The Concept of Shifting the Burden of Proof and the Mechanism in the Cases of Employment Discrimination
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Abstract
The principle of equality enshrined in the Art. 2 of the Labour Code of the Republic of Lithuania still remains a legal abstraction, because the declared equality on the grounds prohibited by the Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Occupation, is not fully materialized in practice. The Directives of European Council require to provide for specific rules on shifting the burden of proof from a plaintiff to a defendant in discrimination cases.
The Parliament of Lithuania has changed the law of Equal treatment implementing the rule of shifting the burden of proof in discrimination cases on the grounds of race, ethnicity, age, sex, disability only on June 17, 2008. Proving discrimination claims remains particularly problematic in many EU countries. In the vast majority of the cases there is little, if any direct evidence of discrimination.
The article addresses procedural and evidential issues involved in arguing or deciding a discrimination case. It discusses the case law on discrimination of the ECJ, ECHR and national courts, first in the area of sex discrimination, later under the two Article 13 Directives (Directives 2000/43/EC and 2000/78/EC) e.g Jenkins, Danfoss, Enderby, Igen v. Wong (G.B.), Nachova v Bulgaria (ECHR), McDonnell Douglas Corp. v Green (USA) and others. The article discusses the burden and standard of proof required, that are the prima facie factors, the difficulties that arise in establishing a prima facie case, and to start the mechanism of shifting the burden of proof to the employer. Though the traditional rule applies that the burden of proof is on the plaintiff to prove the case on the balance of probabilities, but in discrimination cases once the plaintiff proves a prima facie case, the burden shifts to the defendant to justify that his practice is justified.
The essential questions in the issue to present is to determine the quantity and quality of the facts which are necessary in order to shift the burden of proof from a plaintiff to the defendant. So the article also briefly introduces the following methods to prove a prima facie case: situation testing, statistical inference, questionnaire procedure. Finally, the possibilities to use them in the national courts are discussed.
The Parliament of Lithuania has changed the law of Equal treatment implementing the rule of shifting the burden of proof in discrimination cases on the grounds of race, ethnicity, age, sex, disability only on June 17, 2008. Proving discrimination claims remains particularly problematic in many EU countries. In the vast majority of the cases there is little, if any direct evidence of discrimination.
The article addresses procedural and evidential issues involved in arguing or deciding a discrimination case. It discusses the case law on discrimination of the ECJ, ECHR and national courts, first in the area of sex discrimination, later under the two Article 13 Directives (Directives 2000/43/EC and 2000/78/EC) e.g Jenkins, Danfoss, Enderby, Igen v. Wong (G.B.), Nachova v Bulgaria (ECHR), McDonnell Douglas Corp. v Green (USA) and others. The article discusses the burden and standard of proof required, that are the prima facie factors, the difficulties that arise in establishing a prima facie case, and to start the mechanism of shifting the burden of proof to the employer. Though the traditional rule applies that the burden of proof is on the plaintiff to prove the case on the balance of probabilities, but in discrimination cases once the plaintiff proves a prima facie case, the burden shifts to the defendant to justify that his practice is justified.
The essential questions in the issue to present is to determine the quantity and quality of the facts which are necessary in order to shift the burden of proof from a plaintiff to the defendant. So the article also briefly introduces the following methods to prove a prima facie case: situation testing, statistical inference, questionnaire procedure. Finally, the possibilities to use them in the national courts are discussed.
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Please see Copyright and Licence Agreement for further details.
