The regulations of the Mt. pertaining to the prohibition of discrimination have lost their force as of January 2004. Instead of these the general legal principle of observing the requirements of equal treatment were instated. The Egyb. law lays down the prohibition of discrimination for the legal system on the whole in general, sets down basic definitions, gives detailed reguations for certain given areas (employment, social security and healthcare, housing, education and training, the trading of goods and services), and names the sphere of procedures that can be initiated upon violation of equal opportunities. That is why several anti-discrimination guidelines have been adapted into the Hungarian rule of law.
In comparison to the previous regulations of the Mt, the Egyb. law expanded the prohibition of discrimination to other „characteristics giving reason for discrimination”, so below we would like to introduce the relevant legal regulations:
a) regulations that qualify as direct discrimination are the ones according to which a person or group receives adverse treatment in comparison to another, comparable person or group, due to that person’s or group’s real or alleged gender, race, nationality, whether or not the given person or group belongs to a national or ethnical minority, handicap, religious or ideological conviction, political or other affiliation, marital status, motherhood (pregnancy) or fatherhood, age, part time nature or fixed timeperiod of the person’s or group’s labour relations or other legal relations pertaining to labour, his belonging to an interestgroup, other situation, characteristcs, or peculiars, (and as new regulation) skincolour, mother tongue, health status, sexual habits, sexual identity, social origin, financial situation (hereafter: charactersitics).[1]
b) the following qualifies as indirect discrimination: the regulations that do not qualify as direct discrimination, seemingly correspong to the requirements of equal treatment, that puts the people or groups in possession of the characteristics specified under point (a) at a greater disadvantage as people or groups of comparable stuation.[2]
c) the following qualifies as harassment: behavior that injures human dignity and is in connection with the charactersitics of the victim stipulated under point (a) and its aim or effect is the creation of an intimidating, malignant, humiliating, or offensive environment.[3]
d) the following qualifies as illegal segregation: behaviour that separates certain people or groups from others based- according to objective deliberation without rational reason - on their characteristics stipulated under point (a).[4]
e) the following qualifies as retaliation: behaviour that causes injury, is aimed at causing injury or threatens with it the person objecting against, initiating a procedure or coopearing in a procedure initiated against the violation of the requirements of equal treatment.[5]
The force of the Egyb. law extends not only to labour relations, but – amongst others – also to other legal relations pertaining to work (e.g. legal relations established through contracts of work and agreements, contractuasl works, etc).[6] With respect to the field of employment the areas of priority have been established in detail, where the observance of regulations pertaining to the prohibition of discrimination should be paid special attention to. Thus the requirements of equal treatment are violated if direct or indirect discrimination is realised during the obtainment of work, especially through public job advertisement, in the hiring process, in the conditions of employment, in regulations connected to the legal relations of employment, or in regulations that are in connection with the regulations that facilitate the establishment of labour relations; in the course of establishment and termination of other legal relations pertaining to employment relations or labour; in connection with training prior to and during the course of labour; in establishing and ensuring working conditions; in the establishment of benefits based on other legal relations pertaining to employment or labour, especially in the establishment and assuring of wages; in the organisations of employees win connection with membership or participation; in the system of promotions; during the course of vindicatino of compansation and disciplinary responsibilities.
Besides the above mentioned in practice it can occur that due to specific special employment characteristics, a distinction has to be made between the employees but this must not mean the violation of the requirements of equal treatment. This can be the rational distinction based upon all relevant and legal conditions reviewed upon employment, if the nature of the work justifies it. Discrimination based on religious or other ideological conviction, national or ethnic affiliation, discrimination stemming directly from the mentality of the company, discrimination that is justified due to the content or nature of the given occupation and is based on proportionate and real employment requirements is also allowed.
With respect to the burden of proof the law gives more detailed guidance for the law enforcement – in comparison with earlier regulations. In procedures initiated due to the violation of the requirements of equal treatment the injured party not only has to prove state that he/she has suffered discrimination, but he/she also has to prove that he/she has been disadvantaged, and that at the time of the violation he/she was in real or by the perpetrator alleged possession of some of the characteristics (gender, racial affiliation. etc) listed in the law that enjoy protection. The burden of proof is only reversed after this has been carried out. After that it is the burden of the other party to prove that he/she has kept or, with respect to the given legal relation was not obliged to keep the requirements of equal treatment.[7]
Proving that someone has suffered disadvantages due to some form of behaviour is in our opinion relatively easy. Verification and proof of the party whose rights have been violated belonging to some minority group is harder to carry út. The first arising question is whether this requirement also stands even the other party does not dispute this. According to the wording of the law it can be presumed that the plaintive has the burden of prrof in this respect. It is our point of view that is the other party does not dispute the reality of this, then there is no need for proof in this matter.
The other question is how to prove that someone is in possession of the characteristics listed in the law. According to the effective regulations the person who calims to be the member of a national or ethnic minority group is to be considered as a member of ths given minority group. In the case of our Roma clients – solely due to the legal regulations metioned – this conditioncan easily be met. But what happens if someone – like the American boy who was mistaken for a Roma mentioned earlier – in reality does not belong to the given minority and does not want to claim to belong to that minority just so that he has no difficulties with respect to proving. This question can rightfully be asked in the case of people who are discriminated because of their sexual orientation. What kind of proof will be accepted by the courts to confirm these characteristics?