Untangling the Application of the EU Equality Directives at National Level: A Bottom-Up Approach

Abstract

Several EU-wide reports have identified obstacles for the effective application of the Race Equality Directive (‘RED’) and the Framework Equality Directive (‘FED’) at national level, but they do not explain why these obstacles arise. This paper seeks to provide additional tools to understand what may be the causes for the limited application of those directives at national level. On the basis of the theory of the ‘social working of law’, developed by Griffiths, I present an analytical framework to explain why people follow anti-discrimination law – or not – and which choices they make when they suffer discrimination. I argue that the RED and the FED are mainly based on individual enforcement. Therefore, the proposed framework analyses the decision-making procedure of individual victims of discrimination, from the moment they suffer discrimination till they decide to bring a claim. It identifies the main factors playing a role in victims’ decisions, the barriers they may encounter in accessing the legal system and the role played by advice-providers, like equality bodies or NGOs. The paper also considers the limitations of such a framework for tackling the problem of institutional discrimination.