An Introduction to European Union Law on Disability Discrimination

1. An Introduction to European Union Law on Disability Discrimination Prof. Lisa Waddington, European Disability Forum Chair in European Disability Law, Maastricht University

2. Introduction This presentation introduces the EU law which prohibits discrimination on the ground of disability. It considers: - The impact the EU Law has on the national level - The content of the EU law - Additional sources of information • The EU Law is the Employment Equality Directive – Directive 2000/78.

3. 1. Impact of the Law (1) • This law requires all Member States to prohibit discrimination on the ground of disability with regard to employment and vocational training. • EU laws also cover discrimination on other grounds. • The directive required all Member States to either introduce disability non-discrimination laws for the first time, or to strengthen their existing laws.

4. 1. Impact of the Law (2) • Many Member States have extended protection to cover other areas, like access to goods and services. • National laws in the Member States are not identical – all must, as a minimum prohibit disability discrimination with regard to employment and vocational training, but do not have to do this is exactly the same way. • Individuals gain rights directly through the national laws – which are themselves based on the EU directive.

5. 1. Impact of the Law (3) • Individuals must submit a claim based on the national law, to a national body e.g. a court, equality body or an ombudsman. • The European Court (Court of Justice of the European Union - CJEU) also has an important role to play – a national court can ask the CJEU to tell it how to interpret the directive. That interpretation by the CJEU is then binding throughout the EU, and all national courts in all Member States have to follow it.

6. 1. Impact of the Law (4) • If a Member State does not comply with the directive the Commission can bring a court action against that Member State before the CJEU. • Individuals cannot bring a case against a Member State – but can complain to the European Commission, which may decide to act.

7. 2. Content of the Law • Four kinds of discrimination are addressed in the directive:

8. Direct discrimination • Where a person experiences adverse or negative treatment on the grounds of disability, e.g. where an employer refuses to employ someone, even though they are qualified for the job, simply because they have a disability. • Example of Case: Svenska Metallindustriarbetarförbundet v. Skandinaviska Raffinaderi Aktiebolag Scanraff and Kooperationens Förhandlingsorganisation (Sweden, 2003).

9. Indirect discrimination • Indirect discrimination occurs when an apparently neutral provision, criterion or practice would put persons having a disability at a particular disadvantage compared with other persons, unless: • that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. • Case: Skouboe Werge and Ring (CJEU,2013)

10. Danish law made it easier to dismiss a person who had been on sick leave on full pay for 120 days in a year. • Law did not mention disabled people, but CJEU found that disabled people were more likely to take sick leave, and so were more likely than other people to be disadvantaged by the law – in principle law was indirect discrimination. • Could this law be justified under the directive?

11. CJEU found that the law pursued a legitimate aim and that the law was appropriate to achieve this aim. • However, if the aim could have been achieved by measures which had a less adverse consequence on people with disabilities, then it would not be necessary.

12. Harassment • Harassment is unwanted conduct related to disability which has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.

13. Instruction to discriminate

14. Reasonable Accommodation (1) • The directive says that: • “[t]his means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment,” • However, an employer does not have to make an accommodation if doing so “would impose a disproportionate burden”.

15. Reasonable Accommodation (2) • Examples of accommodations include adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources. • Case: Skouboe Werge and Ring: • Allowing a person to work part-time could be a reasonable accommodation.

16. Reasonable Accommodation (3) • Case: Danish Board of Equal Treatment, 9 May 2012 • Allowing a worker to continue to work at location near to her home, instead of relocating her to a more distant work place, could be a reasonable accommodation.

17. Reasonable Accommodation (4) • Case : Cordell v. Foreign and Commonwealth Office (UK, 2011) • Providing lipspeakers (translators for a deaf diplomat) was a disproportionate burden both because of the uncertainty of the availability of lipspeakers and the cost involved.

18. Who is protected from disability discrimination? (1) • In SkouboeWerge and Ring the CJEU drew inspiration from the UN CRPD and said that the concept of disability in the directive must be understood as: • “a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.”

19. Who is protected from disability discrimination? (2) • Coleman (CJEU, 2008) • The Court said that it did not matter if the victim of discrimination actually had a disability herself – the question was whether the discrimination was based on disability. If this was the case, then the directive came into play, and such discrimination was prohibited.

20. Who is protected from disability discrimination? (3) • This means that someone who experiences discrimination because they have a disabled family member or do voluntary work with a DPO is protected from discrimination by the directive. This rule applies across the EU, following the judgment of the Court.

21. Additional Source of Information (1) • The European Network of Legal Experts in the Non-Discrimination Field • http://www.non-discrimination.net/ • Thematic reports, e.g. Disability and non-discrimination law in the European Union • Country reports – summaries and extensive reports on each country covering how the country has implemented the directive, including special sections on disability

22. Additional Source of Information (2) • http://www.non-discrimination.net/content/country-reports-measures-combat-discrimination • News Reports – short memos highlighting important developments in individual countries, e.g. new legislation, case law • http://www.non-discrimination.net/news • Anti-Discrimination Law Review