CYIL vol. 10 (2019)

HARALD CHRISTIAN SCHEU CYIL 10 ȍ2019Ȏ The aim of this comprehensive set of norms is to prevent discrimination on specific grounds and to ensure equal treatment for all individuals. The broad list of prohibited grounds of discrimination, which is enshrined in Article 21 CFR, reflects past experiences with minority discrimination as well as current challenges related to the emergence and functioning of diverse societies. Article 21 CFR and similar provisions synthesize the protection of both traditional and new minorities, including, for example, race, color, ethnic or social origin, language, religion, national minority, disability, age, and sexual orientation among the prohibited grounds of discrimination. In addition to the traditional tools aimed at equalizing disadvantaged groups and their members, e. g. in the fields of employment and access to services and education, anti- discrimination law has been gradually expanded by some new elements. This involved not only the introduction of new discriminatory grounds, such as genetic features, disability, or sexual orientation, but also the clarification of the concepts of direct and indirect discrimination and the issue of sexual and other harassment as well as the regulation of new procedural tools like e.g. the reversal of the burden of proof and, in some European countries, anti- discrimination actions in the public interest ( actio popularis ). The scope and concrete forms of positive measures or affirmative action remain the subject of dynamic interpretation by European and national judicial authorities. In recent years, growing attention has been paid to the protection of minorities against the so-called hate speech. In 2008, Advocate General Poiares Maduro very clearly summarized this new issue in his Opinion in the Feryn case, 1 in which he inferred from American academic literature that the public expression of discriminatory intent should be classified not only as simple words but as a speech act that actually constitutes discrimination. Thus, anti-discrimination instruments shall be used against verbal expressions of a discriminatory nature. Balancing the prohibition of discriminatory expressions against the freedom of expression is one of the key human rights challenges of the present, especially in the context of electronic forms of mass communication. Stereotypes and prejudices constitute a specific form of unwanted expression. Unlike spontaneous manifestations of hate or discrimination, stereotypes are deeply rooted in the collective consciousness, and it is difficult to grasp their particular basis. Over the past few years, there has been an increased focus on the link between stereotyping and the discrimination of minorities, notwithstanding the fact that almost no human rights document contains the terms “stereotype” or “prejudice”. In this paper, we will briefly highlight the legal framework for combating stereotypes and analyze the application of the stereotype concept within the frame of relevant case law on anti-discrimination. Our aim is to draw attention to the potential benefits of measures against stereotypes from the perspective of members of minorities, but we also want to point out conceptual and practical difficulties related to the legal fight against stereotypes.

1 C-54/07 Centrum voor Gelijkheid van Kansen en voor Racismebestrijding proti Firma Feryn NV (opinion of the GA of 12 March 2008).

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