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HARALD CHRISTIAN SCHEU CYIL 5 ȍ2014Ȏ
prohibition of discrimination applies to conditions for access to employment, to self-
employment or to occupation, including selection criteria and recruitment conditions.13
The standard equipment of EU anti-discrimination directives includes a definition
of direct and indirect discrimination (including the definition of harassment), the
admissibility of affirmative action (positive discrimination) and the principle of the
reversal of the burden of proof. Finally, EU directives also regulate how potential
victims of discrimination shall be assisted in judicial or administrative proceedings.
3. The general social background
The character of European anti-discrimination law has been very aptly described by
a labor court in Berlin who, in one of my favorite cases, decided on the discrimination
of a dental assistant. It was because of her Muslim headscarf that she had been rejected
by the employer.14 Obiter dictum, the Berlin court explained to the parties that anti-
discrimination law has to be understood as an educational program for the whole society
that aims to discourage contracting parties from discrimination against minorities.
According to the Berlin court discrimination law deals with the fundamental problems
of mankind, which include xenophobia, racism, etc., whereas the aim is the cultivation
of social relations and the gradual elimination of undesirable social phenomena.
On the other hand, there have also been very critical voices which perceive EU
anti-discrimination law as a risk to the proper functioning of the legal relationships
between employers and employees or service providers and customers. More dramatically,
some authors have even been talking about the elimination of freedom of contract or
liberty as such. With respect to what has been said by the Berlin court about societal
education, it has to be acknowledged that anti-discrimination law as a very intense
form of social engineering may also lead to the re-education of the whole society in
line with certain ideals of the elite.
It is certainly not the purpose of this paper to solve these legal-political or ideological
conflicts or to closer analyze the arguments in favor of one or the other position. It may
suffice to note that if anti-discrimination law, respectively its exponents at the European
and national level, attempt at fighting, among other things, racism, anti-Semitism or
so-called homophobia, the tribunes of a sports stadium, soccer fields and the players’
cabins can be seen as an ideal social laboratory.15
A certain dilemma lies in the fact that the great ambitions and social pathos
of anti-discrimination law somehow contrasts with the relatively small number of
13 See Article 3 of Directive 2000/78/EC.
14 55 Ca 2426/12 (judgment of the Labour Court Berlin of 28 May 2012). For a brief commentary see
Scheu, H. C. Status a ochrana náboženských menšin. In: Scheu, H. C., Kříž, J., Děkanovská, K. (eds.)
Právní postavení náboženských menšin, [The legal status of religious minorities] Praha, 2013.
15 See the publication of the EU Agency for Fundamental Rights „Racism, ethnic discrimination and
exclusion of migrants and minorities in sport: a comparative overview of the situation in the EU”,
which was published in 2010 ( available at:
discrimination-and-exclusion-migrants-and-minorities-sport-situation). See also Gasparini, W., Talleu,
C. (eds.) Sport and discrimination in Europe, Council of Europe Publishing, 2010.