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Indirect discrimination established as an offence

The European Court of Justice (ECJ) has established that the legal protections afforded by the “indirect discrimination” provisions of the European Directive apply whether or not the victim possesses the relevant protected characteristic. Rather, it is enough that the victim suffered alongside those who were discriminated against on the basis of that characteristic.
The offence of so-called “associative discrimination” was established in the case of a non-Roma woman living in Bulgaria, Ms Nikolova, who experienced discrimination due to association with the predominantly Roma population of the district in which she ran her shop.
The case arose because the electricity supplier installed its meters on electricity poles around 4m higher than those in other districts. The district, and other Roma districts, had seen a large number of cases of illegal connections and tampering with meters. Ms Nikolova stated that the decision had meant that it was difficult for her to check her meter to find out how much electricity she was using. She also believed that the electricity company had applied higher charges to recoup the losses caused by electricity theft.
The ECJ held that she had effectively been discriminated against on the basis of her neighbours’ ethnicity. The question remains of what action could have or should have been taken by the electricity company, since protecting the electricity supply from theft is a reasonable objective.

Whilst this case relates to the provision of goods and services, it has far-reaching implications in other areas of life. It means that an individual may claim discrimination not on the basis of a protected characteristic (such as ethncity or sexuality), but on the basis that they have suffered or been disadvantaged due to association with a group possessing that characteristic.This has potential consequences for employers, amongst others.

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