Comprehensive amendment of the Anti-discrimination Act

On 14 February 2008 the Slovak Parliament passed the second amendment of the Anti-discrimination
Act (1) harmonising national law with the existing EU directives. The amendment was proposed by the
Slovak government, the Deputy Prime Minister for Knowledge Society, European Affairs, Human Rights
and Minorities. The first amendment from June 2007 represented a quick response to the reservations
about the existing Anti-discrimination Act expressed by the European Commission. This amendment is
a follow-up to the first one as both the ministries and civil society represented by NGOs called for more
systemic and substantial changes to the Anti-discrimination Act. The amendment is therefore the result
of joint discussions between the representatives of government and NGOs.

The amendment changed the structure of the Act, making it more understandable and its interpretation
clearer. One of the most important legislative changes is a clear statement of the grounds on which
discrimination should be prohibited in all areas covered by the Act. The grounds are: sex, religion or
belief, race, national or ethnic origin, disability, age, sexual orientation, marital status, family status, colour
of skin, language, political or other opinion, national or social origin, property, lineage or other status. In
comparison to the previous legislation, this provision broadens protection against discrimination, e.g. in
the area of social protection as well as in access to goods and services, in which there was a minimum
standard guaranteed by the Directives. As far as the ground of “sexual orientation” is concerned, the
amendment introduced a definition of sexual orientation and this ground became explicit for the area
of social protection, education, health care and access to goods and services. Before the amendment it
could only be claimed in the above-mentioned areas under the general clause “other status”.
Surprisingly, the amendment also established an unexplained restriction to the areas in which
discrimination should be prohibited, as the new wording leaves out housing and social advantages,
allegedly because there is no definition of housing and social advantages in the existing legislation.
The second amendment finally defines an exception for a genuine and determining occupational
requirement which complies with both the Racial Equality and the Framework Employment Directives.
The amendment also harmonises the Slovak anti-discrimination legislation with Directive 76/207/EEC
and Directive 2004/113/EC on equal treatment between men and women in access to and supply of
goods and services. The provision on shifting the burden of proof has been improved, making it clear that
the claimant before the court should indicate the facts from which discrimination may be presumed. The
original wording used the expression “adduce evidence” which could be interpreted restrictively, putting
the claimant into a disadvantaged position.

The most discussed and most criticised provision refers to positive measures, which is a very sensitive
topic politically in Slovakia. In October 2005 the Constitutional Court declared the provision on positive
measures linked to disadvantaged people of certain racial and ethnic origin to be unconstitutional. The
newly proposed provision reflects the decision of the Constitutional Court and introduces very specific
examples of temporary positive measures intended for the elimination of disadvantages linked to racial
and ethnic origin, national or ethnic minorities, sex, age and disability, e.g. creating equal opportunities in
access to employment and education through special preparatory programmes, spreading information,
and other measures.

Nevertheless, the former Minister of Justice and current Member of Parliament, who initiated the
proceeding before the Constitutional Court in 2005, insisted that introducing measures according to racial
and ethnic origin was unconstitutional. He therefore suggested that the reason for positive measures
should instead be social and economic disadvantages. Finally, the Parliament adopted the following
grounds for introducing positive balancing measures: elimination of social and economic disadvantages
and disadvantages linked to age and disability. The temporary measures can only be introduced and
applied by state agencies.

Along with the amendment of the Anti-discrimination Act, the Act on the Slovak National Centre for
Human Rights was revised. The Slovak National Centre for Human Rights, which fulfils the role of a national
equality body, was granted new competencies, which amount to conducting independent surveys
related to discrimination and preparing and publishing independent reports and recommendations on
issues related to discrimination. The law became effective as of 1 April 2008.