INDIRECT DISCRIMINATION BY ASSOCIATION IN EMPLOYMENT RELATIONSHIPS
INDIRECT DISCRIMINATION BY ASSOCIATION IN EMPLOYMENT RELATIONSHIPS

Summary/Abstract: Considering the European norms contained in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, the Charter of Fundamental Rights of the European Union, and Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (2006), the Romanian legislator defined and prohibited, through the Labour Code (Art. 5), discrimination in employment relations. Direct discrimination represents any act or deed of distinction, exclusion, or preference based on one or more criteria regarding race, citizenship, ethnicity, color, language, religion, social origin, sex, sexual orientation, disability, political or trade union affiliation, which aims at or results in the denial, restriction, or removal of the recognition, enjoyment, or exercise of the rights provided for in labor legislation (Para. 3). Indirect discrimination represents any apparently neutral provision, action, criterion, or practice that has the effect of disadvantaging a person compared to another person based on one of the criteria listed in the case of direct discrimination, unless that provision, action, criterion, or practice is objectively justified by a legitimate aim, and if the means of achieving that aim are proportionate, appropriate, and necessary (Para. 4). Discrimination by association consists of any act or deed of discrimination committed against a person who, although not belonging to a category of persons identified according to the same criteria as in the case of direct or indirect discrimination, is associated or presumed to be associated with one or more persons belonging to such a category (Para. 6). Therefore, unlike direct discrimination, which exclusively concerns an employee or a group of employees through the employer's act or deed, indirect discrimination consists of disadvantaging one or more employees compared to others; it results from a comparison between them. That is, one or more individuals are disadvantaged relative to others, based on one or more of the criteria set out by the legislator. In the case of discrimination by association, the employee is not directly disadvantaged compared to other employees for one of the criteria established by law, but rather indirectly due to the connection they have with another person outside the employment relationship who possesses one or more of the vulnerabilities in question. An example of such indirect discrimination is provided by two rulings of the Court of Justice of the European Union (CJEU) - the Judgment of 17 July 2008 (Grand Chamber) in Case C-303/06 [Coleman], and the Judgment of 11 September 2025 (First Chamber). In both cases, the employees were discriminated against not because they themselves had a disability, but because of their children, who were under their exclusive care. The individuals concerned requested workplace accommodations to enable them to care for their children in difficulty. The conflict with their employers ultimately resulted in the dismissal of those employees. The cases reached the Court of Justice of the European Union (CJEU), which found that the situations constituted indirect discrimination by association, as detailed below

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