Sofia/Budapest, 16. 11. 2005, 17:51, (ERRC)
With ERRC support, a young Romani man has won a judgment by the Sofia District court, finding that the refusal of a private business to hire him constituted direct discrimination based on his ethnicity. The court has awarded him the full amount of compensation he sought for non-pecuniary damages -- the approximate equivalent in Bulgarian Leva of 300 Euro. The ruling, which is based on the Protection Against Discrimination Act, Bulgaria's comprehensive anti-discrimination law, is the first to find discrimination by inference, in accordance with the special rule of the shifting burden of proof in discrimination cases.
The facts of the case are as follows: In December 2003, the claimant, Mr. Metody Assenov, age 22, sought to apply for a job as a food production worker with the respondent, Lubimka Ltd. In response to a job advertisement in the paper, he placed a telephone call to Lubimka Ltd. to inquire about the terms and conditions to apply. An employee told him that there was no requirement other than to be a male younger than 30. She also told him, explicitly, that no Roma need apply, as no Roma would be hired. In February 2004, the job advertisement reappeared, and Mr. Assenov called again, making no mention of his ethnicity. He was invited for an interview. At the interview, the employees of Lubimka Ltd. treated him less favourably than other job applicants present by trying to ignore him, and by discouraging him from expecting to be hired. He had to insist to be interviewed, and to have his details recorded. He was told the job was too hard, and he was not likely to enjoy it, and that there were many other applicants. Several weeks later, upon inquiry, he was told that he had not been hired. He was not offered any explanation of the reason for the refusal.
In court, representatives of Lubimka Ltd. argued that their refusal to hire Mr. Assenov was not race-based, but for a legitimate reason, which was the claimant's lack of proper qualifications. The court did not consider this sufficiently established, as there was no evidence that Mr. Assenov had lesser qualifications than the applicants who had been hired. The court found that there was enough circumstantial evidence to point to a causal link between Mr. Assenov's ethnicity and Lubimka Ltd.'s refusal to hire him. In addition, the court found Lubimka Ltd.'s hiring practices to be non-transparent, lacking clear, pre-set, duly published criteria. The court held that it was impossible, therefore, to exclude the conclusion that selection was arbitrary and discriminatory. The court further ruled that this constituted sufficient grounds to presume that the claimant was denied a job because of his race, and to shift the burden of proof to Lubimka Ltd. to rebut the inference of discrimination. When representatives of Lubimka Ltd. failed to do so, the court ruled that discrimination had been established in the case. The court's reasoning includes express language on the principle of the shifting of the burden of proof in discrimination cases, in line with established case law in the European Union.
On the occasion of the ruling, ERRC Legal Director Dianne Post said: "The court's ruling in this case not only brings compensation to a Romani victim; it also importantly for the first time implements key elements of the EU anti-discrimination law acquis in Bulgaria."
Counsel for the claimant was the ERRC's Sofia-based consultant on race discrimination litigation, Margarita Ilieva, in cooperation with local "Romani Baht" Foundation lawyer Daniela Mihaylova. The judgment is not final.