The Framework Directive and Disability

1
The Framework Directive and Disability
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• An Introduction
• prof. dr. Marc De Vos

2
Overview
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• Role and legal force of the directive
• Scope D 2000/78
• Concept of (disability) discrimination in EU-law
  - Accommodation
• Proof
• Justifications and exceptions
• Positive action/discrimination
• Remedies and sanctions
• Assessment

3
Role and Legal Force of Directive 2000/78
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4
State Duty to Implement
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• Treaty duty to implement by the deadline, if
  necessary
• Form and method are free e.g. by CBA
• Implement
• Establish legislation
• Clean up legislation
• Internal flexibility of the directive, e.g.
• Armed forces, occupational requirements,

5
State Duty to Implement
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• Minimum requirements
• Stand still
• Respect of national (constitutional)
  non-discrimination provisions (see the Belgian
  example)

6
Legal Force of Directives
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• Before and after the implementation deadline
• Originally
• The directive merely directs no direct effect
• End product is national law, or the lack of it
• Commission as watch dog of the state
• Search for effectiveness and gradual growth of
  legal force

7
Legal Force of Directives
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• Upon expiry of the implementation deadline
• Vertical direct effect
• Unconditional and precise
• In relation to the state
• State organisations or bodies, in particular when
  providing a public service
• Also as employer the civil service and beyond
• Supremacy

8
Legal Force of Directives
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• No horizontal direct effect private sector
  employment
• Indirect horizontal effect
• Interpretation or construction of national law
  amenable to interpretation
• National law prior or after the directive
• Non-application of conflicting national law also
  in a horizontal setting (?)

9
Legal Force of Directives
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• State liability for damages in relation to poor
  implementation
• Individual rights granted by the directive
• Clear rights
• Causation
• Irrespective of national recognition of state
  liability for legislative (in)action

10
Applied to Directive 2000/78
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• Minimum level of protection
• May or may not require implementation
• Useful tool for interpretation
• Always to be combined with national law
• Absence or insufficiency of national law should
  not be an obstacle to claims

11
Scope of Directive 2000/78
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12
Material Scope
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• Employment and occupation
• Access and promotion
• All types of vocational training and guidance
• Employment and working conditions, including
  dismissals and pay
• Including occupational social security (?)
• Membership of and involvement in professional
  organisations and bodies
• Private and public sector

13
Material Scope
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• Employment and occupation
• Sheltered or semi-sheltered employment European
  or national approach?
• Outside the Directive
• State social security social protection
• Armed forces (optional)

14
Personal Scope
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• Persons with a (particular) disability
• What with assistants of disabled persons?
• Directly protected?
• Indirectly via the disabled person?

15
What is a disability?
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• Medical/individual (internal) v. social
  (external) or a combination?
• Limitations or impairments partially
  subjective and/or relative
• Physical mental/intellectual sensorial
• When does impairment become disability?
• When does disease or addiction become disability,
  if at all?
• All or only serious disabilities?
• Actual, past, future, potential, perceived
  (stigma and stereotypes), by association?
• Influence of existing definitions (e.g. in social
  welfare)?

16
What is a disability?
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• To what extent are these EU-law questions?
• Navas v. Eurest (C-13/05) dismissal during sick
  leave
• Opinion of advocate general Geelhoed
• Concept of disability is an EU law concept
• Requires functional limitations that are caused
  by a health problem or physiological deviation
  and that have a long or permanent nature
• Disability is to be distinguished from the
  underlying cause (i.c. illness)
• Disability includes any reason related to a
  persons disability

17
Concept of (Disability) Discrimination in EU-Law
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18
General Components
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• Discrimination is the application of different
  rules to comparable situations or the application
  of the same rule to different situations
  different or identical treatment
• Based, directly or indirectly on the protected
  trait (here disability) causation
• Motive irrelevant Knowledge idem
• Harassment discrimination

19
General Components
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• Comparator without the protected trait, in a
  comparable or different situation
• Treatment caused by the protected trait
• Protected trait is (one of) the decisive
  causes/reasons (predominant cause)
• Directly caused
• Indirectly, derived from impact

20
Direct v. Indirect
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• Direct causation
• Indirect
• when an apparently neutral provision, criterion
  or practice would put persons having a particular
  disability at a particular disadvantage compared
  with other persons
• From actual to potential or hypothetical impact

21
Direct v. Indirect
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• Direct is (usually) exceptional or hard to prove
  (implicit bias or stereotype) unless smoking gun
  requires a comparator
• Evolution
• Indirect discrimination
• Partial reversal of the burden of proof
• Flexibility with regard to statistical impact
• Theoretical or potential or hypothetical
  discrimination inherent likelihood of adverse
  effect no actual comparator required important
  tool for the disabled

22
Disability Discrimination
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• Violation of a duty of equal treatment
• Where a disabled person is objectively in a
  comparable situation vis-à-vis an able or
  differently disabled person
• Directly different treatment because of his/her
  disability (individual reference)
• Neutral treatment, but resulting in different and
  adverse effect on the group with disability
  general or particular no need for general
  adverse effect

23
Examples
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• Objectively comparable from the relevant
  employment perspective
• Organisation of work force, working time,
  infrastructure, access, definition of job
  requirements neutral vis-à-vis disability but
  inherently potentially adversely affects (some)
  disabled persons in their employment position or
  working conditions

24
Disability Discrimination
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• Violation of a duty of differential treatment
• Disabled person is not in a comparable situation
  vis-à-vis an able or differently disabled person,
  due to his/her disability, from the relevant
  employment perspective
• Is treated in identical or similar fashion
• Consequence duty of differential treatment
  through accommodation
• Now codified

25
Reasonable Accommodation
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• 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 have access to,
  participate in, or advance in employment, or to
  undergo training, unless such measures would
  impose a disproportionate burden on the
  employer Art. 5 D 2000/78

26
Reasonable Accommodation
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• For whom?
• For persons with disabilities
• Who require particular accommodation
• Implicit assumption of disadvantage without
  accommodation
• What degree of disadvantage?
• Accommodation v. comfort

27
Reasonable Accommodation
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• Accommodation v. modification in the
  job/organisations as determined by the employer
  in its essential functions
• Essential job functions determined by the
  employer but with possible review
• No positive discrimination for the disabled
• Non-essential functions to be accommodated if
  reasonable
• At the employers premises

28
Reasonable Accommodation
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• Accommodation in relation to
• Access to employment
• Participation and advancement
• Training
• Appropriate measures, where needed in a
  particular case () unless (they) would impose a
  disproportionate burden on the employer

29
Reasonable Accommodation
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• Accommodation in a particular case
• Individual and personal
• Difference in perspective with indirect
  discrimination
• Quid with general pro-active policy?
• Who takes the initiative employer or disabled
  person?
• Notification or notice of disability by the
  disabled person?

30
Reasonable Accommodation
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• Reasonable no disproportionate burden
• Money and organisational issue, taking into
  account the scale and resources of the employer
• Money absolute or relative cost / benefit
  analysis?
• For the particular case only?
• Perspective of the disabled worker?
• Subsidies

31
Accommodationand Indirect Discrimination
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• Discussion and danger
• Differences
• Comparable v. incomparable situations
• Conceptual difference
• Preamble and construction of the directive
• A combination with potentially far reaching
  consequences
• Where accommodation stops, indirect
  discrimination can begin
• issue of justification becomes important

32
Illustrations
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• Altering offices and infrastructure
• Equipment and training
• Working hours
• Assistance and supervision
• Changing the job description by spreading tasks
  differently?

33
Proof
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34
General Principles
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• National (civil) procedural law plaintiff
  carries burden of proof duty to cooperate
• EU law proof of direct or indirect
  discrimination through presumption (art. 10 D
  2000/78)
• Nu compulsory burden shifting for reasonable
  accommodation

35
Disability Issues
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• More proof issues that causation alone
• Plaintiff will have to establish that he/she has
  a protected disability
• Plaintiff will have to establish that
• He/she entitled to accommodation (i.e. capable
  in sufficient need)
• The requested accommodation is reasonable at
  first sight

36
Presumptionof Direct Discrimination
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• Disabled person in a comparable situation as
  another person (not disabled or with another
  disability) objectively similar
• Treatment different

37
Presumptionof indirect discrimination
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• Neutral provision, criterion or practice
• Not neutral in its effect for disabled persons
  (in general or in particular)
• Either through statistical impact analysis (data
  that is statistically relevant)
• Or inherently and intrinsically so for the
  plaintiffs category
• Issue to what extent is a group approach
  required?

38
Justificationsand Exceptions
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39
Context
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• When faced with a claim of presumptive
  discrimination, the employer can
• Contest the existence of a presumption
• Refute the presumption by giving an objective
  reason
• Accept the discrimination, but try to justify it

40
Principles
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• Direct discrimination cannot be justified unless
  explicitly authorised (closed system)
• Indirect discrimination can be justified (open
  system)

41
Justification ofDirect Discrimination
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• MS may open a backdoor for justification, when
  (art. 4 D)
• Genuine and determining occupational requirement
• Objective is legitimate (i.e. non-discriminatory)
• Requirement is proportionate
• Possible examples

42
Justification ofIndirect Discrimination
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• Through compulsory accommodation
• In general
• The neutral provision, criterion or practice is
  objectively justified by a legitimate aim and
  the means to achieving that aim are appropriate
  and necessary
• ECJ (i) a real need for the undertaking, (ii)
  appropriate for achieving the objectives pursued,
  and (iii) necessary to that end

43
Justificationof Indirect Discrimination
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• No generalisations or stereotypes concrete
  objective evidence, e.g. for
• Mobility and training
• Seniority and length of service
• Market justification may sometimes serve, but
  cost factor cannot! important for disability

44
Exceptions
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• Art. 2.5 Measures of national law necessary for
  the protection of health and of the rights and
  freedoms of others
• Can have perverse effects in the case of
  disability over paternalistic legislation
• Art. 4 Disability as a genuine occupational
  requirement can be allowed in national law
• Art. 7 positive action through MS provisions,
  including quotas (?)

45
Positive Action/Discrimination
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• Art. 7 D 2000/78
• Material scope
• Action and/or discrimination?
• Positive discrimination through the spectrum of
  ECJ case-law in gender discrimination?
• Personal scope
• MS only?
• Social partners through CBA?
• Employer through diversity schemes and other
  measures?

46
Remedies
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47
Principles
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• Art. 10 TEC duty of co-operation art. 17
  Directive 2000/78
• Personal and judicial remedy
• Effective
• Proportional
• Adequate in relation to the gravity
• Not disproportionately high
• Dissuasive deterrent effect
• Not less favourable than those covering similar
  domestic actions

48
Principles
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• MS protection against victimisation is required
  art.
• Plaintiff in court
• Complaint
• Witness and provider of evidence
• Levelling up applies

49
Types of Remedies
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• Purview of MS
• ECJ guidelines for damages
• Full compensation (loss, potential loss, moral
  and psychological)
• Interest
• Fixed upper limit only acceptable to the extent
  that it does not violate the principle of
  proportionate/adequate compensation only when
  the actual loss is below the limit

50
Assessment
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51
Assessment
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• Disability discrimination is new in many MS
• Combination of European directive and national
  choices
• Directive 2000/78 is too vague for speedy
  progress need for coordinated action (e.g.
  disability notion and reasonable accommodation)
• Dire need for case-law
• Crucial role for interest groups and professional
  organisations

52
Going Forward
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• Employment and occupation alone can not achieve
  success
• A comprehensive disability action plan (and/or
  legislation) across the board is a precondition
  for success in the employment context
• A legal lever non-discrimination as a general
  principle of EU law impact on MS duties

53
Contact Information
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• Prof. dr. Marc De Vos
• marc.devos_at_ugent.be
• marc.devos_at_lontings.be
• Tel. [phone]