Lawyer Patrick Mustu explains how discrimination can be countered in the courts

Imagine you want to learn Spanish. You go to Spain for a couple of weeks and book a course with a local school. You arrive for your first lesson and meet your teacher, who happens to be from Birmingham. Would you find that odd, at least at first sight? Probably.

The idea that languages are best taught by native speakers is as old as language schools themselves. For them, it has been part of their method, a unique selling point and a ‘quality feature’. Many students also believe they can learn better from someone who knows ‘real’ English and understands the ‘culture’.

Native speakers are seen as role models and mentors who are able to deliver high-level communication and writing practice. They also enjoy advantages on the jobs market to the extent that some providers only want to work with them. Such hiring policies are widespread, but they are not backed by any research evidence and, in the European Union, they can also have legal implications.

In 2000, the EU adopted two directives aimed at combatting discrimination: the Racial Equality Directive and the Employment Equality Directive. They prohibit discrimination

“It is sufficient to present facts from which it may be presumed that 
there has been discrimination”

on grounds of racial or ethnic origin, religion or belief, age, disability and sexual orientation.

All member states have enacted or amended legislation reflecting these principles. For example, the UK has the Equality Act and Ireland the Employment & Status Equality Acts. They ensure access to justice by having judicial, administrative and conciliation procedures available to victims, combined with special relief: it is sufficient to present facts from which it may be presumed that there has been discrimination. The burden of proof then shifts to the other party, who has to prove that a breach has not occurred. This considerably lowers the bar for taking legal action.

How are those laws working for you in the real world? In most countries, remedies include compensation, administrative warnings and fines. There are specialised bodies all over Europe. For example, the UK has the Equality and Human Rights Commission and there’s the Irish Human Rights and Equality Commission. They provide assistance, conduct surveys, publish reports and issue recommendations. In some countries, they have judicial functions and can make binding decisions. They review any case and give free advice.

Test case

Germany has recently seen its first ever case of an ELT professional challenging a school’s hiring practice and taking legal action (as reported in the February issue of the Gazette). Holding Cambridge teaching qualifications (CELTA and DELTA), the teacher in this case had already worked for schools in several countries, including in Britain, before she came to Germany.

However, she was born and raised in Greece and this fact alone closed the door to her for a job teaching English at a local inlingua school. They refused to consider her application, stating that they could only hire native speakers. No chance to demonstrate her skills, no phone call, no interview.

The teacher turned to the body established under the directives in Germany, the Federal Anti-Discrimination Agency. They took the stand that this was discrimination and told

“There is no rule without an exception: you may treat people differently 
when your demands reflect a ‘genuine and determining occupational 
requirement’”

her she could seek compensation. They also warned her that courts might not see it this way, because the law allowed for possible exemptions in certain cases.

The German General Equal Treatment Act provides for damages to be paid to an unsuccessful applicant suffering discrimination during the job application process. This might be using a discriminatory term in a job ad, during review or when declining a candidate. But there is no rule without an exception: you may treat people differently when your demands reflect a “genuine and determining occupational requirement”. So, for example, when casting the role of a grandmother for a film or theatre play, you can decline a male teenager because of his age and gender. What about a non-native English-speaking teacher applying for a job? Can it be just to say, “native speakers only”? Is it a genuine teaching requirement?And what is a native speaker, anyway?

According to David Crystal, a native speaker is someone “who has learned a language through the normal processes of child language acquisition. This means having an intuition about such things as nursery rhymes, babytalk, family slang, the regional accent and dialect of the home community, language play, the rituals of child-related cultural events and so on”.

Your first language is therefore linked to the area you grew up, your origins and also to certain ethnic groups.

In 2017, Germany’s highest labour court decided that it is discriminatory to use the term native speaker because it indirectly relates to somebody’s ethnic origin.

The teacher in this case, who finally received €3,000 as part of an in-court settlement, had pointed this out to the school when they rejected her application, but they would not discuss it and insisted on their hiring principles.

However, they were not able to convince the court that being a native speaker is a requirement for doing the job and they were also unable to rely on customer expectations or demands.

The debate will go on. Challenging schools can prove difficult, as authorities and courts in other countries might draw other conclusions, interpret local laws differently or accept the notion that a school has a choice in a particular case. The stand a German court has taken here fosters equal opportunity. The native-speaker concept does not. It divides. It excludes. And it lets a lot of talent go unnoticed.

Step-by-step guide to taking a case to court

When you apply for a job and are declined in violation of equal treatment principles, you can follow these steps. You need an indication that certain characteristics, for example age, gender or ethnic origin, have been taken into account. This can be a letter or an email you received, what you were told during an interview or the job ad.

Step 1: Contact the equality body in the country you are in (details here: https://e-justice.europa.eu/content_ fundamental_rights-176-en.do) and present your case to them. In countries where the body has been assigned judicial functions, they will investigate themselves and make a decision. If not, see Step 2.

Step 2: You can seek compensation directly from the company you applied to. This might involve hiring a lawyer and taking them to court, bearing in mind any cost risks involved should you be unsuccessful. Of course, if you are a member of a local union they should be able to help you.

The European Commission has published a detailed report on the situation in Europe, covering all EU member states plus the UK, Albania, Iceland, Liechtenstein, Montenegro, North Macedonia, Norway, Serbia and Turkey: ‘A comparative analysis of non-discrimination law in Europe 2021’, https://www.equalitylaw.eu/ downloads/5568-a-comparative-analysis- of-non-discrimination-law-in-europe- 2021-1-75-mb.

Patrick Mustu is a lawyer, language trainer and translator in Germany. He represented the teacher in this case.