The effectiveness of EU interventions into the elimination of racial discrimination and improvement of labor market outcomes for racial and ethnic minorities in European Member States
Presenting author: Tequila J.E. Brooks
TJ Brooks, Employment and Compliance Attorney, Washington, DC,
Special thanks to Eugene Brown, Roger Blanpain, Mijke Houwerzijl, Tilburg University Law School and the Netherland-America Foundation
INTRODUCTION
As Saskia Sassen has so eloquently described, Europe has always been a continent of movement, diversity and migration. With the inauguration of the Lisbon Strategy at the beginning of the 21st century, EU institutions focused more of their attention on the reduction of social inequality, elimination of racial and ethnic discrimination and improvement of employment outcomes for all of Europe's peoples, including "vulnerable populations" such as young people and older people, but increasingly racial and ethnic minorities.
A key measure adopted to eliminate racial and ethnic discrimination in European nations was the Racial Equality Directive (2000/43/EC). Alongside legislation directly applicable to member states, the European Commission inaugurated the European Employment Strategy with the purpose of better coordinating member states' strategies for tackling unemployment and creating jobs to maintain and improve Europeans' standard of living and to compete economically in an increasingly globalized economy. The European Social Fund, established in 1957, was reworked and retooled to better mesh with the Lisbon Strategy to promote equality of vulnerable populations, including ethnic and racial minorities. These three instruments form the 3-legged foundation of EU policy of reducing discrimination against Europe's racial and ethnic minorities comprised primarily of immigrants from other continents and the Roma.
Because of demographic trends in European nations, tackling and eliminating racism and improving employment and living standard outcomes for racial and ethnic minorities in the EUhas been recognized not only as a human rights issue, but as critical for the economic survival of the continent. Poor labor market and educational outcomes, poverty and exclusion among Europe's racial and ethnic minorities will translate directly into the lowering of living standards and social security contributions and outputs for all Europeans. This has been recognized both by EU institutions and the OECD.
This paper assesses the effectiveness of EU interventions into the elimination of racial discrimination and improvement of labor market outcomes for racial and ethnic minorities in member states. The fundamental question being asked is: How relevant are these policies to Europe's racial and ethnic minorities? The paper will explore both legislative and policy mechanisms.
While a significant amount of resources and attention have been invested both in the identification of racial and ethnic minorities in EU territory and in programs designed to improve the access of racial and ethnic minorities to labor markets and full participation in European society, the outcomes of EU laws and policies are not commensurate with the inputs. At present, due to a host of factors such as racism, religious intolerance, stereotyping, poverty and exclusion, Europe's ethnic and racial minorities are ill-equipped to perform the role of helping to shoulder the burden of Europe's famous social security system and standard of living.
METHODOLOGY
The bulk of the information examined for this paper is obtained from four primary sources including the official May 2011 Evaluation of ESF Support for Enhancing Access to the Labour Market and the Social Inclusion of Migrants and Ethnic Minorities produced by the Kent-based Centre for Strategy and Evaluation Services and funded by the ESF; OECD comprehensive analyses of programs in various EU nations designed to improve labor market integration of immigrants; studies produced by theEU Agency for Fundamental Rights; anda series of "shadow reports" prepared by the European Network Against Racism.
MIGRANTS AND MINORITIES IN THE EUROPEAN WORKFORCE
The very definitions and nomenclature used for racial and ethnic minorities in Europe - third country nationals of second and third generation migrants and immigrants - serve to isolate, segregate and define as different and other Europe's racial minorities. Diouf captures the essence of EU policy or ethos towards its ethnic minorities. His words can be used to aptly describe what is wrong - or not quite right - about European law and policy as it applies to racial and ethnic minorities when he writes, "Through its capacity to prescribe, this discourse both targets and seeks to disinherit, in ways historically familiar, that "second generation" who now occupies the French suburban landscape. By dint of their very presence in such space, they are rendered an anathema to their country, France" (Diouf 2012).
FRA estimates there are over 40M people of migration background living in the EU, approximately 8.8% of the total population (FRA 2011). Two thirds of these were born outside EU, or approximately 26.7M people. FRA estimates there are 4.6 - 6.4M of Roma descent in the EU, but other EU data sources estimate there to be 10-12M Roma in the EU (FRA 2011, Hungarian Presidency 2011). The statistics are misleading, however, as they may include migrants from within the EU and may not include second, third and subsequent generations of immigrants from outside the EU.
Scope and definition of race, migrant and minorities in the EU
In the EU, the concept of being a racial minority is in many ways tied to being an immigrant or migrant from outside Europe, leading to a conflation of the ideas of migrant, immigrant and racial minority. IZA found it difficult to obtain reliable comparative data for ethnic and racial minorities in the EU due to the utilization of inaccurate proxies such as birth in a non-EU country, being a citizen of another country or having a different racial background (IZA 2008). IZA pointed out, "Such proxies of ethnic minorities lead to the omission of information on those who conceptually qualify as being a member of an ethnic minority, such as naturalized immigrants, autochthonous minorities who are present for centuries but are still not assimilated to natives, and second and third generations of immigrants." IZA goes on to explain that sinceevery member state uses a different proxy for ethnic and racial minorities, this further dilutes the overall EU-wide picture and cross-country comparisons. ENAR looked to a non-European source, the U.S. Congress, for an estimate of the number of people of African descent in the EU, which it estimates to be about 7M people (Gauci 2012). It is estimated that Muslims form a significant religious minority in the EU of approximately 15M people, though it is unclear how this group overlaps with racial minorities and the migrant population.
European migrant and minority workforce trends
Regardless of the exact number of ethnic, racial and religious minorities and migrants in EU territory, all sources are in agreement about general trends and patterns of inequality between racial and ethnic minorities and the European majority. Characterizing the group as comprising foreigners, immigrants and minority groups, FRA found "differential employment and unemployment rates, the concentration of migrants and minorities in specific economic sectors, income and wage disparities, and differences in working conditions, access to education and educational attainment" between the minorities and the majority (FRA 2011). CSES found that "people from a migrant and minority background (including those of second and third generation) commonly have higher than average unemployment levels, lower participation rates and are at greater risk of social exclusion" (CSES 2011). IZA found, "Yet, most of the existing research on ethnic minorities in Europe agrees on the existence of labour market disadvantages for ethnic minorities. Ethnic minorities typically have significantly higher unemployment rates, lower labour income, and they are less likely to find and keep their jobs than the majority population" (IZA 2008). ENAR, defining populations most at risk for discrimination as people of African descent, black Europeans, migrants (both EU and third country nationals), Roma, Muslims and Jews, found that these groups encounter a number of labor-market related obstacles, including "high unemployment rates, difficulties in the acquisition of relevant documentation and recognition of qualifications, language and cultural barriers, discrimination in recruitment processes, the glass ceiling effect within employment, and unequal working conditions" (ENAR 2012). ENARwent on to highlight the fact that racial and ethnic minorities and migrants were disproportionately affected by the global financial crisis, with increases in unemployment and precarious working conditions. Lack of documentation is a situation that is not isolated to migrants and irregular migrants. While the Roma are EU citizens, they tend to lack documentation such as birth certificates and identity documents and are considered to be illegal immigrants when they migrate for work within the EU (CSES 2011).
Migrant and minority access to the labor market
According to Eurostat, in August 2012 the unemployment rate in the EU was 11.4%, up from 10.2% in August 2011, for a total of over 25M people. Unemployment rates among the youth aged 15 to 24 tend to be double those for the general population.In the wake of the European debt crisis, unemployment figures vary greatly between member states. General unemployment in the Netherlands is 5.3-7.7%, compared to rates in Spain and Greece of 25.1% and 24.4%. In Belgium and France, general unemployment rates are 7.4% and 10.6% respectively. Official general unemployment rates are 7.1% in Romania, 10.7% in Hungary and 12.5% in Bulgaria.
Unemployment rates are much higher for migrants and racial, ethnic and religious minorities. The unemployment rate for the loosely classified group "immigrants" in Belgium is estimated to be 2.5 times as high as native born Belgians - roughly 18.5% (OECD 2008). In France, the unemployment rate for youth aged 15-24 is 23%while for racial minorities in the same age group it is estimated to be 1.5 times that (15.9% among racial minorities in general and 34.5% among racial minority youth). The OECD estimates the unemployment rate for second generation immigrants in France to be about 30%. In the Netherlands, a low unemployment state even in the current economic crisis, it is estimated that the rate of unemployment for ethnic minorities is 2.5 times that of the general population, or 15% (Forum Monitor 2012). Among youth of racial and ethnic minority descent, the unemployment rate in Holland is even higher - 27% for those of Surinamese or Dutch Antillean descent, 33% for those of Turkish descent and 39% for those of Moroccan descent.
Among the Roma, unemployment ratesare even more dire. Official estimates are that unemployment among the Roma ranges from 40-95% (O'Higgins & Ivanov 2006). In Hungary,unemployment among the Roma is estimated to be 70%, ten times the national average (World Directory of Indigenous Peoples 2012). In Bulgaria, it is estimated that 65-70% of the Roma population is unemployed, and in Romania it is estimated that 40-80% of the Roma population is unemployed (O’Higgins & Ivanov 2006). It is estimated that over 50% of the Roma population is under 20 years old.
Access to the labor market is not the only jobs-related problem encountered by racial and ethnic minorities in the EU. ENAR found that quality of employment is also a critical issue (ENAR 2009). Employment quality issues encountered by racial and ethnic minorities in the EU include unequal wages, non-payment of overtime, oral as opposed to written contracts, and ethnic or racial harassment. ENAR found that around 60% of high-skilled migrants born outside the EU are in jobs for which they are overqualified - over three times the rate of those born in the EU. Women with a migrant background find themselves segregated into certain categories of work such as personal and domestic services, cleaning and care for others. Another aspect of poor quality working conditions encountered by ethnic, racial and religious minorities in the EU involves being hired for temporary rather than long-term and permanent positions (Alidadi 2011). These findings are echoed by studies about the quality of employment for Roma who are unable to access the formal labor market and find themselves employed in low-quality jobs in the informal sector.
Very little information seems to be gathered in the EU about economic survival strategies utilized by racial and ethnic minorities outside participation in formal labor markets. In 2005, Trauner challenged the stereotype that Malian women who migrate to France to join their husbands are simply dependant spouseswho live off of public welfare. Trauner found that these women generate income outside traditional formal labor markets by establishing micro-enterprises that sell food and lodging in immigrant enclaves in Paris. They also establish and participate in formal and informal solidarity associations. Having an incomplete understanding of the economic survival mechanisms utilized by those excluded from the formal labor market hamperspolicymakers in developing and implementing effective plans.
THE EUROPEAN RACE EQUALITY DIRECTIVE
Alidadi emphasizes that an adequate minority rights protection system requires two pillars - protective anti-discrimination legislation and some form of affirmative action programs. Since 2000 the EU has established the building blocks of an adequate minority protection system through changes to its fundamental constitutive documents, the establishment of anti-discrimination directives and developmentof a complex set of policies and programs indirectly and directly designed to improve the quality of life and labor market outcomes for racial and ethnic minorities in its territory.
The RED does not define the terms "race" or "ethnicity." The Preamble specifically "rejects theories which attempt to determine the existence of separate human races," and states that use of the term 'racial origin' does not imply acceptance of such theories. Howard intimates that the RED impliedly adopts the "social construct" theory of race, in which race has been defined socially to justify differences in treatment and status within a particular society. She suggests that the Directive leaves the definition of the terms race and ethnic origin to member states, which would fit into a social construct understanding of race and ethnic origin. In this framework the terms "race" and "ethnic origin" have different meanings in each member state. Examination of a select number of member states upholds this analysis. In the Netherlands, Dutch people of Indonesian origin are not treated as a racial minority though many Dutch Indonesians would be considered to be of Asian ethnicity in other countries. Dutch people from Suriname and the Dutch Antilles, who tend to have African heritage, are considered to be racial minorities (OECD 2008). For purposes of reporting to international organizations, the Netherlands has only recognized Frisians, an indigenous group that migrated to the Netherlands in the 6th century, as an official minority group (Busstra 2009) although the country is home to large populations of minority groups originating in Morocco, Turkey, Indonesia and Suriname.Although it is home to a number of people of racial and ethnic minority background originating from former colonies in Africa and the Indies, France does not recognize the concept of "ethnic minorities" in its law (Rechel 2009).
These examples demonstrate that the concepts of "race," "ethnic origin" and "minority" are defined societally. The examples of the Netherlands and France also demonstrate that societal and national definitions may afford inadequate protection to racial and ethnic minorities if persons and groups are excluded from official definitions but encounter racism and unequal treatment by virtue of the color of their skin, their accents and other characteristics that set them apart from the majority population.
The RED contains an important "nationality" exception to the concept of racial and ethnic origin. Article 3(2) specifically excludes difference of treatment based on nationality from its scope of coverage. Under Article 3(2), difference of treatment based on nationality is allowed when it relates to the entry of Third Country National (TCNs) and stateless persons into EU territory, as well as residence of TCNs and stateless persons in the EU (RED Article 3(2)). This article implies that it would be allowable for member states to exclude immigrants on racial or ethnic grounds, or to deny residence permits to TCNs on racial or ethnic grounds. It should be noted that Article 3(2) does not comment on working and housing conditions and other areas of life covered in the general scope of the RED, so presumably even TCNs would be entitled to protection against racial discrimination in most spheres of daily life while living within the EU despite the article's preservation of EU and member state immigration and border-related prerogatives. Article 3(2) goes on to exclude from its scope of coverage "any treatment which arises from the legal status of the third-country nationals and stateless persons concerned." This clause implies that immigrants unlawfully present in EU territory could be excluded from protection from discrimination and unequal treatment on the basis of racial and ethnic origin and would not have recourse under the RED.
Critically,there is a shortage of reliable statistics gathered on the basis of racial or ethnic characteristics in many member states. This means that one of the few means of identifying persons of minority racial and ethnic origin for purposes of developing policies and programs to assist them to better participate in European society and workplaces is by gathering information about "Third Country Nationals." This classification process goes even farther by identifying "second and third generation third country nationals" to be the objects of such programs. Article 3(2) appears to embed the "otherness" of third country nationals within the EU legal framework, allowing differential treatment of immigrants from the African, Asian and American continents based on their status as "third country nationals" and thus permitting member states to indirectly discriminate against persons of minority racial and ethnic origin.