There are certain situations when it is permissible to choose a person with certain characteristics for employment and access to goods in services, including housing. If there are good reasons to do so, it will not be considered discriminatory where preference in such situations was given to a person of a particular age, sex, ethnic origin etc.
Necessary requirements
There may be certain situations where the nature of a particular job or the provision of goods and services requires a person (an employee or a client) to possess particular characteristics. In such case the employer or the service provider is required to show that he/she really needs to deal with a man or a woman, a person of a certain age or ethnic background in the particular situation. This exception is known as genuine requirement and if there are good reasons for such selectivity, it is not considered discriminatory.
For example, French labour law allows differential treatment in the workplace when it is an essential and determining professional requirement, provided that the aim is legitimate, and that the requirement is proportionate to that aim.
example If the owner of a Chinese restaurant wants to show his/her restaurant is authentic, it may justify the hiring of people of that ethnic background as cooks or waiters. A shelter for women who are victims of domestic violence may also justify employing women in the shelter if these victims have suffered at the hands of their male partners. A theatre performance may also require characters of a certain age.
In some cases, differences in treatment based on certain grounds are mandatory.
example The law prohibits young employees (less than 18 years old) from working during the night.
Sufficient reasons
An employer or service provider must give sufficient reasons why a person with particular characteristics is required for the job, otherwise the prohibition of discrimination will be violated. For such requirements to be proportionate, justification must be given for each particular position.
The European Court of Justice explained that the concept of a “genuine and determining professional requirement” refers to a requirement that is objectively dictated by the nature or conditions of the professional activity in question. It cannot cover subjective considerations, such as the employer’s willingness to take account of the customers’ particular wishes.
example An employee was dismissed from her job solely because some clients complained that she wore the Islamic headscarf. This was not considered to be an essential and determining professional requirement and the employer was convicted for discrimination. However, an employer can prohibit employees to wear religious signs in order to pursue a policy of political, philosophical and religious neutrality, as long as this measure only concerns employees who are in contact with clients.
example An employer cannot just say that his or her clients are racists, and, therefore, he or she does not hire black people. Where the owner of a Chinese restaurant wants to show his/her restaurant is authentic, he/she cannot then justify hiring only Chinese accountants.
Read more about discrimination in employment or the provision of goods and services.