The Public Defender of Rights issues recommendations for lawyers representing victims of discrimination
22. 10. 2019
This year marks the 10th anniversary of the time when the Anti-Discrimination Act entered into force and when the Defender was also given the role of the national equality body pursuant to the European Union legislation. Since the Defender lacks the power to represent victims of discrimination in court, lawyers play the key role in this respect. Therefore, the Defender has prepared a document to help them with this task. In addition to recommendations and a summary of specific cases that the Defender referred to the Pro Bono Aliance to arrange for legal representation, the text further includes an analysis of a survey focusing on the assessment of the lawyers’ experience with representing victims of discrimination.
“I am aware that representing victims of discrimination may be very difficult. That is why I greatly appreciate the work of those attorneys who are, nonetheless, willing to represent victims of discrimination in court and help them protect their rights. And I have the utmost respect for lawyers who are willing to accept this uneasy task in pro bono cases,” says the Defender, Anna Šabatová.
“This year marks the 10th anniversary of adoption of the Anti-Discrimination Act. On this occasion, I would like to look back at previous cases concerning discrimination that were referred by me and my predecessor to the Pro Bono Aliance to arrange a pro bono legal representation. However, it is just as important to think about the future and further work on providing the victims of discrimination with the best possible assistance. This is why I have decided to prepare this recommendation that should help lawyers in representing victims of discrimination in court,” explains the Defender, Anna Šabatová.
The present recommendation is not, nor can it be, an exhaustive list of instructions on how to represent victims of discrimination in court. The topic is too vast, individual disputes differ greatly and there is little available case law to rely on. Therefore, the recommendation is more likely to serve as the first step on a path towards effective representation of victims of discrimination.
The recommendation was presented at a professional workshop in Prague on 23 September 2019. The Defender has sent the recommendation to the Czech Bar Association, selected lawyers and non-profit organisations.
The main points of the recommendation are as follows:
- Try to resolve discrimination disputes amicably. In view of the risks entailed in court proceedings (duration, costs, uncertain results etc.), settlement with the adversary will often be the most effective solution for the client. In discrimination lawsuits, there usually is enough room for negotiations with the other party and the disputes are quite often resolved amicably.
- Use multiple sources when preparing your arguments. The Anti-Discrimination Act leaves a considerable leeway for interpretation and arguments. Moreover, given the lack of case law concerning discrimination, it is also necessary to use some of the wide range of other relevant sources.
- Pursue claims for pecuniary compensations for intangible damage. Experience has shown that courts are hesitant to grant pecuniary compensation for intangible damage. This, nonetheless, is a legal claim which should not be neglected by lawyers. Although courts sometimes consider this a subsidiary remedy, lawyers should strive to overcome this line of interpretation because it is not in accordance with the EU law. Indeed, the penalties for violation of the prohibition of discrimination should be effective, proportionate and dissuasive; that can hardly be achieved without granting compensation for intangible damage.
- Use audio and video recordings as evidence. Since discriminatory conduct often only takes an oral form, audio or video recordings may prove to be of paramount importance. If such recordings are made in accordance with the law and the relevant case law (e.g. excluding recordings of strictly personal expressions), their use in civil litigation is usually permissible.
- Draw attention to the shared burden of proof. Pursuant to Section 133a of the Code of Civil Procedure, which deals with sharing of the burden of proof, the adversary has to prove that the unequal treatment that occurred in the case is in no way related to the discrimination ground invoked. Lawyers should therefore draw the court’s attention to this provision. At the same time, it is advisable to try and predict how the adversary will defend itself.
- Be considerate to the judge during the court proceedings. Discrimination disputes may be quite challenging for judges because, in view of their immense workload, they do not often encounter such cases. This opens a large space for lawyers to argue and present the case to the judge in a comprehensible manner. It is thus necessary to make an extra effort in preparing persuasive written pleadings and convincing presentation of the case during oral hearings.
- Co-operate with other entities as required. Discrimination disputes may be very complicated and often require an interdisciplinary approach; a single attorney might therefore not be able to succeed. Especially co-operation with other entities, be they your colleagues, non-profit organisations or the Public Defender of Rights, may prove very useful. It is always beneficial to establish new contacts in the professional community.
- Communicate with the client in an effective and sensitive manner. Victims of discrimination differ but what they have in common is that they are in a particularly difficult and psychologically demanding situation. Lawyers should therefore approach them with a great empathy and respect for their needs. It is useful to develop soft skills in this regard, including the ability to communicate effectively.
- Be prepared to communicate with the media. Discrimination disputes may be socially controversial and therefore attract media attention. Lawyers should be prepared to face this attention (for instance, it is useful to undergo a media training). They can then decide together with the client on how to react to the potential media presentation of the case.
- Expect that discrimination disputes are quite demanding. Representing victims of discrimination is not an easy task and lawyers may find discrimination disputes both professionally and personally demanding, as well as time-consuming. Bear this in mind when accepting this engagement and allow yourselves a reasonable amount of time for preparation.
- Educate yourselves in the area of anti-discrimination law. Anti-discrimination law is a complicated and dynamically developing area. Ongoing education may thus facilitate the work of lawyers representing victims of discrimination. Educational events are regularly organised by the Public Defender of Rights in co-operation with the Pro Bono Aliance; the Academy of European Law (ERA) organises similar events abroad.
- Follow the activities of the Public Defender of Rights. The Public Defender of Rights has been active in promoting the right to equal treatment and prohibition of discrimination for 10 years. Over this period of time, the Defender has provided an opinion on numerous cases of discrimination that are published in the Defender’s Opinions Register (in Czech: ESO) on the Defender’s website. Furthermore, the Office of the Public Defender of Rights has published various materials (recommendations, surveys and conference proceedings) and also organised educational and public awareness events. All these materials, which are available free of charge, may provide useful information for lawyers.
Think strategically. In cases concerning discrimination, after consulting the client, it is important to carefully consider what can be achieved and how. Moreover, implications of discrimination disputes extend beyond the impact on the particular victim and may have more universal effects. Therefore, it is necessary to think about the dispute strategically and proceed with deliberation.