010 provides that associative direct discrimination claims are permitted for all protected characteristics, save marriage and civil partnership.

Indirect discrimination

The EU Race Directive provides that indirect discrimination covers situations where a provision, criterion or practice (PCP) would "put persons of a racial or ethnic origin" at a particular disadvantage, unless the PCP can be objectively justified. On the face of it, the wording used suggests that the claimant must possess the protected characteristic in order to be able to pursue a claim. In the UK, section 19 of the Equality Act 2010 provides that claimants must possess the protected characteristic in question.

In this case the ECJ considered whether an individual had suffered indirect race discrimination by association. Although this case concerned the supply of services, the same principles apply in the employment context.


The Claimant ran a shop in Bulgaria in a district which was mainly populated by people of Roma origin. The Claimant was not of Roma origin. The Respondent supplied electricity to the district and had a policy of fixing electricity meters on poles around 6 metres off the ground. In other areas the meters were fixed at a much lower level (under 2 metres). The Respondent's rationale for the policy was that there had been tampering with meters in the district and unlawful connections to the electricity network.

The Claimant complained that the height of the meter prevented her from reading it and checking how much electricity she was using. She considered that her electricity bills were excessive and suspected that she was being overcharged to allow the Respondent to recoup the alleged losses that they were suffering in that district. She brought an indirect discrimination claim alleging that she had been discriminated on the grounds of her nationality.

The claim was upheld at first instance, albeit on the grounds of ethnicity rather than nationality on the basis that the Claimant identified herself with the Roma community in the district. The Respondent appealed and the appeal court referred various questions to the ECJ. The key question was whether a person presenting a complaint of indirect discrimination must possess the protected characteristic in question.


The ECJ held that indirect discrimination protection under the EU Race Directive applies to anyone who "suffers alongside" those of a certain ethnic origin, where the relevant treatment stems from a measure based on ethnic origin. In reaching this decision the ECJ concluded that the wording of the discrimination provisions in the Directive was not decisive and it was necessary to look at other sources to assist interpretation.

The aim of the Race Directive was to eliminate all discrimination on ethnic or race grounds and, as such, was an expression of the fundamental EU law principle of non-discrimination. In light of this aim, the Directive's wording should not be interpreted restrictively and should be construed as being designed to benefit all persons suffering less favourable treatment or particular disadvantage on one of the specified grounds. Here, the Claimant was not of Roma origin, but was associated with people of Roma origin. The PCP in question disadvantaged those of Roma origin and the Claimant was, in turn, disadvantaged by her association with them.

Although discriminatory, the treatment could potentially be justified. The ECJ said it was for the Bulgarian Courts to decide whether the practice could be objectively justified. In doing so, they would need to consider whether: (i) the measure went beyond what was appropriate and necessary to achieve the legitimate aim; and (ii) the disadvantage/s caused were disproportionate to the objective/s pursued.


This ruling has significant implications for UK discrimination law and means that the indirect discrimination provisions in the Equality Act 2010 are inadequate. However, the UK courts have held that EU Directives can be relied upon directly by claimants where the Directive gives effect to a fundamental right contained in the EU Charter, such as the principle of non-discrimination. This means that prospective claimants in the UK should be able to bring associative indirect discrimination claims by relying on the relevant EU Directive directly.

The decision could open the door for claimants to bring discrimination complaints which were once not available to them. For example, a policy of full-time work may have once provoked indirect discrimination complaints from women (who have traditionally had a greater need for part-time working arrangements due to childcare responsibilities) and/or disabled employees (where the disability negatively affected their ability to work full-time hours). Now, a male employee wishing to work part-time for childcare reasons may be able to argue that he has suffered associative indirect sex discrimination as a result of such a policy. Similarly, an employee who has a condition which makes it difficult for them to work full-time hours but who does not strictly meet the Equality Act 2010 definition of "disability" (e.g. if the condition is not "long-term") may be able to argue that they have suffered discrimination on the basis that they have suffered alongside disabled employees.

CHEZ Razpredelenie Bulgaria C-83/14


Find a Member

View or print a complete ELA member list »

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel