Indirect discrimination occurs in cases where the same treatment is applied to everyone, but it affects certain people in a worse way.
Indirect discrimination is where a seemingly neutral practice, policy or rule that applies to everyone, has a worse effect on, or consequences for, some people as compared to others, due to their particular characteristics (also called protected characteristics).
However, even in cases where there is a negative effect or consequences, it might not result in discrimination, if the treatment is justified. To prove the justification, it must be shown that there is a legitimate aim to a certain practice (a real need) and that the practice is proportionate to that aim. Namely, that it is necessary and that there is no alternative means available that is less discriminatory.
example Cases of indirect discrimination can include a job requirement to speak an official language at the level of a native speaker, which may put minority language speakers at a disadvantage, a requirement for a specific height for a job which may disadvantage women, or an employer’s requirement to meet a physical fitness test, which might work to the disadvantage of older people.
In practice, it is sometimes difficult to distinguish between indirect discrimination and allowed differential treatment.
example An employer may legitimately establish requirements related to official language proficiency for those employees who regularly work with clients. But the same requirement may be too high and constitute indirect discrimination on the grounds of ethnic origin, if established for persons cleaning back offices, where there is no regular communication with other people.
There are some differences between the definitions of indirect discrimination in the EU Directives and that contained in the Slovakian Anti-discrimination Act. The Slovak law, e.g., does not apply ‘collective approach’ (‘persons’) as the directives, rather applies an individual approach (‘person’). This might even lead to more favourable conditions for proving indirect discrimination although it is unclear, how this individualised concept will be applied. So far, case law on indirect discrimination in the judicial practice of Slovakian domestic courts has been very rare or almost non-existing.