CYIL Vol. 4, 2013

THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW

2. The establishment of the rule on reversal of the burden of proof in the United States

The US Supreme Court ruling of 1973 in the case of McDonnell Douglas Corporation v. Green has become an important milestone in anti-discrimination law. 5 When the African-American human rights activist Percy Green applied for the position of a mechanic, which had been advertised by a company producing aircrafts, his application was refused by the employer. Before the competent authorities (e.g. before the Equal Employment Opportunity Commission – EEOC) he maintained that he had become a victim of racial discrimination. He invoked the provisions of Title VII of the Civil Rights Act, which, since 1964, prohibits discrimination in the field of employment based on race, colour, religion, gender and national origin. In the second part of its benchmark judgment, the Supreme Court concluded that the key issue of the case is the allocation of proof in a private, non-class action challenging employment discrimination. Before the court the employer refused the allegation that the applicant had been rejected on racial grounds, and he stated as an objective reason for the rejection the applicant’s alleged involvement in illegal activities. The Supreme Court held that it is primarily for the complainant to present prima facie evidence concerning his membership in a minority, his qualifications, and the fact that the employer continued to advertise the job offer after the rejection of a qualified candidate. If the complainant manages to produce the required prima facie evidence, it is for the defendant to demonstrate legitimate and objective reason why he rejected the applicant. Following the Supreme Court ruling these criteria have been strictly applied in cases of alleged discrimination. 3. Shifting the burden of proof in EU law At the end of the 1980s the ECJ had to solve the issue of burden of proof in a Danish case concerning alleged employment discrimination. In the Danfoss case 6 the Court addressed the problem of discrimination based on sex. The question arose before the domestic court whether and to which extent statistics documenting differences in wages for male and female employees may be considered as sufficient evidence of prohibited discrimination. In this situation the Danish court asked the ECJ specifically whether the burden of proof lies with the employee or the employer and also inquired about the importance of statistical evidence. It had already been established before the Danish court that male and female employees did the same work of equal value and that there had been a differentiation in pay. But who did the burden of proving that this differentiation was attributable to considerations determined by sex lie with? The ECJ dealt with this issue in a profound way. In its preliminary ruling, the Court found, first, that the remuneration system was, in that particular case,

5 411 U.S. 792 (1973). 6 Case 109/88, Judgment of 17 October 1989.