From intent to pattern

Directive 2006/54/EC consolidated four earlier acts into a single instrument. It codified the definitions of direct and indirect discrimination, covered job classification systems and occupational pension schemes, and — above all — shifted the burden of proof onto the employer: if a worker makes discrimination plausible, the company must prove its absence.

Rulings that changed whole industries

In Test-Achats (2011), the CJEU struck down the exception that allowed insurers to differentiate premiums by sex, reshaping the entire industry. In Riezniece (2013), the Court clarified the protection of people returning from parental leave when performance is assessed.

Most discrimination is not overt — it is systemic

For intersectional discrimination, the reversed burden of proof and the concept of indirect discrimination are crucial, because most discrimination today is neither overt nor intended. In the experiment by Moss-Racusin and colleagues (2012), scientists assessed identical applications: when the candidate was called "John", he was judged more competent and offered a higher salary than an identical "Jennifer" — and both men and women rated them this way.

The same mechanism affects other axes. The audit by Neumark, Burn and Button (2019) showed that older candidates — especially older women — receive significantly fewer interview invitations. The study by Ameri and colleagues (2018) found that candidates who disclose a disability get markedly fewer responses. In none of these cases did anyone declare prejudice — it simply operated. This is the quiet breakthrough of 2006: since discrimination is usually impersonal and systemic, it is the system — not the victim — that must account for it.

In a world of the reversed burden of proof, the winner is not the one who is right, but the one who can prove it. Build your evidence trail before the court asks: risk groups, documentation and monitoring in one place.

Data and research:
• Directive 2006/54/EC; Test-Achats (C-236/09, 2011); Riezniece (C-7/12, 2013).
• Moss-Racusin et al., PNAS, 2012.
• Neumark, Burn, Button, Journal of Political Economy, 2019.
• Ameri et al., ILR Review, 2018.

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Read on: Act V · EU 2023 — pay transparency, the tool that closes the gap.