Litigating Reasonable Accommodation before the European Court of Justice

1
Litigating Reasonable Accommodation before the
European Court of Justice

• Theresia Degener
• Disability Discrimination Summer School
• 6 16 June 2006
• University of Ireland, Galway / University of
  Maastricht

2
Issues

• Defining reasonable accommodation
• Which equality concept?
• Reasonable Accommodation Positive Action
• Which discrimination concept?
• Negative or positive duty?
• Identification process (entitled person /
  adequate accommodation
• Limits to the duty to accommodate
• Public subsidies

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Defining reasonable accommodation

• Art. 5 FD 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.
• Preamble,(20) Appropriate measures should be
  provided, i.e. effective and practical measures
  to adapt the workplace to the disability, for
  example adapting premises and equipment, patterns
  of working time, the distribution of tasks or the
  provision of training or integration
  resources.(21) To determine whether the
  measures in question give rise to a
  disproportionate burden, account should be taken
  in particular of the financial resources of the
  organisation or undertaking and the possibility
  of obtaining public funding or any other
  assistance.

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Defining reasonable accommodation

• Individualized disability-based modification or
  adjustment of employment or training situation
• Application process
• Training site and performance of work tasks
• Enjoyment of benefits and rewards

5
Which equality concept?

• Substantial equality
• Discrimination is unfavorable treatment related
  to disability in law or in fact
• Discrimination includes direct, indirect forms
  and denial of reasonable accommodation
• Positive action is necessary to enhance equal
  opportunity

• Formal equality
• Discrimination is different treatment based on
  disability in law
• No one may be treated differently based on
  his/her disability
• Anti-discrimination means refraining from direct
  discrimination (negative action)

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Reason. Accom. Positive Action

• Art. 7 FD
• Group-oriented measurement
• Goes beyond anti-discrimination duty
• Optional
• Example making public places and employment
  sites accessible to persons with disabilities

• Art. 5 FD
• Individualized measurement
• Is part of anti-discrimination duty (FD ?)
• obligatory
• Example reasonable adjustments to physical
  features of premises after employee became
  wheelchair user

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Which discrimination concept?
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Negative or positive duty?

• Is it enough to stipulate that an unjustified
  failure to accommodate is a form of
  discrimination or is it necessary to require a
  duty to accommodate?
• Example Australian case-law failure to provide
  reas. Accom. discrimination but there is no
  positive obligation to accommodate gt damages but
  no right to employment
• Art. 5 FD stipulates positive duty to reasonable
  accommodation
• Most EU Member States () but some (-) (ex.
  Belgium, Sweden, Luxembourg

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Identification Process

• Entitled person
• Who needs reasonable accommodation All persons
  who need protection against disability based
  discrimination? Only severely disabled persons?
• Shall associates be entitled to reas.
  accommodation?
• Who is a qualified person with disability? (Para.
  17 Preamble)
• What are the essential elements of the job?
• What are the individual qualifications with
  reasonable accommodations?
• No cost assessment at this point!
• Personal scope current employees and job
  applicants, former employees when receiving
  benefits from employer (Art. 3 FD)
• Does the employer need to know about the
  disability?

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Identification Process

• Effective accommodation
• Who should have the burden of proof that
  accommodation is necessary and possible?
• Who should have the burden of proof that
  reasonable accommodation is impossible or
  disproportionate?
• Who should decide which accommodation is
  effective? (employer, employee, experts,
  tribunal?)

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Limits

• Para 21 Preamble
• 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
• Which factors shall be considered?
• Nature and costs of accommodation (FD)
• Scale and financial resources of the entity (FD)
• Possibility of obtaining public funding (FD)
• Number of employees (USA)
• Type of entity (USA)
• Length of job (Sweden?)
• Consequences for pwd/ career preferences (LW)
• Collective bargaining agreements (Art. 16 FD)

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Public subsidies

• The availability must be taken into account for
  assessing disproportionate burden
• In many Member States a variety of public
  subsidies exist (allowances, salary-subsidies,
  work-assistants, etc.)
• Different levels of support and protection for
  PWD in the employment sector?
• Different accommodation duties in various Member
  States?
• Who shall have the burden of proof that all
  possible funds have been investigated?