EU DISCRIMINATION LAW - MASTER EUROPEAN STUDIES FLENSBURG UNIVERSITY

Anti-discrimination Law in Italy

Its sources, its implementation, its critical points
Andrea Varriale 539246

Summer Semester 2011

Anti-discrimination law in Italy:

its basis, its implementation and its critical point s Table of content 1. Introduction 2. Italian anti-discrimination law and politics 3. The implementation of the EU Directives a. The implementation of the 2000/43 Directive b. The implementation of the 2000/78 Directive 4. Agencies combating discriminations: UNAR 5. Legislative gaps: a closer look a. Sexual orientation b. Religion c. The Roma question d. Women e. Youth 6. Italians perception on discrimination 7. The role of media 8. Conclusions

1. Introduction In this paper the core topic of anti-discrimination law in Italy will be set into the broader context of the related political debates and conflicts. In order to discuss them in a more accurate way, some Italian cultural traits, criminal records of immigrants and the influence of religion will be provided. I will focus more closely to those issues which seemed to me most revealing of the contradictions Italian society has to face, when it deals with discrimination issues on the legal level. Given this aim, the legal production will be considered as first, and in a rather extensive manner. In the following paragraphs, some highly controversial legal issues will be addressed, as they represent in my point of view at least a valuable connection between the formal and the emotional sides of antidiscrimination. The word discrimination will be used with the meaning given in the EU legislation on the matter: a less favourable treatment given to a person, on the ground of this persons 2

characteristic, be it gender, age, disability, sexual orientation, ethnic origin or religion. 2. Italian anti-discrimination law and politics The aim of this paragraph is to provide an overview of the national anti-discrimination law without considering for the moment the impact of the EU legislation. While there is little doubt that the two anti-discrimination directives adopted in 2003 (the 2000/43 and the 2000/78) encouraged Italy to legislate more in the field, looking at these national proposals as an autonomous or endogenous legal production has the advantage of shedding some light onto politicians (and arguably their voters) views on discrimination issues. As we will see, Italy does not have a comprehensive body of law on anti-discrimination. What is here referred to as the Italian anti-discrimination law is actually the collection of (some of) the various laws which were issued at different times, with different aims and with different impact. In order to better understand its evolution, the Italian legal production will be presented in chronological order. The first source of anti-discrimination law in Italy is art.3 of the Italian Constitution, which reads: All the citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinions, personal and social conditions.1 The article continues with a provision concerning what we today call positive action, which is maybe worth reporting: It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country. Art.37 of the Constitution adds: The working woman has the same rights and, the amount of work being equal, the same remuneration as the working man. The working conditions must protect her fundamental function in the family. However, the provisions contained in the Constitution set the rules for the secondary law, not for private subjects. As one may notice, sexual orientation is missing in art.3. It is disputed whether the expression personal and social conditions could cover this aspect too. While many LGTB organisations hold this view, this argument was used as we will see only once in Italian case law.

The Italian constitution is available in English here: www.senato.it/documenti/repository/istituzione/costituzione_inglese.pdf

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Many of the anti-discrimination provisions in Italian law are contained in the Labour law (Statuto dei lavoratori, workers statute) enacted in 1970.2 Issued at a time of intense (and not rarely violent) social and political conflict, this bill was mainly aimed at guaranteeing the workers the right to engage in social and political activities, without risking their job. Against this background, it was forbidden to discriminate workers (or to fire them) for their political affiliation or activity, for their religion, their race, their language or their sex (art.15). In 1977 a bulk of gender equality legislation on work was first issued. 3 This law prohibited any differential treatment (in hiring conditions, career advancement, task assignment, remuneration and the like) between women and men. Also marital status and pregnancy were included among the grounds for which discrimination was prohibited. As an exception, the law allowed differential treatment in hiring conditions in the fields of fashion, arts and entertainment, where this is necessary for the job or the performance (art.1). According to this law, night work for pregnant women (or whose child is up to 1 year old) is strictly forbidden. Furthermore, a working mother cannot be required to work at night if her child is less than 3 years old or if she cannot rely on the help of the childs father (art.5). Further provisions are established to guarantee the reversibility of pension to widows. In 1990 the National Commission for Equal Opportunities between Women and Men was established as a part of the Presidency of the Council of the Italian Government. Its task is to suggest legislative measures, and to coordinate the action of the different ministries in order to realise parity between women and men. Further action for the promotion of gender equality was taken in 1991. Named positive action for the achievement of men-women parity in labour, the law focused in advancing womens position with dedicated fiscal regimes, training programmes and other incentives aimed at a bigger and more stable inclusion of women in the labour market.4 An anti-discrimination criminal law (fighting discrimination based on race, ethnic origin and religion) was passed in 1993 (the so-called Mancino law).5 This law established the punishments for the diffusion of ideas based on racial hate, membership of neo-fascist
Law n 300 of 20.5.1970, available at www.servizi.cgil.milano.it/ARCHIVIO/2008/1/19700520_Legge_300.pdf 3 Law n 903 of 9.12.1977, available at www.uniroma2.it/cgil/ccnl/legge1977903.htm 4 Law n 125 of 10.4.1991, available at www.servizi.cgil.milano.it/ARCHIVIO/2008/2/19910410_Legge_125.pdf 5 Law n 205 of 25.6.1993 www.governo.it/Presidenza/USRI/confessioni/norme/dl_122_1993.pdf
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organisations, and violence based on racial or nationalistic ideas. Additionally, it set these grounds as an aggravating circumstance of common crimes (the penalty for which could thus be increased up to one half). The original draft included sexual orientation among the grounds for discrimination. After facing harsh opposition in the Parliament, however, this provision was removed. Many LGTB organisations, think tanks and also some MPs have been asking for the extension of Mancino Law to acts of violence based on homophobic views.6 This view was largely in tune with the leftish intellectual galaxy, Mara Carfagna, current Minister for equal opportunities and member of Mr. Berlusconis party, being the most visible exception in the right-of-centre milieu. To this day, the advocates of the Mancino extension have not reached their goal. Another major source in anti-discrimination law comes from the migration law of 1998,7 which collects previously scattered legislation.8 This act also describes the procedure of a civil action which was later made available for the cases of discrimination contemplated in the EU directives.9 However, this law applies to non-EU nationals only. In 2002, a draft legislation named norms against discriminations on the grounds of sexual orientation was presented to the Parliament, but was never voted upon.10 It aimed at including sexual orientation as a ground of discrimination in a variety of older laws: the Labour law of 1970, the gender equality laws of 1977 and 1991, the law which implemented the 1966 UN convention against racial discrimination and the Mancino law of 1993. In 2003 the Labour law of 1970 was touched by the law implementing the two EU directives. It added handicap, age, sexual orientation and personal opinions to the grounds for which discrimination was forbidden in the labour law.11 As already mentioned, in the original formulation of the law the grounds were limited to political positions and activities, religion, race, language and sex. It is worth noting that the provision regarding sexual orientations has been introduced in the Italian legal order only with the adoption of European law. The expression still had not done its appearance in the code of criminal law.
http://uguali.wordpress.com/piattaforma-rivendicativa-lgbt/ Law n286 of 25.7.1998, available at www.camera.it/parlam/leggi/deleghe/98286dl.htm 8 Particularly the Martelli law of 1990 and the Turco-Napolitano law of 1998. 9 Art.4 of both implementation decrees. 10 To view the law proposal: www.antonellocabras.it/images/stories/PDF/2755.pdf?phpMyAdmin=P7A531vJBAthB%2Ca3p8ztB0hjmva 11 See art. 4.1 of the decree (n216 of 9.7.2003) implementing the EU Directive 2000/78
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In 2006, a law was passed to fight discrimination against disabled people outside of the working context. Much like the earlier legislation on gender equality, the law allows some certified agencies and NGOs to bring the matter to the court, if they have been expressly instructed to do so by the claimant.12 In 2009, a law was proposed to add prejudice on sexual orientation to the aggravating circumstances in criminal law. It passed the vote in the justice commission but was rejected by the parliament on the grounds of unconstitutionality (the issue will be discussed later).13 Other important provisions are provided by art. 14 of the European Convention for the Protection of Human Rights signed in Rome in 1950 and art.21 of the European Charter of Fundamental Rights (the non-discrimination article).14 Interestingly, the English formulation sexual orientations has been translated into Italian as tendenze sessuali (instead of the already used orientamento sessuale) which is seen with suspicion from the advocates of the LGBT rights.15 3. The implementation of EU Directives 43/2000 and 78/2000 The two directives mentioned in the title constitute the hard core of antidiscrimination law in Europe. While having many principles and formulations in common, the two directives differ largely as to their scope. The 43/2000, also called the race directive, is directed at fighting any kind of discrimination against people of a different race or religion. For example, they may not be discriminated on work, or in the supply of public goods, in housing, in their access to school and the like. While the target group of the directive is rather small, the fields where this discrimination may take place are numerous. Quite the opposite is true for the 78/2000 directive, which fights the discrimination of many possible target groups on a rather restricted field: employment. The two directives were first implemented on July 9th 2003, ten days before the deadline.16 Just one year later, a two-articles-long decree is issued to correct the wrong wording of both the implementing decrees (which confused sentence with measure and

Law n.67 of 1.3.2006, available at: www.parlamento.it/parlam/leggi/06067l.htm From the website of one of the proponents: www.paolaconcia.it/b/?tag=transfobia 14 For the Italian version: www.europarl.europa.eu/charter/pdf/text_it.pdf 15 See the 15.5.2002 proposal mentioned before. 16 The 43/2000 Directive was implemented with decree n.215 of 9.7.2003, while the 78/2000 with decree n.216 issued the same day.
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national organisations with labour organisations).17 Despite the changes brought were definitely minor, such mistakes are indicative of the rush and the lack of interest which characterised the approval of the decrees.18 a. The implementation of the 2000/43 Directive More serious concerns arose from the reasoned opinion which the European Commission issued in June 2007. 19
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By declaring that there had been an incorrect

implementation of the 2000/43 Directive, the Commission in particular pointed to: the laws failure in reversing the burden of the proof to the respondent, the insufficient protection provided against victimisation and the incorrect definition of racial harassment.21 Concerning the first issue, the decree 215, which first implemented the directive, only mentioned the possibility, for the claimant, to support ones accusation by bringing statistical evidence that indirect discrimination tends to take place in a certain sector. Despite facilitating the claimants situation to some extent, this provision did not substantially shift the burden of the proof as foreseen in the directive. The decree failed to prevent victimisation because it did not provide any legal instrument for the judge to do so. The judges power, in this direction, was merely to take into account [in a hypothetical later trial] that the discriminatory act or behaviour might constitute retaliation. As for the third point, the failure to correctly define harassment derives, in my opinion, from a mere imprecision in wording: the decree lists a series of adjectives (intimidating, hostile, degrading, humiliating and offensive, emphasis added) in order to define the environment created by a discrimination. In the Commissions opinion, these adjectives must be understood as alternatives rather than cumulate to a general, sufficient definition. In June 2008, the Italian Parliament put a remedy by modifying the enacting decree of 2003, on the three points raised by the Commission.22 In October 2009 the Commission closed the case, as it found that Italy has correctly transposed the directive.23

Law n.256 of 2.8.2004, available at: www.camera.it/parlam/leggi/deleghe/testi/04256dl.htm Report on Measures to Combat Discrimination, Country Report: Italy. Page 6. 19 EU action against discrimination. Activity report 2007-2008. Available at: http://ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=219&type=2&furtherPubs=no 20 MEMO 07/263, issued on 27.6.2007. Available at: www.diritto.it/pdf/24533_1.pdf 21 EC MEMO/07/263 (List of Member States to which a reasoned opinion will be sent), issued on 27.6.2007. Available at: www.lex.unict.it/eurolabor/documentazione/comunicati/2007/rapid270607c_memo.pdf 22 Law n.101 of 6.6.2008. Available at www.camera.it/parlam/leggi/08101l.htm 23 IP 09/1464 of 8.10.2009. Available through: http://europa.eu/rapid/searchAction.do
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b. The implementation of the 2000/78 Directive With the same decree used to modify the law implementing directive 2000/43, the Italian parliament corrected the 2003 implementation decree of directive 2000/78 (or at least tried to do so). The amendments followed pretty much those enacted for the 2000/43 Directive. The provisions regarding the shift of the burden of proof to the respondent and the protection of the victims against victimisation were addressed in exactly the same way. As for the definition of harassment, in this case it was not necessary to amend the list of adjectives (intimidating, hostile etc) because, oddly enough, it already was written as a list of alternatives (it ended with humiliating or offensive rather than humiliating and offensive, as in the other directive). The most interesting amendment, however, concerned the allowed discriminations with regard to hiring in police, military, prisons and first aid. In these activities, this law implicitly (but clearly) allowed discrimination on grounds of: religious beliefs, personal opinions, handicap, age and sexual orientation. Under pressure from LGTB groups, which protested against the supposed legality of dismissing applicants of such jobs on the ground of their sexual orientations, the whole sentence was removed. 24 Another source of concern was the absence, in the Italian legislation, of a provision which ensured the right to a proper accommodation to all types of disabled people. The implementation decree did not even mention it. This right is included at art.5 of the Directive, which reads just Reasonable accommodation for disabled persons. The 2008 amendment did not address the matter either. Exactly on the last point, the Commission brought an infringement procedure against Italy in April 2011. As of June 28th, no action has been taken from the Italian parliament. In conclusion, it seems fair to say that the Italian legislator has implemented the two directives without too much attention. This view is also suggested by the fact that the provisions of the EU laws were introduced singularly into Italian legislation, that is, no attempt has been made to unify the scattered laws concerning discrimination on the grounds mentioned in the directives. 4. Agencies combating discrimination: UNAR With the reception of the 2000/43 Directive, the Office for the promotion of equal treatment and for the removal of discriminations based on race or ethnic origin (UNAR) was created. In order to ensure it significant visibility and a certain financial autonomy, the
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www.arcigaymilano.org/crono/rs-dossier.asp?IDEvento=404

office was made a special agency of the Presidency of the Council of the Ministers. With a special decree, the Minister for Equal Opportunities (Ms. Mara Carfagna) was delegated the direction and supervision of the UNAR office. 25 Its mission is to: support the victims of discrimination in their legal actions, firstly through its contact centre; make inquiries to discover unreported cases of discriminations; promote positive actions in cooperation with relevant NGOs; provide the guidelines for the legal production of the Government on discrimination issues; promote studies and research, trainings and exchange of experience in order to elaborate effective guidelines for the fight against discriminations on race, ethnic origin or religion.26 It is difficult to assess the degree of independence enjoyed by the UNAR office. In support of the non independence position, stand the fact that 21 out of 26 of its officers and employees are chosen among the personnel of the Presidency of the Council. The remaining five positions, which may include experts prosecutors, are filled on an optional basis.27 However, a recent attempt of abolishing the Office suggests that it indeed enjoys some political independence. In February 2011, a group of five Senators, all belonging to the Northern League party,28 proposed that, starting from April 2011, the UNAR office be suppressed.29 On a later amendment, four of them proposed that the funds thus saved be used to finance the Teatro Regio di Parma foundation, which should use them for its Festival Verdi.30
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While this amendment has been rejected without being taken into

serious consideration, the reason which stood behind it can offer an alternative view on UNARs independence. As the website of ASGI (an association of lawyers, researchers and professors concentrated on immigration issues) states, the amendment was mainly introduced to please those who were frustrated by the activity of UNAR in some municipalities of the North. It has happened that the office brought mayors and other representatives to the court, due to discriminatory practices enacted by the municipalities where the Northern League party was ruling. Once again, while the outcomes of this move has only been that of capturing medias attention, its mere existence
The decree is available here: www.pariopportunita.gov.it/index.php/delega www.unar.it 27 Art. 3.1 and 3.2 of Decree of the President of the Council, issued the 11.12.2003. Available at : www.governo.it/GovernoInforma/Dossier/settimana_antidiscriminazioni_razziali/dpcm_01122003.pdf 28 Right wing, secessionist, xenophobic party, now in Government coalition with Mr. Berlusconis party. 29www.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Emendc&leg=16&id=00520455&idoggetto=006218 72&parse=si&toc=no 30 www.senato.it/japp/bgt/showdoc/frame.jsp?tipodoc=Emendc&leg=16&id=520467&idoggetto=621872 31 This party has chosen Verdis Va Pensiero chorus as the National Anthem of Padania (Northern Italy) and rejects the Italian national anthem.
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gives some credit to the statement that the degree of freedom the UNAR office enjoys is at least sufficient to act against a co-ruling party. The office does not take into consideration all the grounds of discrimination mentioned in Directive 2000/78 (the office was indeed created in response to the race directive n. 43). The office does not have the legal status to act instead of the claimant in trials concerning discrimination. However, it has a list of authorised organisations which are entitled to so, in virtue of their compliance to some criteria set by the UNAR office itself (e.g. they should be registered since one year at least, should be non-profit, have transparent cash flow registers and so on).32 These organisations may act in support or on behalf of the claimant, provided he or she delegates them the task with a written authorisation. Since the decree which listed these organisations has only been issued in April of 2010, no case law is available yet. The extensive 2010 UNAR report to the Italian Parliament provides some useful information to assess its work. From 2005, when its activities started, until 2010, the number of cases reported has remained very similar (714 and 766). However, the share of receivable applications has steadily and sensibly increased (from 32% to 70% of the cases reported), which shows an improving understanding of what the offices task is. For the whole 2005-2010 period, 40% of the cases were reported from the victims themselves, while an additional 20% from witnesses of the discriminatory behaviour. On top of that, circa 30% of the cases have been detected from the UNAR itself, while an additional 8% comes from partner organisations. As for the means used to contact the UNAR, circa 74% of the complaints were done over its multilingual call centre, 20% via its website, and the rest through its territorial agencies and partners. As for the effectiveness of the offices action, the data provided seem encouraging: for the cases started during the 2010 alone, 77% were solved within the 31 st December of the same year. Unfortunately, the report does not provide the average length of the cases, which would probably be a better indicator. 75% of the cases filed were solved with a conciliation procedure. About 20% of the cases is dealt with in courts. Another interesting aspect mentioned is the evolution of the kinds of discrimination enacted. The most impressive case is the fast rise of discriminatory behaviours through the media (from 2,5% to 20,2% of the cases reported), especially the internet. The next four most common fields are: public life (statements of politicians, aggressions on open
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The requirements and the list may be found here: www.pariopportunita.gov.it/index.php/registro-unar

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places) with 18%, public services and administration with 16%, work with 12% and housing with 9%. Three more remarks about this aspect: (i) only 3 people on 109 (total for the field media) reported of discrimination in TV programs, which has often been depicted as politically controlled and instigating to xenophobia; (ii) out of the 96 cases of discrimination in the field of public life, 50% were physical aggressions and 20% were xenophobic statements from politicians and (iii) most problems about housing come from the neighbours (42%), followed by renting (18%) and housing agencies (6%). 70,6% of the complaints regarded direct discriminations with and without aggression (based on racial prejudice).33 In conclusion, the typical profile of the UNAR applicant is as follows: middle aged (98,5% are between 35 and 65 years old), with family, employed, with significant education (72,7% have completed either high school or university). I found the comment on this typical profile to be quite puzzling: Normal people who, despite themselves, ended up being victims of unforeseen discriminatory behaviours. Now, despite the vaguely pitiful tone, it is striking that no critical remarks are done on the statistics provided. In particular, the doubt that this relatively reassuring portrait of the typical claimant might be due to the fact that precisely those falling within these categories (educated, with a job, with a family, not too old and not too young) are those who could better afford a conflict in a hostile environment is not even raised. In other words, and this is only my personal opinion, those who are more marginalised (less educated, without their own family, unemployed or underground workers) either do not dare to address the UNAR or do not know about it. This, in turn, statistically increases the share of those who enjoy a better position on the total population of those who contact the centre. In support of this view, two statistical data can be used (provided by the Report itself): (i) 99,1% of the claimants were legally residing in Italy when they contacted the office and (ii) the most numerous national group of claimants were Italians (27%), followed by Eastern Europeans and Balkans (23%) and Northern Africans (20%). Another relevant data comes from the EuroBarometer survey of 2009 already mentioned earlier: in Italy, only 25% of the interviewees said they would address UNAR for problems regarding discrimination, against a EU27 average of 35% (for their national equivalent, of course).

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Rapporto UNAR 2010, pages 10-32. Available at: http://93.63.216.212/unar/relazioni.aspx

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5. Legislative gaps: a closer look Significant gaps remain in Italian anti-discrimination law, even after the implementation of the directives. In particular, there is no criminal law provision aggravating violence on grounds of sexual orientation 34 and religions different than the Roman catholic one are somewhat disfavoured. 35 When relevant, some case law is provided. a. Sexual orientations As mentioned before, there is a gap in Italian criminal law concerning sexual orientations. This gaps gives the victims of aggression based on sexual orientation a less favourable position than, e.g. minors, elderly people, people belonging to different ethnic groups and disabled people. 36 Highly revealing of the political climate about the topic is the motion of unconstitutionality produced by some Italian MPs (including Mr. Buttiglione, former candidate to the European Commission, then rejected in 2004 by the European Parliament for his positions on homosexuality) to contrast a proposal to add violence based on sexual orientation in the penal code.37 This motion, claimed that the proposal would be a violation of the principle of equality before the law. Moreover, it claims that such a law would violate the requisite of exactness (tassativit or determinatezza) of criminal law because sexual orientations are subjective situations and choices relating to the private sphere, potentially mutable in time and not always easy to verify.38 Much to the annoyance of Ms. Carfagna, this gap still remains. Another aspect of discrimination often taken into consideration is the lack of a law allowing same-sex marriage or same-sex civil union. The issue was first raised in 1986 and, until today, more than twenty law proposals have been discussed in the Parliament, none of which eventually became a law.39 The resolutions and the frequent admonitions of the European Parliament helped raise interest on the matter in the political class. The discussion had its peak in the years 2006-2007, when the centre-left coalition issued a law
Rapporto annuale 2011 Amnesty International Italia UNGA A/HRC/4/19/Add.4, 15 Fvrier 2007. Report of the special rapporteur on [] racism [] on his mission to Italy. Available at: www.universalhumanrightsindex.org/documents/832/1076/document/fr/text.html 36 Art.36 law n.104 of 5.2.1992; art. 61.5, 61.11-ter and 609-ter of the criminal law. Available at: www.altalex.com/index.php?idnot=36774 37 www.guardian.co.uk/world/2004/oct/12/gayrights.eu 38Art.1 and 2 of Questioni pregiudiziali di costituzionalit{ seduta del 31 Maggio 2011. Available at: www.camera.it/_dati/leg16/lavori/odg/cam/fascicoli/20110615/20110615p2802.htm 39 The matter is extensively covered in: en.wikipedia.org/wiki/Recognition_of_gay_unions_in_Italy
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proposal on the matter (the so called Di.Co. law), which was approved by the Council of Ministers. The law however failed to be approved by the justice committee of the Senate. 40 Italy is with Greece the only EU15 country without legal provisions concerning civil unions or other forms of same-sex marriage. In catholic Ireland and Portugal, both of which fared worse than Italy in a 2009 Eurobarometer survey on popularity of same-sex marriage legislation,41 same sex union were introduced in 2010.42 In 2008, a homosexual couple tried to register at Venice town hall for the celebration of their future civil marriage. Facing the civil servants refusal to comply, the two challenged his decision at the tribunal of the same town. Their lawyers argued that the denial of celebrating their wedding contrasted with the already mentioned art. 3 of the Constitution, which states that no discrimination should be enacted on (among others) the ground of personal conditions. The judge argued that homosexuality falls within the scope of this definition. Furthermore, he argued, there is no law which prohibits same-sex marriage, this prohibition resulting uniquely from the oft-repeated husband and wife formulation in the civil code (art. 107, 108, 143, 143 bis, 156 bis and 231). Furthermore, the interpretation of art.29 of the Constitution (which defines family as a natural society) has been controversial with regard to same-sex marriage or civil union. The judge held the view that art.29 does not mention heterosexuality as a requirement to form a family. Given this potential conflict of laws, the judge forwarded the question of constitutionality (on the seriousness of which normal judges are called to give a first assessment) to the constitutional court. Unfortunately, there has been no sentence yet. 43 Another related sentence has been issued in 2010 (but published only on the 15th of June 2011), again from the Tribunal of Venice. In the verdict, the judge argued that the claimant had been mobbed on the workplace for his declared homosexuality and that this amounted to discrimination. The verdict raises interest because it is the first time that a person is condemned for abuses based on discrimination against homosexuals. In this case however, it was not the abuser colleagues to be condemned, but rather the employer. This was motivated by observing that the employer is required not to harm the dignity (art. 41 of the Constitution) and to protect the moral personality (art. 2087 of civil law) of the

From: Corriere della Sera, 8 Marzo 2007. Available at: www.archiviostorico.corriere.it/2007/marzo/08/Salvi_strappo_sui_Dico_solo_co_9_070308023.shtml 41 ec.europa.eu/public_opinion/archives/ebs/ebs_317_fact_it_it1.pdf 42 For a list of countries concerning LGTB legislation: en.wikipedia.org/wiki/LGBT_rights_in_Europe 43 The verdict of the Tribunal of Venice can be found here: www.altalex.com/index.php?idnot=45870
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employee.44 b. Women In 2010, the Global Gender Gap Report (a document issued by the Davos Economic Forum group), ranked Italy 74th in a list of 134 countries.45 The Global Gender Gap Index, which it measured, was composed by 4 sub-indexes: economic participation and opportunity; educational attainment; health and political empowerment. In a separate 47country-long list only including high income countries, Italy ranked 35th. As is made clear in the section dedicated to single countries, Italys main weakness in gender equality are in the fields of economic participation and opportunity and in political empowerment (in the other two indexes Italys result are over-average and show that substantial parity is achieved). For every 100 working man there are 70 working women, while if the average man income is 40.000$, womens equivalent value is 20.152$, just the half. In top-ranking positions (managers, officers, legislators), women constitute one third of the working force. In the parliament, 80% of the members are men, and the same is in the Government. In his life-long research project, the World Value Survey, Ronald Inglehart has developed a vast amount of questionnaires, in order to understand better the reciprocal influence of economic development and the evolution of social values from materialism towards post-materialism. One of the questions he used to measure the extent to which post-materialistic values were present in a given society was: [do you agree that] when job is scarce, men have more right to a job than women?46 Now, all this came to my mind when I read about a firms decision to fire only women. The decision was taken in the end of June, and it involves 13 working women of a engineering firm in which 30 employees used to work (among which only 12 are men). Reportedly, the managements justification of their women only choice was that womens salary was the second income in their respective families. By doing so, the firm argued that this treatment was meant to have a fair impact on those families affected by the dismissal.47 In terms of anti-discrimination policy, this accounts for a full direct discrimination, especially if the firms argument is as it seems to
Unfortunately, the official sentence has not been published yet. Here is an article from an authoritative newspaper: http://corrieredelveneto.corriere.it/veneto/notizie/cronaca/2011/16-giugno2011/discriminato-perche-gay-azienda-deve-risarcirlo-190882079667.shtml 45 The Report is available at: www3.weforum.org/docs/WEF_GenderGap_Report_2010.pdf 46 Modernization, Cultural Change and Democracy: The Human Development Sequence, Cambridge University Press, 2005 (co-authored with Christian Welzel), page 55 47 The article can be found here: http://milano.corriere.it/milano/notizie/cronaca/11_giugno_30/inzagodonne-licenziate-fiom-protesta-190986051519.shtml
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be based just on the assumption that that of the dismissed women was a second salary in the household. So far, the only public statement by the management has been that the dismissal of the women has been decided on objective reasons only. c. Youth Much like the one against women, the discrimination against young people in Italy mainly takes place in the economic field. In the opinion of many politicians and economists, both liberal and socialist-oriented, youth unemployment is (mainly) due to a huge disparity in the social protection policy. Traditionally, the Italian labour law tends to protect those who already have a job, to the expenses of those who are seeking one. For example, employers must demonstrate to have dismissed an employee for a just reason, if the employee decides to bring the matter to a court. While the employer may actually be forced to reintegrate the worker, most of the cases are actually solved through plea bargaining. According to economist Tito Boeri of Bocconi University, this is a clear sign that employers see the possibility of being forced to reintegrate the worker a realistic one, and prefer to reach an extra-judicial agreement with the worker. 48 According to his research, a firm which tries to fire an employee, but is eventually condemned to reintegrate him, loses (in average) the equivalent of 15 months of salary, plus circa 24 months of time (until the trial is over). Given these complications and expenses, often firms do not want to risk by hiring a new worker, fearing overwhelming difficulties in dismissing him or her, should the choice proof wrong. To cope with the situation, significant increases of freedom for the employers has been introduced from the mid-90s. Today, the quota of fixed-term of working contract has hit 15.2%.49 But how bad is the economic situation for the young people? The latest data available speak of 29.6% of youth unemployment (against 21.5% of EU27 average), compared to 8.6% overall national unemployment (against 9.6% EU27 average). These figures seem consistent with the view that older workers, who entered the labour market with a more favourable legal and economic situation, enjoy a significantly more favourable protection than youngsters do. But there are other causes, too. One of them is the discrepancy between the growing number of graduates (though still very low, 11.6% of the

Tito Boeri: I regimi di protezione dellimpiego in Italia, 2001. Page 3. Available at: www.frdb.org/upload/file/epl_boeri_garibaldi.pdf 49 ISTAT Flash report: occupati e disoccupati 2011. Page 7. Available at: www.istat.it/salastampa/comunicati/in_calendario/forzelav/20110701_00/testointegrale20110701.pdf
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workforce against a EU27 average of 23.2% in 2005) 50 and the stagnation of the tertiary sector. Another reason relies in a deep cultural trait consisting in seeing the pater familias as the main provider of economic security. It is interesting to note that this view is somehow consistent with if not one of the basis of the social protection given to the workers with permanent contracts and at the same time perpetuating the youngsters economic dependence on their parents. In other words, the Italian bamboccioni (mummys boys, those who still live with their parents up to their 30s) 51 are a by-product of the interaction between a widely accepted role of the family as a security provider and the objective difficulties faced by the young people in entering the labour market. d. Religion A factor which played a big role in the failure to combat discriminations based on sexual orientation is Italys catholic tradition. When topics such as same sex marriages are aired in mainstream media, Vaticans voice is always heard, and has a special appeal on catholic politicians. Besides this influence, Catholic Church holds a privileged position among religions in Italy: its marriages are legally valid; catholic religion (and no other religion) is taught in school (but pupils may decide not to take part in it); crucifixes are hanging in the majority of schools, hospitals, tribunals and other institutional buildings; official state ceremonies (e.g. solemn funerals) must be done according to the catholic ritual; (only) catholic priests are hired in the national army and prisons. From the legal point of view, this is due to the fact that the relationship between the Catholic Church and the Italian Republic are set in international treaties with the State of Vatican. 52 No other religion has a similar position. Interesting, in this sense, is the case of the crucifix brought before the European Court of Human Rights by Sole Lautsi, an Italian citizen of Finnish origins. In 2007 she complained that the crucifix hanging in her childrens classroom constituted a violation of her freedom and her husbands to educate their children according to their own values. Two years later, the court proved her right: it claimed that the exposure of the crucifix conflicted with the principle of secularism (which is mentioned in Italian constitution) and

Data from Eurostat, quoted in the economic newspaper Il Denaro. Available at: www.denaro.it/VisArticolo.aspx?IdArt=522997&KeyW 51 The expression was used by the former minister and EU official Tommaso Padoa Schioppa in 2007. www.corriere.it/politica/07_ottobre_04/padoa_bamboccioni.shtml 52 The so-called Patti Lateranensi, signed in 1929 by the Mussolini government.
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that children of other religions or non believers can be disturbed from it. 53 The sentence was explicitly opposed by the Vatican, the Government (which appealed it) and the catholic political parties. It had a very cold welcoming also from the main opposition party (which also has a significant catholic component). Two more years later, in March 2011, the court expressed itself again (following the Italian Governments decision to challenge its previous decision): it is not clear that the presence of a crucifix has an influence on the pupils. Thus, no fundamental human right has been violated. 54 It is perhaps appropriate to provide a few figures to better describe the situation: in 2009/2010, 83.5% of pupils attended religione cattolica in high school (students aged from 14-15 until 18-19), against an overall average of 90.0%. In Milan, 51% of the high school students chose not to attend these classes, while only 1.5% have done so in Campania, the region around Naples (the lowest region-based figure).55 Another related case is the one decided by the tribunal of Padua in 2010. In the case, the parents of a pupil attending primary school in the town complained that the school failed to provide alternative didactical activities for their daughter. According to the law, schools are obliged to do so, in case one or more pupils ask not to take part in the religione cattolica class. Instead, the school proposed that the girl, during the religion class, attend one of the other classes available in the school. The tribunal condemned the school for indirect discrimination (it used the definition and the provisions contained in the 2000/43 Directive).56 e. The Roma question According to Amnesty International, in 2011, Roma people still suffered discrimination in their right to schooling, housing, health care and employment.57 The topic is somehow complicated to treat from the legal point of view only, because their legal status depends on whether they hold Italian or EU nationality, or if they are third-country nationals (or stateless). In the latter case, immigration law will apply, which provides significantly less protection than the law applying to EU citizens. According to official estimations (no
53http://cmiskp.echr.coe.int/tkp197/view.asp?item=2&portal=hbkm&action=html&highlight=Italy%20|%20

Lautsi%20|%20crucifix&sessionid=73031594&skin=hudoc-en 54http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Italy%20|%20 Lautsi%20|%20crucifix&sessionid=73031594&skin=hudoc-en 55 The data are available in this research conducted by the Conference of Italian Bishops (CEI): www.chiesacattolica.it/cci_new_v3/allegati/4662/tav.1%20nazionali.pdf 56 www.meltingpot.org/IMG/pdf/tribunale_padova_ordinanza_30072010.pdf 57 Amnesty International, Rapporto 2011 - Italia (p.481).

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precise data is available yet), Roma and Sinti make up for 130-160.000 people in Italy (circa 0.3% of Italys population, one of the lowest percentages in Europe).58 Around 70.000 are Italian citizens, while the rest mostly come from the Balkan region, and increasingly from Romania. Those holding Italian citizenship face significantly less problems than the others, in particular because they are much more likely to live in their own houses since the 1970s. The most critical time arose in 2008, when a series of aggressions and murders was enacted by Roma people and Romanian citizens. The two terms (rom and romeno) have often been confused both in the media and in the political debate, which mainly drove the discussion on security matters. As a consequence of the interaction between these crimes, the speech confusion, populist tendencies and the amplifying role of media, emergency legislation was issued in 2008. This happened despite the fact that emergency legislation is only allowed in cases of natural disaster, catastrophes or other events that, on account of their intensity and extent, have to be tackled using extraordinary powers and means.59 For one year, starting from the issuing of the Nomad Emergency Decree, the local authorities of Rome, Milan and Naples could substantially derogate the standard provisions of law. The use of the word nomad may not be casual. According to different journalists and NGOs, this rhetorical choice insinuates the idea that those addressed by the decree are some different kind of people with substantially incompatible lifestyles. All its contradiction is shown in the preamble of the decree, which is addressed against irregular third-country citizens and nomads who have settled in a stable manner in urban areas (emphasis added).60 One of the provisions contained in the decree was to make a census of the camps and their inhabitants (in cases where no identity documents could be shown, the police took fingerprints). Many Roma people and NGOs reported of verbal abuse by the police during these operations. However, these were the results of the census: 167 camps, 124 of which illegal, hosting 12.346 people (of which 5.436 were minors). The Minister of Inner Affairs, with strong political stakes in the subject, stated that around 12.000 people [had] left the camps before census started. 61 During the emergency period some camps have been destroyed by the authorities on grounds of public security, while the promised houses and solidarity villages (an upgraded version of camps, with running water, electricity and
UNGA A/HRC/4/19/Add.4, 15 Fvrier 2007. Available at: see note 25. These conditions are set in Law n.225 of 24.2.1992. 60 Available at: www.gazzettaufficiale.biz/atti/2008/20080122/08A03712.htm 61 For an extensive coverage, see: OsservAzione EU Values: The Roma Migration Challenge Italy Report, May 2009. Available at: www.osservazione.org/documenti/ITALY%20REPORT_Daria%20Storia.pdf
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sanitation) were slow to start off. Eventually, the inflated cries for repatriation of nomads ended up in a handful of cases regarding some non-EU nationals (as we saw, a minority of the whole Roma population in Italy) with serious criminal records. A still unsolved case arose as a consequence of the destruction of a Roma camp in Milan. The town administration assured to provide housing for a group of 25 Roma families. Few months later, in December 2010, the mayor and vice-mayor decided to revoke this decision and to give priority to the Milanesi (citizens of Milan). In the words of the Minister for Inner Affairs (of the Northern League party), not providing council houses to these families was a choice of wisdom (thus suggesting that this choice avoided conflicts between the Italian and the Roma communities).62 On the matter, the Court of Milan instructed a case, arguing that the only difference between these Roma families and the other Italian families on the waiting list was their different ethnic origin. 63 As of June 28th, the case has not been concluded yet. 6. Italians perception on discrimination in Italy Italy has historically been an ethnically homogeneous country, despite the huge differences in the dialects that were spoken by the large majority of the population. (Tullio de Mauro, an authority in Italian linguistics, says that circa 2,5% of the population was actually able to speak Italian in 1861, when the country was first unified). Furthermore, Italy has always been a net exporter of migrants up to the 1980s, when the trend first reversed. This is to say that the challenge of living together with people from different countries is still a relatively new one for Italian people. In 2001, the number of foreign born in Italy amounted to 1.334.000, only to rise to 1.990.000 in 2005. Today, 7% of those living in Italy (equal to 4.235.000 people) were born abroad. 61.2% of them live in the north. It seems plausible to argue that this relatively rapid demographic change, united with a stagnating economy, has brought cohabitation problems with the non-Italian population. On another aspect, religion, the same reasoning can be followed. Officially, 88% of the people in Italy are Roman Catholic. 64 While only 36.7% of them regularly attend church, it is fair to imagine that this high and steady homogeneity has left Italians unprepared for the challenges brought by the arrival and the establishment of people with different
www.milano.corriere.it/milano/notizie/cronaca/10_settembre_27/maroni-niente-case-aler-rom-romenitriboniano-1703840306886.shtml 63 www.milano.corriere.it/milano/notizie/cronaca/10_dicembre_22/case-rom-procura-apre-fascicolodiscriminazione-razziale-comune-181128010796.shtml 64 www.corriere.it/Primo_Piano/Cronache/2006/01_Gennaio/17/cattolici.shtml
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religious beliefs. Against this background, it should not be surprising that, according to a EuroBarometer survey of 2009, Italians show more homogeneous circles of friends and acquaintances than the average EU27 citizen. (Less Italians than EU27 average citizens responded to be friend or acquainted with: non-Catholics, disabled people, people with different ethnic origin, homosexuals or Roma people). However, the percentage of Italians feeling that there is a strong discrimination against foreigners (71% v. 61%) and homosexuals (61% vs 41%) in their country is higher than the average European in his own country. 65 Of course, this only points to the fact that Italians are aware of discriminatory behaviours, and it says nothing about their moral judgement on that. In a similar EuroBarometer survey of 2008, Italians were often more conservative than the EU27 average when it came to having a homosexual as a neighbour (satisfaction quantified as 6.7 as compared to EU27 of 7.9) or a Roma (4,0 versus 6,0 in EU27). They were also less in favour of special training or social inclusion programmes for (in descending order): disabled, elder people, women, foreigners, non Christians and homosexuals than the EU27 average.66 7. The role of media It is not simple to evaluate how much media actively contribute to the creation of collective narratives on discrimination and how much they just reflect peoples views on the matter. Of all the grounds for discrimination mentioned so far, the most sensitive and emotional one has surely been that of ethnic origin. As has already been touched upon, the Roma/Romanian emergency has inflamed the public debate concerning their proper collocation in society. The spark has been a series of violent crimes executed by Romanians and Roma people in the fall and winter of 2007. It is extremely difficult to draw a balanced picture of the situation, not least because of the manipulation done by the political parties with stakes in security issues. However, a reliable study of Caritas Migrantes, an authoritative Christian NGO and foundation, sheds some light on the relationship between Romanians and violent crime in Italy. Romanians are today the largest ethnic group in Italy (estimated in 1.016.000 in 2009). This fact alone already increases almost automatically the number of crimes involving persons from this community. Although the report did not provide a criminality rate for Romanians, it showed how they were the most represented minority in crimes such as: wilful murder (15,4% of all the foreigners), sexual violence
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http://ec.europa.eu/public_opinion/archives/ebs/ebs_317_fact_it_it1.pdf Questions n. QE16 and QE1. http://ec.europa.eu/public_opinion/archives/ebs/ebs_296_sheet_it.pdf Questions QA6 and QA9.

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(16,2%), car stealing (29,8%), extortion of money (15,0%). 67 That said, it should be recognised, in my opinion, that at least not all the public anxiety was ungrounded. This is not to say that populist parties and press have not had an easy game at confusing readers and voters between Roma people, Nomads and Romanians, which have all too often been used as synonyms. Indeed (but this had already happened decades earlier with the Albanian and Moroccan communities), such anti-immigrant propaganda fostered a blind aversion not only against Roma and Romanians, but also to the supposedly excessive leniency shown by the centre-left parties when dealing with immigration and security. Europe, which allegedly left no instruments to regulate immigration, was another victim of this climate of alarmism. An interesting detail which has to my knowledge never been discussed is the circumstance that Italy could have well requested to extend its controls on Romanian nationals for a longer period of time, just as Germany and France have done. Instead, it chose to gradually lift border controls from 2002 on. Instead, many politicians have preferred to generically blame Europe or Schengen. 68 Since here more detailed information seems necessary in order to understand who is to blame, or at least what to do, it is natural to wonder about what media actually did about it. Of course, Italy has a wide array of explicitly left-wing and right-wing newspapers which predictably positioned themselves along party lines: the former mostly focusing on the priority of integrating the disadvantages and on the Governments violent rhetoric and laws, and the latter concentrating on security issues and trying to re-establish an Italians first principle in the fruition of public goods. It was a pity that the discussion was predominantly polarised around the security/integration divide, because this removed any possibility of actually addressing the topic in a more productive, un-ideological manner. In conclusion, it seems fair to claim that in most cases the effect of these conflicting views, more explicit in the press rather than in TV, has been that of radicalising the discussion, much at the expenses of a balanced understanding of the situation. For those interested in it, not much more was left available than lengthy reports, academic articles or little followed night-time talk shows. 8. Conclusions In this paper I have been trying to give an overview of the different aspects which make up the anti-discrimination law in Italy together with its cultural and political
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www.corriere.it/cronache/09_febbraio_23/calabro_d5e96f52-0189-11de-91dc-00144f02aabc.shtml www.stranieriinitalia.it/attualita-cota_lega_criminalita_romena_rinegoziamo_schengen_7313.html

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underpinnings. From the legal point of view, and despite the prolonged mis-reception of the EU legislation, Italy seems to have a solid body of law to safeguard the fundamental right of most of the disfavoured groups. 69 Serious concerns, however, arise from the implementation of such laws, which is problematic for at least three reasons: first, the Italian justice is one of the slowest in the world, which creates serious prejudice to the rights of the claimants; second, a diffused sense of distance from the institutions, almost a commonplace in political debate, intimidates the people with weaker social positions from complaining against private citizens; thirdly, many immigrants do not report wrongdoings against them, both because of ignorance of the law and because of distrust towards the authorities, which are not rarely seen as source of abuse rather than of justice. So much for the implementation. As for the problems arising from the social tissue itself, the Italian society as a whole seems locked between an age-old political divide on discrimination issues (most blatantly concerning immigrants and homosexuals). This traditional cleavage is made even more dangerous from the lack of economic growth and development, which further strains those citizens who feel in competition with the discriminated people for the award of social benefits. Addressing problems of economic growth and distribution of wealth is however definitely out of reach of the authorities created to deal with discrimination issues, and should be the task of effective and capable politicians. To conclude with yet another personal observation, I would say that the judiciary, the NGOs and the foremost governmental agencies are doing what is in their power, but that their reach is limited by the disappointing political and economic performances of the last decade.

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UNGA A/HRC/4/19/Add.4, 15 Fvrier 2007. Available at: see note 25.

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