Reasonable Accommodation and Disability - The new EC-Anti-Discrimination-Law

1. Reasonable Accommodation and Disability -The new EC-Anti-Discrimination-Law Rechtsanwalt Dr. Oliver Tolmein / Kanzlei Menschen und Rechte February 23, 2010

2. Agenda Disability: medical model / social model Disability in the Context of ECJ Decisions (Chacon, Coleman…) Reasonable Accomodation Meaning? Problems? Resumè

3. Disability • ECJ: Chacon-Decision (C 13/05) • Spanish Case • Person dismissed because of longer period of sickness • Spanish Court: Discrimination because of long period of sickness could amount to discrimination on grounds of disability • ECJ: sickness not disability • 2000/78/EC doesn`t forbid discrimination because of sickness •  „disability“ requires person concerned to be hindered to participate in professional life • Critique: medical model disability / focussing on limitation caused by impairment

4. Reasonable Accommodation • ECJ: Coleman-Case(303/06) • English Case. Coleman alleges that she had been subject to unfair constructive dismissal and had been treated less favourably than other employees because she was the primary carer of a disabled child. • Does Directive protect only disabled themselves or does it apply also to an employee who is treated less favourably by reason of the disability of his child? • Court: Directive applies not to a particular category of person but by reference to the nature of the discrimination.

5. Reasonable Accommodation • Art. 5 Dir. 2000/78/EC: “In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This 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, or to undergo training unless such measures would impose a disproportionate burden on the employer. The burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”

6. UN- Convention on the Rights of Persons with Disabilities  • Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms (Art. 2) • General duty for State Parties (Art 5), Liberty (Art 14), Education (Art 24), Work and employment (Art 27) • Ensure/ Enable

7. Reasonable Accommodation • For the disabled reasonable accommodation is the key term of 2000/78/EG: Realisation of equal treatment in employment and occupation. • substantial equality concept (vs. formal equality)

8. Reasonable Accommodation • Objective: Combating discrimination on grounds of disability • Means: Reasonable Accommodation •  appropriate measures/ needed in a particular case to enable a individual person with a disability • Have access to / participate in / advance in employment • Limit: No disproportionate burden to employer

9. Recital 16, 17, 20, 21 • 17: Limits of Reasonable Accomodation • Individual must be competent, capable and available to perform essential functions of the post concerned • if not: no claim for recruitment, promotion, maintenance • 20: Appropriate Measures • Effective and practical measures • Adapt workplace to disability • For example: adapt premises and equipment, Change patterns of working time, distribution of Tasks or the provisions of training

10. Context of reasonable accomodation Article 2 II b) ii)) Discrimination • No indirect discrimination if there is a legal obligation for Appropriate measures (in line with article 5) to eliminate disadvantages that could constitute discrimination Article 5: Reasonable Accommodation • No kind of special treatment or charity • Removes discriminatory barriers for individual • No positive action in favor of disabled as a group, but breaking down stereortypical prejudices that have limited opportunities for disabled Article 7 II positive Action • National law is allowed to promote integration of disabled (as a group) in working environment • Also allows protective provisions (can result in discrimination) • No duties

11. Limits of obligation to provide reasonable accomodation • What is the relation between„reasonable“ and „disproportionate“?Are costly accomm. unreasonable?Original US-law: reasonable means effective and cost aspects shall only be considered under „disproportionate burden“ • Recital 21: • No disproportionate burden • To determine: Take in account financial and other costs • Scale and financial resources of organisation or enterprise • Possibility of obtaining public fundig or other public assistance

12. Disproportionate burden: • Article 5 (3): no disproportionate burden, if: • Sufficiently remedied by measures within framework of disability policy of member state • Important role of national legislation • Different level of reasonable accomodation for people with disabilities in different member states? • Enterprise obliged to apply for remedies? •  No, but if not: no disproportionate burden

13. 2000/78/EC Résumé • Aim: Prevent from discriminating disabled  not only a question of omitting inacceptable behaviour •  Individual requirements regarding disability need to be fulfilled • Problems: Initiative for reasonable accomodation? Duties of disabled person (notification)? Employers duty to investigate? Burden of proof? • Time of Reasonable Accomodation? • permanent? Best for disabled • But: no individual case. •  Time of application/ hiring • Mandatory / but no disproportionate burden

14. Experiences • Germany: • Reasonable Accomodation not part of the Antidiscrimination-Law „AGG“ • SGB IX: Disability Law (rehabilitation, participation, workplace) • Law only for severly disabled : § 81 (4) SGB IX: • Disabled employee  accessible workspace, appropriate organisation of work, necessary resources

15. Reasonable Accomodation (§ 80 SGB IX) case law (by labour courts) BAG „Flachschleifer“-Fall (surface grinding) • Employee needs to lift work pieces 30 kg and more • After operation couldn`t lift more than 10 Kg • Employer dismissed him • BAG: Appropriate Accomodation  change of work organisation, special machine for work pieces of 10 kg.  Dismissal unlawful Z.B. Lastenheber, Spezialmaschinen, unterfahrbare Werkbank • Arbeitgeber muss Bedarf konkret ermitteln (er weiß oft nicht was erforderlich / geeignet ist) • Verfahrensvorschriften 84 SGB IX • Weite Pflicht zur Veränderung und Anpassung Arbeitsorganisation (Pausen, Teilzeit, stressarm)

16. Othe Cases by german courts „reasonable accomodation“ for serious disabled • Reasonable Accommodation =/= Best imaginable Accommodation • Different possibilities to accommodate: Employer has right to decide • But: Right of self-determination § 9 SGB IX • Example: Working Assistant for blind computer specialist/ Sign Language Translator for deaf lawyer

17. Case Law other Countries • Ireland : Requirement to provide reasonable accommodation since 1998, provision has been amended to incorporate requirements of 2000/78/EC • Harrington v. East Coast Area Health Board • Wheelchair user • Pre employment interview was held in inaccessible venue • Equality Officer: Failure to provide reasonable accommodation for claimant Vorläufige Fassung

18. A computer component company v. A Worker • Employee with epilepsy could not operate heavy machinerie • Court decided: Operations of heavy machinery is minor part of production system, arrangements need to take place to ensure A doesn`t need to operate these machinerie • An Employee v. A Local Authority • Employee had brain damage, newly employed als clerk, problems at workplace because he needed longer to become accustomed to new work organisation • Tribunal: Reasonable accomodation Job coach for up to 3 month Vorläufige Fassung

19. United Kingdom • DDA requires reasonable adjustments • DRC cases: • Employee with learning difficulties employed by restaurant. Reasonable adjustment to his job description : Needs not operate the till, as he found it too difficult. Later, he was forced to do till work and because he made errors he was dismissed from his job.  Confidential settlement of Case Vorläufige Fassung

20. Deaf sign language tutor.disciplinary process because alleged breach of his contract of employment. • Employer instituted disciplinary procedure, but failed to provide an independent BSL interpreter at hearings • No clear written transcripts, or minutes, of those hearings. This prevented employee from being able to adequately present his case.  settled before court hearing Vorläufige Fassung

21. Chacon-Decision (C 13/05) • First ECJ decision mentioning „reasonable accomodation“ • Court ruled: No dismissal because of disability allowed / reasonable accommodation necessary if essential functions of post can be performed • Didn`t apply this ruling in the case

22. European Schools Complaint Board Decision Katsioulis 09/14 • European Schools: International Body • Only a Complaint Board Decision/ No possibility to appeal / School has legal possibility to declare itself incompetent for a child • Case: Autistic Child in School, parents wanted a specific method to treat him(ABA), Doctors recommended this method, school favored only an assistant – decided on this base after three month to declare itself incompetent. • Complaint Board had to decide: what is the measure reasonable accomodation? What child and parents think is reasonable? Or what the school thinks? • Complaint Board: Experts of the school can decide what reasonable accomodation is.

23. Reasonable Accommodation in cases of interviews • New situation (compared to 1990ies): Not necessary to hide disability • Knowledge of disability is prerequisite for reasonable accommodation • Knowledge of possibilities to accommodate for disabled and for employers most important.

24. Sign Language Interpreter • Premises without barriers (wheelchairs, but also blind, learning disabled) • Possibility to have a guide dog • Possibilities to write (on computer) for blind or people without arms • Possibility to give written answers for stammerer • Appropriate more time for disabled in case of assessment test • Documents in easy language

25. Resume • Disability: Distinction Disability/Sickness • Focus not only on Disabled, but Discrimination on grounds of Disability • Reasonable Accommodation: powerful instrument overcome barriers / chance to participation • Problem: Reasonable Accommodation might come late (deaf people in application process) • Part of a changing image on Disability • Reasonable Accomodatio needs to be individualized / supports individual needs • Dynamic concept /Needs development

26. No reasonable accomodation available…

27. Rechtsanwalt Dr. Oliver Tolmein Kanzlei Menschen und Rechte Borselstraße 28 22765 Hamburg 0049-40-6000 947 00 0049-40-6000 947 47 (Fax) Germany tolmein@menschenundrechte.de www.menschenundrechte.de