APPLYING THE BURDEN OF PROOF RULES IN GENDER DISCRIMINATION CASES: THE CROATIAN EXPERIENCE

Abstract

All EU anti-discrimination directives contain basically identical provision on the burden of proof in anti-discrimination cases: Member States are to take the necessary measures, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because of the principle of equal treatment has not been applied to them establish facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. The wording of the two main anti-discrimination laws in Croatia, the Anti-Discrimination Act and the Gender Equality Act, on the burden of proof slightly differs, which may lead to inconsistent interpretation. The aim of this article is to explore the current Croatian gender discrimination case law concerning the application of the burden of proof rules and to investigate whether the required standard has been correctly applied in practice, as well as whether further legislative amendments are needed.