Presentation - ENIL – European Network on Independent Living

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An Introduction to European Union
Law on Disability Discrimination
Prof. Lisa Waddington, European Disability
Forum Chair in European Disability Law,
Maastricht University
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.
Faculty of Law
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.
Faculty of Law
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.
Faculty of Law
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.
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•
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.
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2. Content of the Law
• Four kinds of discrimination are addressed in
the directive:
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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).
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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)
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• 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?
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• 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.
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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.
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Instruction to discriminate
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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”.
Faculty of Law
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.
Faculty of Law
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.
Faculty of Law
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.
Faculty of Law
Who is protected from disability
discrimination? (1)
• In Skouboe Werge 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.”
Faculty of Law
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.
Faculty of Law
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.
Faculty of Law
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 nondiscrimination 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
Faculty of Law
Additional Source of Information (2)
• http://www.nondiscrimination.net/content/country-reportsmeasures-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
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