‘Equality bill will ensure victims of discrimination can speak out and seek remedy’

For years Helena Dalli was the face of the first minister pushing for equality at national level in Malta, and now she is the first European Commissioner in that same area.

Just before her nomination, Dalli had presented the Equality Bill, an important legislation facing a counter-offensive from Church school employers and evangelical associations who claim the new rules would rob faith schools of their ‘religious ethos’.

Dalli regrets not having had the opportunity to see both the Equality Act and the Human Rights and Equality Commission Act adopted while minister. Instead, in Brussels she has occupied herself with setting up a task force on equality within the office of the Commission’s secretary-general to focus on the mainstreaming of equality in procurement and funding programmes, recruitment, and all policies from the economy to the environment, to artificial intelligence to transport.

“It was in my plans for such a task force for government here, in that way every ministry will have the equality perspective mainstreamed into all its policies as an upgrade of the existing focal point system,” Dalli said, in an interview from Brussels on the current debate on the Equality Bill.

“Some recent calls by some quarters for a provision for conscientious objection to be introduced in the Bills concern me, as if this were to be included I know exactly who will be impacted the worst: women accessing SRHR (sexual and reproductive health and rights) services such as contraception or IVF treatments, and LGBTI+ people in general,” Dalli said.

One of the Equality Bill’s major advances in equality of access to goods and services concerns the prohibition to discriminate against people on a host of protected characteristics – creed or religion, or gender identity and political opinion, amongst others. This will allow employees to challenge – the onus of proving discrimination is on who alleges its existence – to challenge unreasonable requirements for job vacancies, for example, when these are not genuine.

Church schools believe the Equality Act could prohibit them from employing teachers of their choice, even on subjects in which faith itself is not a genuine requirement, for example, the  teaching of languages or sciences amongst others.

“Church schools do not benefit from a special status under EU and national law. Therefore they need to follow the principle of non-discrimination in recruitment, retention and promotion of staff as any other employer,” Dalli says.

“Malta transposed the acquis Communautaire into national law before joining the EU, which includes protection against discrimination in employment on the grounds of sex, racial and ethnic origin, religion or belief, age, disability and sexual orientation.”

Dalli said that exceptions in employment, as in the case of Church schools, are possible for genuine occupational requirements. “But here the exception is narrow to the individual roles performed and the burden of proof of such a requirement rests on the employer. Said differently, if a school claims that one needs to have particular characteristics to perform the role of a teacher in its institution, it may be challenged by an actual or prospective employee on the unreasonableness of certain requirements and the employer vis-à-vis the job in question and then it is for the employer to exculpate themselves from such alleged discrimination.”

The Bill also protects employees not just from direct discrimination, but also from indirect discrimination – that is, exclusion or differential treatment of prospective of current employees based on their private or family life.

Yet the law also states that it is not discrimination to enforce policies for teachers in schools to ‘represent’ the school’s ethos – although this cannot be enforced outside the school establishment.

“The interpretation of current national legislation is already aligned with what is stated here but since the concern was raised that the Equality Bill is stricter on the principle of equality than current legislation, we decided to spell this reasonable occupational requirement black on white.  This, to provide the guarantee that there will be no surprises in terms of the application of the Bill once it becomes law,” Dalli said.

The law also protects those who file a complaint on discriminatory treatment under the Equality Act.

“We know that there are way more cases of discrimination than there are complaints. In order to change that experience, and reduce the volume of discrimination in society, we need to ensure that victims feel that they can speak out and seek a remedy without risking a reprisal or damage to their careers,” Dalli said.

But the necessary aspect of the Equality Act, Dalli says, is that while laws on racial discrimination or incitement to hatred are only addressed under criminal law, the Equality Act is innovative by highlighting the discriminatory nature of such acts and providing victims with the right to pursue their case under equality legislation as well, including by lodging a complaint with the prospective Human Rights and Equality Commission.

Since being approved as Commissioner, Dalli has started working on the gender equality strategy which she had to launch in the first hundred days of the new Commission, as well as initi-ating the process towards a binding pay transparency measure, a Roma Inclusion Framework, an LGBTI+ Strategy and preparation for a new Disability Rights Strategy. After summer she will be presenting a Race Equality Action Plan.    

“COVID-19 upset everyone’s life and working methods. I had to move quickly and adjust the way my team and I work to ensure that  the EU keeps its sight on the persons that risk falling between the cracks in times like these – the elderly, persons with disabilities, women, ethnic minorities, the poor, the homeless, LGBTI+ people and others who may be on the margins of society,” Dalli said.

Now that her lifelong passion in the area of equality in Malta is extrapolated to the European level, Dalli still hopes that the protection and benefits that the Equality Bill will give to people living in her home country, can be understood by all. In the meantime, her decisions and legislative proposals are serving 500 million citizens.

“The experience of working with a team of Commissioners coming from 27 member states, with their different perspectives is indeed priceless, and an enriching and wonderful way to work. It means a lot to me.”