Training Outline

3.5 Standard Lecture: Shifting the Burden of Proof (15 minutes)

• Using Transparency 59, explain to participants that under some legislation, a person who considers him or herself wronged because of discrimination has to produce evidence to prove that this has occurred. In some cases it is not too difficult to collect the necessary evidence, while in others it is virtually impossible.

  Ask participants to generate a list of evidence that might be easy to identify. This could include: job postings, advertisements and recruitment materials.

  Ask participants to generate a list of evidence that might be more difficult to attain. This could include situations that are more rooted in suspicions and mistrust rather than in tangible evidence.

  Emphasize that placing the burden of proof on the applicant or employee has been seen as one of the greatest obstacles to obtaining a fair and just result.

• Explain to participants that many countries have begun to shift burden of proof to the party who is alleged to have done the discrimination. In many jurisdictions, it now suffices for a person with a disability who alleges discrimination to establish, before a court or other competent authority, facts from which it may be presumed that there has been discrimination. After this, it is for the person who allegedly discriminated to prove that there has been no discrimination. This reversal in burden of proof makes non-discrimination law effective. The reversal places the burden of proof once an allegation has been made onto the party against whom discrimination is alleged.

  For example, a blind lawyer takes the exam for the diplomatic corps of her country and passes with one of the top three grades. However, instead of being appointed, she is bypassed and people with lower grades than hers receive postings. She files a suit alleging discrimination because she was passed over because she was blind. A reverse example would be a hospital that is sued by a surgeon who was fired by the hospital. The surgeon alleges that the hospital failed to accommodate his disability. However, his disability is alcoholism and the hospital fired him on the grounds that his disability was an endangerment to others.

  In closing, using Transparency 60, describe the paradigm shift that the European Union has set in place requiring countries to introduce laws or amendments to their laws to allow for a reversal of the burden of proof in employment discrimination cases involving direct or indirect discrimination.

  In 2003, all fifteen countries of the European Union (EU) were required to introduce laws or amendments to their laws or other legal instruments to allow for a reversal of the burden of proof in employment discrimination cases involving direct or indirect discrimination. All new Member States will also have to follow suit. This follows from a European Union law (a directive) adopted by the Council of Ministers in the year 2000. The Directive stipulates that disability discrimination cases are subject to a reversal of the burden of proof in favor of the employee or job applicant with a disability from 2003 onwards.

  Conclude this module by emphasizing that non-discrimination laws should explicitly refer to disability as a protected ground; that laws prohibiting discrimination should cover all forms of discrimination including direct and indirect discrimination, harassment, instruction and incitement; that reasonable accommodation is a key component of modern anti-discrimination legislation and should be provided; and that the burden of proof should be shifted to those against whom discrimination is alleged.