Processing Data on Racial or Ethnic Origin for Antidiscrimination Policies: How to Reconcile the Promotion of Equality with the Right to Privacy?

Abstract

The experience of various countries demonstrates the critical role that ethnic data and statistics can play in the elaboration, implementation, and assessment of policies aimed at combating racial and ethnic discrimination. Yet, many EU member states remain deeply reluctant to collect data on racial or ethnic origin. The objection most commonly raised is that processing such data would infringe upon the right to privacy. It is widely believed that collecting these data would infringe personal data protection rules. In addition, the idea of classifying people into racial or ethnic categories is itself contentious, as some fear it would conflict with individual self-determination.

This paper explores to what extent and under which conditions the data needed to combat racial and ethnic discrimination can be collected, while fully respecting the rights of individuals. First, it seeks to clarify the implications of personal data protection under European law. Second, it grapples with the issue of constructing racial or ethnic categories and setting criteria to classify individuals into them. The discussion is based on analysis of international human rights law as well as laws and practices of several states: the United States, the United Kingdom and the Netherlands have all developed different classification schemes to collect data needed for their antidiscrimination policies. In France, by contrast, there is a priori a strong opposition towards classifying people on the basis of racial or ethnic origin. Yet, the idea of developing means to better measure racial or ethnic discrimination has emerged in the French public debate and is the subject of intense discussions. Examination of states' practices enables to highlight the tensions and difficulties raised by the enterprise of classifying individuals into racial or ethnic categories in the antidiscrimination context. Nonetheless, the paper shows that human rights standards, and in particular the right to privacy, do not preclude the collection of data on racial or ethnic origin for antidiscrimination purposes, but rather define fundamental safeguards and limits that constrain the extent to and the manner in which this type of information can be gathered and processed.

Keywords: European law, antidiscrimination, equality, personal data protection, right to privacy, race, ethnicity, minorities, data collection, statistics, indirect discrimination.

JEL Classification: K10, K19, K33