Baseline Study
November, 2004
Introduction
Introduction.
Disability has been widely referred to as the latest civil rights movement. For a long time disability law and policy were distorted by gross stereotypes concerning people with disabilities. The legacy has been a level of paternalism and segregation that would scarcely be tolerated on other grounds. The net economic loss to society, the taxpayer and the individual involved has been needlessly huge. The net loss to the quality of our democratic life through the absence of persons with disabilities in public life has also been incalculable. More importantly, the personal impact in terms of lack of self-fulfilment is an affront to our collective European conscience, to our moral sense of right and wrong.
A worldwide law reform movement is now well and truly underway in the disability field one that tackles the legacy of the past and helps create a more equal society and economy. It is animated by basic human values such as dignity, autonomy, equality and social solidarity and by human rights law. The drafting of a UN convention on the rights of persons with disabilities is but the latest expression of this trend1.
The European Union is part of that worldwide trend away from paternalism and towards basic rights for all in the disability context. The groundwork for this shift was laid in the early 1990s at European level. As far back as 1994 the European Commission Green Paper on European Social Policy famously asserted that “social segregation even with adequate income maintenance and special provision is contrary to human dignity” in the context of disability (italics added)2. In other words, money alone is not a sufficient answer unless linked to a rights-based reform agenda. In a landmark Communication of 1996 the European Commission set out a clear vision of the equal opportunities model in the disability field and the need to move toward it in European policy3. This shift in thinking was obvious even from the title of that Communication: Equality of Opportunities for People with Disabilities -A New Community Disability Strategy.
It did not take long for this paradigm shift at the level of ideas to be reflected in law. The competencies added to the Treaties by Article 13 of the Treaty of Amsterdam of 1997 transformed the capacity of Europe to tackle discrimination on a number of new grounds including disability. European level NGOs had played an active part in making the case for these new competencies. Indeed a famous Report of the European Day of People with Disabilities issued in 1995 detailed the case for treaty changes in the disability context4. The succeeding European Day Report set out what a Directive should like in the disability context5. On foot of Article 13, A Directive combating racial discrimination was adopted by Council in June 20006. On the basis of a proposal from the European Commission Council unanimously adopted the Framework Employment Directive on Employment in November 20007. It is this latter Directive that now explicitly covers disability in its relevant non-discrimination provisions. There is now a considerable body of literature on the two new anti-discrimination Directives adopted under Article 138.
The values of the Framework Employment Directive are further reflected and reinforced by the Charter of Fundamental Rights for the European Union adopted in 2000 which expressly mentions disability in two substantive Articles. Article 21(1) of the Charter deals with the general prohibition against discrimination on several grounds and explicitly includes disability (as well as ‘genetic features’). This was perhaps unthinkable a short ten years ago. Article 26 of the Charter deals with the more disability-specific right to integration. Community level action for the benefit of persons with disabilities has continued unabated. In its recently adopted European Action Plan the European Commission rightly gives pride of place to the enactment of the Framework Employment Directive9.
As a result of the adoption of the Framework Employment Directive the European Union is now an acknowledged world leader in developing appropriate anti-discrimination law on the ground of disability in the employment context. Symbolically and for the first time in EU law the Directive situates places disability where it should be; namely, within a high profile civil rights instrument and alongside other prohibited grounds of discrimination. In keeping with trends within international and comparative disability discrimination law it innovates in the disability context by going beyond the familiar proscription against direct and indirect discrimination and requiring the provision of ‘reasonable accommodation’ to ensure a genuinely equal opportunity for persons with disabilities to apply their true native talents.
The time is right to take stock of the implementation of the Framework Employment Directive on the disability ground in the employment context which is the main purpose of this Baseline Study. It is based on the work done within the European Commission Network of Disability Discrimination Law experts from 2002 to 2004. It is a summary of that research. It reflects first of all on the new values that are quickly becoming established in the disability field throughout the world (Part I). They can be summed up in the re-focusing of disability law and policy from presumptions of incapacity toward an Day of Disabled Persons, Brussels, 1995.
expectation of ability and on the means necessary for enabling that ability to be freely expressed.
Part II reflects on the expression of these new values in EU law in the shape of the Framework Employment Directive. It is important to have a clear legal understanding of what the Directive requires an understanding that is helped by an appreciation of the values it seeks to advance in a disability context. The key components of the Framework Employment Directive will be briefly parsed and analysed for their normative requirements.
Part III contains an analysis of law reform in the pre-enlargement fifteen Member States up to April 2004. It looks at how the Framework Employment Directive is driving the law reform agenda forward. It is divided into two sections. Section I assesses how or whether the relevant domestic constitutional provisions on equality reach the issue of disability. This is important for it gives an insight into the tenuous hold that the civil rights perspective on disability has had in traditional constitutional law. Section II (the bulk) then assesses how the relevant domestic anti-discrimination laws are being adjusted to take account of the provisions of the Framework Employment Directive in the disability context. It does so country by country.
The main object of the analysis contained in Section II of Part III is to evaluate whether and how those norms of the Framework Employment Directive that speak directly to the situation of persons with disabilities are secured under the relevant domestic antidiscrimination laws. It does not look to all the requirements of the Directive but focuses in the main on those elements that add the greatest value on the disability ground in the employment context. Three axes of assessment are used.
The first relates to the coverage of disability under the relevant antidiscrimination laws (whether targeting direct or indirect discrimination). It also includes a preliminary assessment of how States deal with medical testing which has proven to be a key challenge under comparative law. And it provides information on whether associates of persons with disabilities are brought within the protective coverage of domestic anti-discrimination law.
The second axes relates to the key obligation to provide ‘reasonable accommodation’. It assesses how this concept is dealt with under domestic antidiscrimination law. This is crucial given the pivotal role played by the notion of ‘reasonable accommodation’ in the disability context.
The third axes relates to the definition of disability under domestic laws. It is true that Framework Employment Directive does not prescribe any particular definition of disability and that States have a wide margin of appreciation in this regard. Yet it is also true that this discretion cannot be unlimited since the emergence of a patchwork quilt of definitions through Europe would undermine the purpose of the Directive which is to effectively tackle discrimination on the ground of disability.
While the analysis provided in Part III is naturally concerned with the inter-relationship between non-discrimination (and ‘reasonable accommodation’ as a component of the prohibition of non-discrimination ) and the more traditional policy response of positive action measures, we do not focus on these measures in any great detail. Suffice it to say that these measures are wide and varied and well documented10. A key conceptual point does however emerge in this regard and with respect to the interpretation of the Framework Directive. It is whether all positive action measures are intrinsically compatible with the non-discrimination principle?
Part IV concludes the analysis by setting out the main challenges ahead in implementing the Framework Employment Directive in a manner consistent with its underlying goals and spirit.
Notes
1 The drafting process for this convention commenced in 2002 and is ongoing. For the background
on the draft United Nations convention see
http://www.un.org/esa/socdev/enable/rights/adhoccom.htm. See also the Communication of the European Commission indicating its support for the process: Towards a United Nations Legally Binding Instrument to promote and protect the rights and dignity of persons with disabilities, COM (2003) 16, final, 24.1.2003.
2 Green Paper on European Social Policy Options for the Union, COM (93) 551 (1993) at 48.
3 Communication of the Commission on Equality of Opportunity for People with Disabilities a New European Community Disability Strategy, COM (96) 406 FINAL.
4 Invisible Citizens: Disabled Persons’ Status in the European Treaties, Report of the European
5 Mainstreaming of Equal Opportunities: The Campaign for Article 13 Continues, Report of the European Day of Disabled Persons, Brussels, 1997.
6 Council Directive 2000/43/EC, implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, OJ L 180/22.
7 Council Directive 2000/78/2000, OJ L 303/16, 2.12.2000.
8 For a useful summary of this literature see Critical Review of Academic Literature Relating to the EU Directives to Combat Discrimination, European Commission, Brussels, 2004.
9 Equal Opportunities for People with Disabilities: A European Action Plan, COM (2003) 650 final, 30.10.2003.
Why is the anti-discrimination idea of relevance and use in the disability context? What value does it add to the traditional policy response of social provision? Put simply, the non-discrimination project in the context of disability is primarily concerned with restoring visibility to the person. The purpose of this Part is to state simply the main ideas and values driving the shift to the non-discrimination model in the field of disability.
It is important to draw out a clear contrast between the tradition of paternalism towards persons with disabilities and the strikingly different approach to disability as reflected in the non-discrimination model. This helps not merely to better appreciate the direction and values of non-discrimination law (including the Framework Employment Directive). It also helps to gain a new appreciation of the potentially complementary role of social policy in helping to make freedom and personal choice a reality. In short, the advent of the non-discrimination model is something that should ideally underpin and refresh the European social model.
For the purposes of this Baseline Study one may leave to one side the academic debate about the ‘social construct’ of difference. There is much to the view that persons are often ‘marked apart’ or labelled by their supposed group affiliations in order to be ‘kept apart’. That is to say, human difference (including the difference of disability) is imagined or created in order to set the terms of entry and participation into the lifeworld (e.g., the world of work and social interaction, etc.) which have the unintended (and sometimes intended) effect of excluding those who are deemed different. However, our primary focus is not so much on the origin of the difference in question but on how those who are different or who are labelled as different -are in fact treated.
Individuals who belong to or are assumed to identify with a particular group or clustering of persons may be treated negatively in part because of the historically low status of that group in society. This can result from (or give rise) to feelings of superiority on the part of one group as against another. In this context one of the main function of anti-discrimination law is to valorise the group and group identity. The paradigm case is race. The general understanding is that this is not the case with disability. And yet increasingly, persons with disabilities, like racial minorities, are beginning to express group pride in their affiliation and are seeking to have this pride valorised by the law. For example, some disability NGOs argued that there should be a right to be disabled inscribed into the draft UN Convention on the Rights of Persons with Disabilities.
Discrimination may be motivated less by feelings of moral superiority of one group over another and more by the use of proxies or stereotypes concerning the assumed characteristics of group members. These proxies are usually highly inaccurate and diminish the individuality of the individual. Disability is a classic case in point. Here the reduction of personal ‘use value’ is even implicit in the very word ‘dis-ability’. Disability is commonly and mistakingly - taken as a proxy for inability to perform the routine tasks of life. So the resulting exclusion (which is extremely pronounced in the employment sphere) appears even more ‘natural’. Any countervailing ethic of integration is put automatically on the defensive as cost-ineffective since it is simply presumed that persons with disabilities are less productive.
It is sometimes said that the doctrine of ‘separate but equal’ - long and rightly rejected in the area of race still finds an echo in the field of disability. From this perspective, not only is the exclusion ‘natural’ but its recipients are sometimes expected to be thankful for State support and largesse. Arguably at play here is the conflation of biological fact (impairment) with social role. The end result can be a crude and pernicious form of social determinism that arbitrarily telescopes the life chances of persons with disabilities. Such social determinism suggests that persons with disabilities have no place in the mainstream and no productive role to play in the labour market. Indeed, according as the labour market does not adjust to allow such persons express their abilities then, through time, this proxy becomes a self-fulfilling prophesy a vicious circle of exclusion.
An important point of principle needs to be stressed in this context. Even where the relevant proxies may have some basis in fact (e.g., some categories of persons with disabilities have a lower productivity rate) it is still impermissible to use them to cloud rational judgments about individual ability since it is always possible that individuals will not conform to the stereotype. It is fundamentally unfair not to afford everyone an equal chance of proving themselves.
The main problem in the field of disability is not so much that the proxies are accurate but should not be used. Rather, it is that the proxies are highly inaccurate. So one of the main tasks of non-discrimination law in the context of disability is to separate fact from fiction to place a spotlight on the person behind the disability and, in the employment context, to get employers to focus much more rationally on what the individual has to offer as distinct from what the proxies suggest he has to offer. To a large extent the nondiscrimination principle (both direct and indirect) helps to reverse the presumptions of inability accreted through the centuries about persons with disabilities.
Furthermore, and crucially, to respect difference will entail accommodating that difference. This much is plain from the rulings of the European Court of Human Rights (see Part III, Section I). Hence the significance of the concept of ‘reasonable accommodation’ as a way of moving beyond respecting difference to accommodating it. The obligation of ‘reasonable accommodation’ is distinct from ‘positive action measures’ and is intimately tied to non-discrimination. Positive action measures are general and not individualised. The notion of ‘reasonable accommodation’ is individualised and involves the person with a disability in an interactive dialogue with the employer to discover the right kind of accommodation needed in the overall circumstances of the case. Positive action measures do not generally create subjective rights. That is to say, persons with disabilities are not generally given any legal standing to challenge how (or whether) these positive action measures are implemented. To the contrary, and precisely because of the intimate link with non-discrimination, the concept of ‘reasonable accommodation’ creates clear legal standing in the person to challenge the manner by which they are being accommodated. Since one of the drawbacks of positive action measures has been this lack of direct accountability there does not tend to be a close correlation between the measure provided and individual needs. This is redressed by the notion of ‘reasonable accommodation’. All of which is not to say that positive action measures are not required. They obviously are. But the notion of ‘reasonable accommodation’ ensures a more direct link between the accommodation to be provided and the circumstances of the person and it also affords the person the opportunity to challenge accommodations and truly adjust them to his or her realities.
The text of the Framework Employment Directive is alive to the need for positive action measures. Naturally such positive action measures are needed in the disability context. A chief distinguishing feature of the European social model has been its commitment to provide the material underpinning to freedom through social support. The inter-linkage drawn between positive action measures and non-discrimination in the Framework Employment Directive may well provide an opportunity to reflect on how social support might be better directed to achieve the main goal of both non-discrimination and social provision namely to honour persons and create the conditions for their personal fulfilment and success. Useful pointers are to be found in the recent Conclusions and caselaw of the European Committee of Social Rights of the Council of Europe. This caselaw shows how the non-discrimination ideal can refresh social rights11.
The purpose of this Part is to review and clarify how the various provisions of the Framework Employment Directive advance the anti-discrimination idea in the context of employment and disability12. As mentioned earlier, the emphasis is on those parts of the Framework Employment Directive that are specific to disability.
1. Values of the Directive Equality as a Democratic Imperative and a Productive Factor.
Of some significance in setting the context for the Directive are recitals 1 and 6 that refer, essentially, to the fact that the Union is primarily a community of shared values with a commitment to the achievement of human rights for all. This backdrop is important since it situates the equal treatment ideal of the Directive squarely in a human rights context.
Recital 8 refers to the Employment Guidelines agreed for 2000 which stress the need to foster a labour market favourable to social integration “by formulating a coherent set of policies aimed at combating discrimination against groups such as persons with disability”. From this may be inferred a broad goal of social integration to be advanced through non-discrimination law and policy. Discrimination based, inter alia, on disability, is stated by Recital 11 as undermining the achievement of the objectives of the EC Treaty, in particular the attainment of a high level of employment. Because of this, Recital 12 states that any direct or indirect discrimination based, inter alia, on disability, in the employment field covered by the Directive should be prohibited throughout the Community. Recital 16 states that the provision of measures to accommodate the needs of disabled people in the workplace plays an important role in combating discrimination on the grounds of disability.
In sum, the achievement of equal treatment on all grounds including disability is both a productive factor in the marketplace as well as a civilising factor in democratic society. These two rationales should be seen as mutually supportive.
2. Definition of Disability Focus on the Phenomenon of Discrimination.
It is noteworthy that there is no definition of disability under the Framework Employment Directive. Naturally this affords Member States considerable latitude in how, or whether, they define disability for the purposes of transposing the Framework Employment Directive. Is his discretion unlimited?
In this regard, it is important to note that Article 1 states that the general purpose of the Directive is to lay down a general framework for combating discrimination on the “grounds of”…disability with a view to putting into effect…the principle of equal treatment. So what is prohibited is discrimination on the ground of disability. This would appear to place the focus of attention on the phenomenon of discrimination as such. To limit the benefits of anti-discrimination law to certain kinds of disability or to disabilities reaching a certain degree would not appear to be consistent with this goal.
It is certainly arguable that people may be discriminated against ‘on the ground of disability’ who may not themselves have a disability but who are nevertheless treated negatively because of the assumption that they have a disability. An example is someone with a facial disfigurement who is not thereby disabled but who might be treated negatively by others as if he were disabled.
Furthermore, those who may be susceptible to disability (revealed for example, through genetic testing) may also be treated negatively ‘on the ground of disability’ even though they do not themselves currently have a disability. Again, if a consistent focus is maintained on the phenomenon of discrimination on the ground of disability then it makes sense to bring this category within the coverage of the relevant anti-discrimination law.
And there are others who may not have a disability but who work with or associate with those who have a disability (e.g., work in a hospice for those with AIDS) who are likely to be treated negatively ‘on the ground of disability’. Likewise, if a consistent focus is maintained on the phenomenon of discrimination ‘on the ground of disability’ then it also makes sense to bring this category within the coverage of the relevant anti-discrimination law.
In sum, and at a minimum, the national definition chosen (if any) should not unduly detract from the main objective which is to target discriminatory behaviour ‘on the ground of disability’.
3. The Prohibition on Direct and Indirect Discrimination on the Ground of Disability (Article 2).
The drafting history of Article 2 is quite important to a proper appreciation of the nondiscrimination principle in the disability context and especially with respect to the interaction with Article 5 which particularises the obligation of ‘reasonable accommodation’.
In explaining its original proposal for a Directive and with respect to the disability ground the Commission stated:
The language used above is important for it shows that the Commission clearly saw that inadequately adapted workplaces, etc., was a form of discrimination in the employment context. It is worth emphasizing that the original text of Article 2 (general prohibition on non-discrimination) proposed by the Commission contained four sub-paragraphs14 - the fourth of which contained the original reference to ‘reasonable accommodation’ as a way of tackling such inadequately adapted workplaces. As originally proposed, Article 2(4) read:
In the ensuing negotiations within Council no delegation objected to the linkage drawn in the above formulation between non-discrimination and ‘reasonable accommodation’. However, a decision was taken in principle to move sub-paragraph 4 to a new Article (now Article 5). This was done because it was felt out of place to overburden the general or headline prohibition against discrimination with overly detailed or prescriptive rules dealing with only one ground among the many. It was felt that if any detailed prescriptive rules on particular grounds were needed they should be provided for elsewhere in the text. Article 6 on the age ground creates now elaborates certain justifications for discrimination on that ground. And Article 5 now particularises the obligation of ‘reasonable accommodation’. However, and in order to maintain the organic link with the general prohibition against non-discrimination contained in Article 2, the opening line of the original sub-paragraph 4 (above) proposed by the Commission was retained in the opening words to the new Article 5; vis,
Suffice it to say that the original Article 2 contained an explicit reference to the obligation of ‘reasonable accommodation’ and its displacement for technical drafting reasons from Article 2 to the new Article 5 should not be seen as breaking the link between the general prohibition against non-discrimination of Article 2 and the obligation to provide ‘reasonable accommodation.’
The principle of equal treatment is stated in Article 2(1) to mean that there shall be no direct or indirect discrimination on the ground, inter alia, of disability.
Direct discrimination is defined under Article 2(2)(a) to occur where “one person is treated less favourably than another is, as been or would be” on the ground, inter alia, of disability “in a comparable situation”. This encompasses straightforward cases of direct and intentional discrimination against persons with disabilities motivated primarily by prejudice. It is noteworthy that no defence whatsoever is allowable for direct discrimination. If ‘reasonable accommodation’ can place the individual in a ‘comparable situation’ then the individual is, by definition, in a comparable situation for the purposes of the Framework Employment Directive.
The notion of direct discrimination under Article 2(2)(a) may reach the issue of ‘reasonable accommodation’ in an indirect manner. For example, direct or intentional discrimination might arise because the would-be discriminator may fear having to provide ‘reasonable accommodation’. In other words, the prospect of having to provide ‘reasonable accommodation’ may motivate an employer to discriminate directly on the ground of disability.
The added value of indirect discrimination is that it is capable of reaching systemic issues of discrimination not normally covered by the prohibition against direct discrimination. It is defined in Article (2)(2)(b):
where an apparently neutral provision, criterion or practice would put persons…[with a disability]…at a particular disadvantage compared with other persons.
This prohibition is of inestimable value in the disability context. This is so because much discrimination on the ground of disability arises though through thoughtlessness or the unquestioning acceptance of long established practices. And it is this form of discrimination that impacts most in the context of disability and that has left a legacy of practices that effectively exclude. In other words, indirect discrimination will not generally be motivated by malice or forethought. But it is devastating in its effects and the reach of the indirect discrimination provisions of the Framework Employment Directive to disability are crucial.
Indirect discrimination may on occasion be motivated by prejudice. That is to say, in order to deliberately screen persons with disabilities out of the workplace employers might adjust the qualification standards to have that effect. It is fairly clear that this concept of ‘indirect discrimination’ in the Framework Employment Directive reaches both disparate impact (unmotivated indirect impact) as well as intentional discrimination through the guise of apparently neutral provisions. That is, it would not appear to be necessary to prove a discriminatory intent. This can also be inferred from existing European case law dealing with indirect discrimination on the ground of sex15.
Unlike the situation pertaining to direct discrimination, two defences are allowed to a charge of indirect discrimination under the Framework Employment Directive.
The first defence is of general application to all the grounds (including disability) and it allows for an objective justification with a legitimate aim and pursued by necessary and appropriate means: Article 2(2)(b)(i).
The second defence deals more specifically with the concept of indirect discrimination as applied to disability. At the time of the drafting of the Framework Employment Directive the most advanced legislation in Europe on this ground was the British Disability Discrimination Act (DDA) of 1995. At that time the DDA did not contain any express prohibition on ‘indirect discrimination’. The DDA did, however, provide for an obligation of ‘reasonable accommodation’ (called ‘reasonable adjustments’) and deemed a failure to provide such accommodations as discrimination. During negotiations on the Directive within Council it was apparently felt that the provision of ‘reasonable accommodation’ was a sufficient to answer to a charge of ‘indirect discrimination’ since many if not all of the obstacles that arise through indirect discrimination can be removed by invoking such an obligation. For this reason a specific reference was retained to ‘reasonable accommodation under Article 2(2)(b)(ii) notwithstanding the removal of the substance of the obligation to Article 5. The end result is that the disability-specific defence to ‘indirect discrimination under Article 2(2)(b)(ii) now reads:
As regards a person with a particular disability, the employer or any other person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to eliminate disadvantages entailed by such provision, criterion or practice.
A few points may be noted with respect to Article 2(2)(b)(ii). First of all, it assumes that national legislation actually provides for the obligation to engage in ‘reasonable accommodation’ and that such legislation accords with the requirements of the Framework Employment Directive. Secondly, it assumes that such legislation has actually been complied with. Thirdly, it implicitly assumes that ‘indirect discrimination’ will arise unless effectively responded to with ‘reasonable accommodation’. Fourthly, it assumes that the only available response or cure to ‘indirect discrimination’ where it is proven to occur on the ground of disability is the provision of ‘reasonable accommodation’. Certainly the provision of ‘reasonable accommodation’ will answer a charge of indirect discrimination in many instances. This leaves open the theoretical possibility of indirect discrimination arising on the ground of disability for which the provision of ‘reasonable accommodation’ is no answer or solution. In such cases the general defence to indirect discrimination (objective justification with a legitimate aim pursued proportionately) would need to be relied upon to defend an allegation of discrimination on the ground of disability.
When ‘reasonable accommodation’ is an answer to indirect discrimination and where it is not possible due to the defence of ‘disproportionate burden’ provided for by Article 5 then presumably the charge of indirect discrimination has been fully answered. So the notion of ‘reasonable accommodation’ can operate as the ‘cure’ to indirect discrimination and also as a defence against a charge of indirect discrimination when it is shown not to be possible to achieve in practice.
4. From Formal Rights to Effective Rights: The Key Obligation of ‘Reasonable Accommodation’ (Articles 5 and 2).
As previously mentioned, the substance of sub-paragraph 4 of Article 2 contained in the original Commission proposal which dealt with ‘reasonable accommodation’ was removed to the new Article 5 even though Article 2(2)(b)(ii) retains a reference to the notion as a specific justification for indirect discrimination on the ground of disability.
Article 5 is in many respects the lynchpin of the Framework Employment Directive on the ground of disability16. It reads as follows:
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. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State.
The conceptual linkage between non-discrimination and ‘reasonable accommodation’ was explained by the Commission in its original proposal. The Commission explained:
The principle of equal treatment under Article 2 as applied in the context of disability entails an identification and removal of barriers in the way of people with disabilities who, with reasonable accommodation, are able to perform the essential functions of a job. The concept has become central in the construction of modern legislation combating disability-based discrimination [citing the British DDA which specifically deems a failure to provide ‘reasonable accommodation’ or its equivalent as discrimination] and is also recognised at an international level17.
[italics added].
The Commission continued:
Essentially the concept stems from a realization that the achievement of equal treatment can only become a reality where some reasonable allowance is made for disability in order to enable the abilities of the individual concerned to be put to work. It does not create an obligation with respect to individuals who, even with reasonable accommodation, cannot perform the essential functions of any given job18.
Under Article 5, ‘reasonable accommodation’ in the form of “appropriate measures” shall be taken “where needed in a particular case”. This rightly assumes that such accommodation will not be required in all cases. Of importance is Recital 17 which asserts that the Directive only covers those who can perform the ‘essential functions’ of a job whether with or without ‘reasonable accommodation’.
The reference to ‘essential functions’ in Recital 17 is important at a number of levels. First of all, it serves to underscore the point that the quest for a particular ‘reasonable accommodation’ should be an interactive one between the employer and individual. The employer will need to carefully identify the truly ‘essential functions’ of a given job and to distinguish them from marginal functions. Obviously, if an employer over-conflates the ‘essential functions’ of a job in order to deliberately screen a person with a disability out or (if such over-conflation has that result) then the employer is guilty of at least indirect discrimination. Adjudicatory bodies including courts must obviously retain jurisdiction to review how the ‘essential functions’ of any particular job are defined and should not automatically defer to the employer’s own judgments. Otherwise the prohibition on discrimination will have little effect. Secondly, the reference to ‘essential functions’ is also relevant to the kind of ‘reasonable accommodation’ that an employer might be required to engage in. For example, if the marginal or non-essential functions of a job could be transferred to another employer in order to enable an employee with a isability to perform the ‘essential functions’ of the job then such ‘reasonable accommodation’ might be required.
Article 5 does not itself provide an exhaustive or even an indicative list of ‘appropriate measures’ of accommodation. But the object of such accommodation is stated to be to “enable a person to have access to, participate in, or advance in employment or to undergo training.” Recital 20 does, however, refer to some illustrative examples including:
adapting premises, and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.
Given the potential range of accommodations (e.g., reassignment of non-essential or marginal functions to other employees) and the amount of variables at play, it follows that the process of identifying any particular ‘reasonable accommodation’ must, perforce, be interactive and individualised to the needs of the person in question.
A defence of ‘disproportionate burden’ is provided for by Article 5. Any assessment of when an otherwise ‘reasonable accommodation’ reaches the threshold of ‘disproportionate burden’ involves a complex balancing of the circumstances of the employer with the rights and interests of the employee or prospective employee. Recital 21 asserts that within this calculus account should be taken of:
financial and other costs involved, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.
This defence is a key element to Article 5. A wide variety of factors will no doubt be relevant in the determination of whether the threshold of a ‘disproportionate burden’ has been exceeded. Among other things, it brings the intersection between general social provision and non-discrimination law into sharp focus in the disability context. Many employers are in fact directly or indirectly assisted in several Member States to employ persons with disabilities. This assistance takes many forms including capital grants, technical advice and assistance, tax credits and other tax breaks. If such aid is taken into account then there will be a reduced opportunity to plead ‘disproportionate burden’ in many instances. However, if this State assistance were not to be factored into the equation then there would have been many more opportunities for employers to avail of the defence. The drafters of the Directive were keenly aware of the problem and Article 5 now specifically provides that the burden shall not be considered disproportionate when it:
is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.
So the availability of State aid and assistance to employers is relevant to the identification of the thresholds. Indeed, the fact that the State itself may be the employer is highly relevant on the assumption that it can bear a higher threshold. Other relevant factors will include the financial capacity of the enterprise (which brings the link between parent and subsidiary companies into focus) and its overall capacity to concede the accommodation required. All of which must be balanced against the overall objective of the Framework Employment Directive which is to lay down a ‘level playing field’ for all in the employment context (Recital 37).
It is not an exaggeration to say that the way in which the obligation of ‘reasonable accommodation’ is handled will probably determine whether national legislation will be effective in combating discrimination on the ground of disability.
It is worthy of note that the European Social Charter which is a legally binding treaty covering economic, social and cultural rights adopted under the aegis of the Council of Europe- is now interpreted to require anti-discrimination law on the ground of disability in the employment and that such law should expressly require an obligation of ‘reasonable accommodation19.’ As well as monitoring periodic State reports, the relevant treaty monitoring body set up under that treaty the European Committee of Social Rights also has the capacity under certain conditions to entertain and adjudicate upon collective complaints. One such collective complaint dealing with the interaction of the relevant non-discrimination principle (Article E of the Revised European Social Charter) with other substantive social rights in a disability context has already been decided20. These parallel developments in the Council of Europe - which rest squarely on a human rights perspective on disability -may have some bearing on how the relevant issues should be approached by the European Court of Justice.
5. The Space provided for ‘Positive Action’ (Article 7).
Positive action measures have traditionally proliferated in the field of disability. Article 7 of the Framework Employment Directive is drafted with care in order to carve out a protected space for such measures on all grounds including disability. It is to the effect that the Framework Employment Directive shall not prevent Member States from “maintaining or adopting specific measures to prevent or compensate for disadvantages” linked to the grounds of prohibited discrimination (including disability). Nor, of course, can the Directive be used to require such positive action measures where they do not already exist.
An important point of principle arises. Does Article 7 (1) immunise all forms of positive action from scrutiny under the prohibition against discrimination under the Framework Employment Directive? After all, Article 7 (1) is geared to ensure “full equality of treatment in practice”. It might plausibly be argued that a positive action measure that makes it less likely that the public (and employers) will be sensitised to the need for a rational appraisal of the abilities of persons with disabilities is open to question. Since quotas were widely used throughout Europe at the time of the negotiations leading up to the adoption of the Framework Employment Directive it is unlikely that Article 7(1)
(whether taken alone or when read in conjunction with Article 2) was meant to subvert them. This issue would not therefore appear to arise with respect to quota systems. Rather, it would appear to arise in the context of legislative measures or practices that reserve certain categories of low status jobs for certain categories of workers with disabilities (e.g., to persons with certain impairments of a certain degree). It is too early to say how the European Court of Justice might react to this issue if squarely put.
Article 7(2) is even more specific with respect to positive action measures in the context of disability. In this specific context it goes on to carve out an exception for the protection of health and safety at work. It reads:
With regard to disabled persons, the principle of equal treatment shall be without prejudice to the right of Member States to maintain or adopt provisions on the protection of health and safety at work or to measures aimed at creating or maintaining provisions or facilities for safeguarding or promoting their integration into the working environment.
The drafting history of this provision reveals that its intention was positive and not negative. Clearly the Commission saw health and safety measures as an added way of creating space in the workplace for persons with disabilities. It is noteworthy that in its original proposal the Commission justified the notion of ‘reasonable accommodation’ in part on the basis that:
…it would supplement and reinforce the employer’s obligation to adapt the workplace to disabled workers, as provided by Framework Employment Directive 89/391/EEC21 [Health & Safety Directive].
The Commission’s original proposal did not contain an equivalent to Article 7(2). Apparently it was added during negotiations in Council and in a positive spirit. It is noteworthy that it was put into the Article dealing with ‘Positive Action’ and not in any Article dealing with (or entitled) ‘exemptions’.
It is therefore plain that the Framework Employment Directive does not contemplate health and safety law and policy as an obstacle to the achievement of a nondiscriminatory and integrated work environment. Rather, it sees the non-discrimination principle as being complemented by health and safety law and especially by the latter’s focus on adapting the workplace to suit the employee. On occasions, however, employers might plead health and safety concerns in order either to exclude persons with disabilities from the workplace or to segregate them from the main workforce. Given the drafting history of the Directive and in particular the emphasis placed on the potential synergy between both sets of laws (anti-discrimination laws on the one hand and health & safety laws on the other), it follows that such a negative invocation of health and safety issues should be strictly scrutinised and placed firmly on the defensive.
6. Exemptions: ‘ Genuine and Determining Occupational Requirement’.
If the defences available under Article 2 are not proven then discrimination will ordinarily be deemed to arise in a suitable case. Other parts of the Framework Employment Directive carve out exemptions to the operation of the non-discrimination principle.
Article 4 (1) of the Framework Employment Directive is careful to carve our space for employers to make distinctions which are “based on a characteristic related to any of the [prohibited] grounds” where:
by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement.
The original proposal of the Commission dealing with this exemption stated that the “justification in these cases relate to the nature of the job concerned and the context in which it is carried out22.” Great care will be needed to successfully police the invocation of this defence in the disability context. Otherwise a segregationist ethic could too easily masquerade as a genuine and determining occupational requirement.
With respect to the ‘nature of the job’ a key concern on the disability ground will again be the accurate identification of the ‘essential functions’ of any given job. Is it, for example, really essential that a delivery van driver should be able-bodied when vehicles can easily be adjusted to enable a person with a disability to drive?
With respect to the ‘context’ in which the job is to be carried out it is surely of relevance whether or not ‘reasonable accommodation’ is provided. The ‘context’ of the job will include many things. One thing it should not include would be the potential reaction (or predictions about these reactions on the part of employers) of customers, consumers or indeed fellow-workers to the presence of a persons with a disability on the job. Even if these negative reactions occur (and even where predictions of their occurrence are accurate) it would undermine the purpose of the Framework Directive if employers were permitted to use it in order exempt their behavior from examination.
7. Permission for Armed Forces Exemption: Article 3(4).
Recital 18 of the Framework Employment Directive is to the effect that the armed forces and police are not required to maintain in employment:
persons who do not have the required capacity to carry out the range of functions that they may be called upon to perform with regard to the legitimate objective of preserving the operational capacity of those services.
The reference to ‘required capacity’ is probably meant to embrace the actual capacity (occupational and otherwise) of an individual to perform a job. Logically this concept relates to the ‘essential functions’ of the job. And presumably, the phrase ‘required capacity’ includes the possibility of ‘reasonable accommodation.’
Article 3(4) of the Directive proceeds to grant States a discretion not to apply the provisions of the Framework Employment Directive to all or part of their armed forces on the grounds of age and disability. Recital 19 rationalises this discretion on the basis of the need to safeguard the combat effectiveness of the armed forces of the Member States. It probably follows that any derogations that go beyond what is objectively needed to safeguard the combat readiness of the armed forces go beyond the scope of the permission created under Article 3(4). Recital 19 also requires that the scope of any derogation on this ground must be defined.
The purpose of this Part is to survey the main features of anti-discrimination law in the Member States as it relates to the disability ground. It is divided into two sections.
Section I deals with the underlying receptiveness of domestic constitutional norms dealing with equality towards the non-discrimination perspective on disability. A brief examination of the relevant constitutional provisions is useful if only to try to establish the underlying disposition of the various domestic orders to the kinds of changes required by the Framework Employment Directive.
Section II deals with existing anti-discrimination legislation in the fifteen Member States prior to enlargement. It focuses on those aspects of the Framework Employment Directive that are specific to the ground of disability. That is, it focuses on
1. Current Constitutional Law Receptiveness of Fundamental Law to the New Values.
Our analysis of the constitutional provisions reveals the following.
(a) Disability is Not Generally Expressly Included in Equality Provisions.
All written constitutions (with the exception of Denmark) contain explicit equality/non-discrimination clauses and are generally phrased in terms of ‘equality before the law’. Even in the Danish case the concept of equality underpins much of the philosophy of the Constitution and the incorporation of the European Convention of Human Rights into Danish domestic law has had positive practical effects. The unwritten UK constitution has also recently been supplemented by legislative measures incorporating the European Convention on Human Rights (Human Right Act (1998) and a number of cases on the disability ground have already been heard by the British courts under this measure.
Only three European Constitutions specifically mention disability in the relevant equality/non-discrimination clauses. Article 3(3) of the German Grundgesetz (Basic Law or Constitution) states since 1994, inter alia, that “no person shall be disfavoured because of disability”. When considering Article 3(3) the Federal Constitutional Court first determines whether ‘unfavourable treatment’ arises on the facts of a case and, if so, then reaches the issue of whether a ‘legitimate compelling justification’ exists. Ten German Lander Constitutions contain some mention of disability in the relevant antidiscrimination provisions. In the employment context, these provisions bind the Lander as in their capacity as public employers. Some of these provisions also include mention of position action.
Since 1997, Article 7(1) of the Austrian Constitution states, inter alia, that “no one must be placed at a disadvantage because of his or her disability”. This does not appear to confer a subjective right. And since 1997 Article 6(2) of the Finnish Constitution states that no one “shall be, without an acceptable reason, be treated differently from other persons on the ground of…disability”. A reason is considered ‘acceptable’ if it serves an objectively justifiable end, if it serves the objectives of the fundamental rights system and if the means used are proportionate to the end.
The inclusion of disability in the relevant equality provisions was recent in all three countries. These provisions do not mandate positive action but create at least some implicit space for the same. When read together, Articles 6 and 18 and 22 of the Finnish Constitution contemplate positive action.
The inclusion of disability into the relevant equality provisions sends a strong signal within the domestic legal order about the relevance and strength of equality perspective on disability. As such, it underpins the overall trend toward the equal opportunity model in the disability context. But its practical effects can be limited due to a variety of factors. Procedural hurdles can effectively limit the usefulness of the equality norm under constitutional law. In any event, debates continue concerning the reach of such norms into purely private relations (drittwirkung or third party effect) where they are needed most in the employment context. In any event, such constitutional prohibitions on discrimination can never, on their own, be detailed enough to provide the kind of clear guidance needed to make generalities relevant in specific cases. Only legislation can do this.
Most Constitutional courts interpret general equality norms in an Aristotelian sense i.e., to treat equals equally and unequals unequally. Typical of this approach is that of the Luxembourg Constitutional Court which has held that:
the legislature may, without infringing the constitutional principle of equality, subject certain categories of people to different legal regimes on condition that the difference in treatment arises from objective disparities, which are rationally justified, adequate and proportionate to the objective23.
This reflects the 2000 decision of the European Court of Human Rights in Thlimmenos v Greece. In that case the Court emphasised that:
The right not to be discriminated against…is also violated when States without any objective and reasonable justification fail to treat differently persons whose situations are significantly different.24
The President of the Court, Judge Wildhaber, has written that one of the chief beneficiaries of this approach should be persons with disabilities.25
Some constitutional courts interpret the general equality/non-discrimination clauses as covering people with disability even thought they are not specifically mentioned in the relevant provisions; Italy26, Spain27, Ireland28. However, not all constitutional courts have been confronted with the question. It is likely that most or all courts would include disability within the protective ambit of equality protections by broadly interpreting general phrases within those protections which include ‘any other status’.
In 1996 a high level Constitution Review Group recommended that the relevant equality provision in the Irish Constitution should be extended to include an explicit mention of disability29. It was prompted to do so by a lengthy submission from the Commission on the Status of People with Disabilities. However, no proposal to amend the Constitution has yet been put to the people as a result of this recommendation.
In 2001 a motion was moved in the Dutch Parliament to include a reference to ‘disability’ and ‘chronic disease’ in the list of prohibited grounds of discrimination under Article 1 of the Constitution. The matter was deferred at the time by the Dutch Government.
(b) Disability is Included in Many General Provisions Dealing with Social Provision and Positive Action.
Despite the paucity of mention of disability in the relevant equality/non-discrimination provisions, it does receive more prominence in general clauses dealing with social policy. For example, the Austrian Constitution contains an explicit saver for positive action measures within the relevant equality/non-discrimination clauses (Article 7(3)(4)).
Similarly, the Italian Constitution places a duty on the State to remove all economic and social obstacles which prevent the full development of the individual, etc. (Article 3(2)). Article 21(6) of the Greek Constitution states that people with disabilities are entitled to benefit from measure ensuring their self-sufficiency, professional integration and participation in the social, economic and political life of the country”. Article 22 of the
Finnish Constitution is interpreted to support positive action measures although it does not explicitly mention any particular group. Article 19(3) of the Finnish Constitution provides for the general right to adequate social, health and medical services as well as the well-being and personal development of children.
Several Constitutions mention disability in what might loosely be called promotional measures (including prevention and treatment) for citizens with disabilities; Spain, (Article 49), Portugal (Article 71), Ireland (Article 45). It is unclear to what extent, if any, these social obligations give rise to enforceable subjective rights. Such measures can be conceptually tied to equality/non-discrimination but the connection is not drawn out so clearly under existing constitutional law.
Article 71 of the Portuguese Constitution states:
(1) Citizens who are physically or mentally disabled enjoy all the rights and are subject to all the duties embodied in the Constitution, except for the exercise or performance of those for which their disablement renders them unfit.
It is unclear which specific rights are denied to disabled citizens on account of their unfitness. Article 71 continues:
(2) The State carries out a national policy for prevention and the treatment, rehabilitation, and integration of handicapped persons, develops a form of education to make society aware of its duties of respect for them and solidarity with them, and ensures that they enjoy their rights fully, without prejudice to the rights and duties of their parents and guardians.
The Greek Constitution provides that “disabled war and peacetime veterans” as “well as persons suffering from incurable bodily or mental ailments” are entitled to the special care of the State (Art. 21(2)). Article 21(3) goes on to pledge the Greek State to “care for the health of citizens…and…adopt special measures for the protection of…disability”. Furthermore Article 21(6) goes on to state that “[P]eople with disabilities are entitled to benefit from measures ensuring their self-sufficiency, professional integration and participation in the social, economic, and political life of the Country”. Article 116(2) of the Greek Constitution asserts that positive measures to promote equality between men and women does not constitute discrimination. It is confined to gender.
Section 2 of Article 3 of the Italian Constitution is to the effect that it is the duty of the State to remove all economic and social obstacles which, by limiting the freedom and equality of citizens, prevents the full development of the individual and the participation of all workers in the political, economic and social organization of the country. Article 22 of the Dutch Constitution places a duty on Government to bring about the right conditions for social and cultural development and recreation. Article 19(3) of the Finnish Constitution provides for the general right to adequate social, health and medical services as well as the well-being and personal development of children. In 1999 a Commission for the Institutions and Institutional Reform in Luxembourg proposed the insertion of the following into the Constitution: “The law provides for the social integration of citizens with a disability”. This proposal, which was not adopted, was not so much intended to confer new rights in the disability field but was rather intended to enhance legislative competence in the area.
(c) Disability is Included in Many Specific Provisions Dealing with Work, Health, Education, etc.
Interestingly, there is a wealth of comparative European constitutional provisions dealing with disability within highly particular provisions dealing, for example, with health, welfare and education. Perhaps this is reflective of the general view in the past that disability was not so much an equality issue as a social policy issue.
For example, various Constitutions mention disability under the relevant social security/welfare provisions; Italy (Article 38(2)), Portugal (Article 63(4)), Finland (Article 19(2)). The thrust of these provisions is to provide for a general guarantee to basic subsistence, adequate insurance and the means of subsistence with respect to the contingency of disability or where the capacity to work is lost or reduced.
Two Constitutions specifically refer to disability under the general right to work; Italy (Article 35), Portugal (Article 58(2)). Interestingly the Portuguese Constitution asserts:
[that the]…duty to work is inseparable from the right to work, except for those persons whose capacities have been diminished by age, sickness, or disability” (Art. 58(2)).
[italics added].
Read one way this would appear to assume that disability amounts to an automatic inability to work which, if so, does not sit well with the underlying values of the Framework Employment Directive. In Sweden and with respect to employment in the public sector there is a constitutional requirement that decisions regarding an offer of employment shall be based solely on objective grounds such as skills and merit30. It is therefore never justifiable to treat any job applicant unfavourably on the basis of irrelevant factors. This is presumed to apply in the context of disability. However, laws may only be declared unconstitutional in Sweden on the basis of a ‘manifest violation’. This serves to diminish the practical utility of the provision.
Several constitutions refer explicitly to disability in the context of the right to education. Disability is explicitly mentioned in the context of education in the Portuguese Constitution (indirectly in Article 71(2) with reference to the need to educate society to the needs of persons with disabilities and more directly in Article 74(g) which covers the promotion and support of special education). Disability is also mentioned under the right to education in the Italian Constitution (Article 38(3) entitlement to vocational education and training) and in the Finnish Constitution (Article 16(2) - which refers to equal education opportunities, inter alia, for those with ‘special needs’). The Greek Constitution mentions that the State shall provide financial assistance “…to students in need of assistance or special protection” (Article 16(4)). The Luxembourg Constitution
does not mention disability in the context of education but does mention the ‘exceptionally gifted’ (Article 23(3)). None of the provisions mentioned above deal explicitly with the core right at stake namely the right to integrated education. The degree to which such education should be provided in an integrated setting is left to judicial interpretation of the interaction of the right to education and with the relevant equality norms.
Language rights (sign language) in the context of disability is explicitly covered under only two Constitutions; Finland (Article 17 (3)) and Portugal (Article 74). The relevant Finnish provisions covers not merely the rights of persons with disabilities to use sign language but also the rights of persons to interpretation or translation assistance. Article 74 of the Portuguese Constitution was amended in 1997 to include a “duty to protect and develop Portuguese sign language, as a cultural expression and instrument of access to education and equality of opportunities”.
Article 72(5) of the Constitution of Denmark states that “[A]ny person unable to support himself or his dependents shall, where no other person is responsible for his or their maintenance, be entitled to receive public assistance…”. The Greek Constitution affords a right to protection of health and genetic identity (Article 5(5)).
(d) There is Very Little Caselaw on Disability in Constitutional law.
While there is, as can be expected, a wealth of caselaw dealing with mental health law and specifically the process of civil commitment throughout Europe, there is very little constitutional caselaw on the broader equality or non-discrimination issues in the disability field.
In terms of significant constitutional caselaw, perhaps the most interesting case involving disability with respect to equality/non-discrimination is that of Re: Article 26 and the Employment Equality Bill, (1998)31 in Ireland. There, in part at least because of the relative weakness of the equality provisions in the Irish Constitution, the Irish Supreme Court decided that the obligation placed on employers in the draft Bill to engage in ‘reasonable accommodation’ towards employees with disabilities violated the employer’s right to private property and was thus void32. This was the reason why ‘reasonable accommodation’ was capped with a ceiling of ‘nominal cost’ in the revived Bill which eventually became law in 1999 (Employment Equality Act, 1999). This cap was in fact removed in the Equality Act of 2004 which was introduced to transpose the Framework Employment Directive (see below).
There are three major constitutional law decisions in Germany relating to persons with disabilities covering education, inheritance law and tenancy law. In the context of the right to education the Federal Constitutional Court placed segregated education on the defensive. On the facts of the case it did not find that ‘unfavourable treatment’ had arisen and did not therefore feel the need to explore whether a compelling legitimate justification existed33. It is nevertheless a significant advance in the sense that the judgment requires a strong justification for ‘unfavourable treatment.’
The Danish Supreme Court has held that no violation of the general principle of equality occurred in a case where the public authorities refused to allow a blind student to take her ‘student wage’ with her while studying abroad34 (non-exportability of social benefits)..
(e). Tentative Conclusions Disability is Not Generally Anchored as an Equality Issue on European Constitutional Law.
What this synthesis of constitutional provisions reveals is the following.
First, although there is a trend in favour of broadening the personal scope of the relevant equality/non-discrimination provisions to include people with disabilities, the majority of Constitutions still do not cover disability explicitly. It is true that many courts interpret the generality of equality/non-discrimination provisions to implicitly include disability. But the general point is that people with disabilities are largely absent in headline constitutional provisions on equality. This fact does not, of course, have any direct bearing on the domestic application of the Framework Employment Directive. But it does serve to bring out the extent to which European constitutional orders have not traditionally viewed disability as an equality or non-discrimination issue. Which in turn serves highlight the significance of the changes required by the Framework Employment Directive.
Secondly, the absence of disability in the relevant equality/non-discrimination provisions does not mean that disability was entirely neglected. To the contrary. There is a wealth of provisions dealing with disability under the broad ‘social policy’ heading. This is intrinsically positive particularly where the relevant provisions are directly linked to a strategy of using social supports to expand personal choice and self-determination. Harnessing such social support to a serve a broader equality/non-discrimination agenda remains a major challenge. This goal of creatively linking positive action with nondiscrimination is not helped by the fact that the relevant equality/non-discrimination provisions under comparative European constitutional are largely silent on disability.
Thirdly, there is an underlying temptation for courts to accept a philosophy of ‘separate but equal’. This seems more pronounced in the disability field. This may be partly due to the novelty of the difference of disability from a judicial point of view. It may also have to do with the accumulated weight of social provision from the past. Whatever its source, this temptation appears to bump up against the philosophy of the Framework Employment Directive and indeed modern human rights law.
2. Review of Current Anti-Discrimination Law.
The purpose of this section is to review the current state of domestic anti-discrimination law up to April 2004. A county analysis follows under three general headings:
- (a)
- General Coverage of Disability under the relevant statute law,
- (b)
- The Status of the Obligation of ‘Reasonable Accommodation,’
- (c)
- The definition of disability.
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(a) General Coverage of Disability in Austrian Anti-Discrimination Law. Currently, the Behinderteneinstellung (BEinstG) of 1969 imposes a duty on employers to employ disabled persons under a quota system. Persons with disabilities have to be assessed to be at least 50% disabled before they can benefit. The statute also confers protection against dismissal on grounds of disability (effectively a work retention measure) and provides a legislative basis for a range of grants and loans. It applies to both the private and public sectors. Apart from the dismissal provisions, it does, not, however, confer subjective or individually enforceable legal rights. Individuals cannot, for example, compel the adjustment of a workplace under it. The BEinstG 1969 does not contain any explicit prohibition against discrimination on the ground of disability.
During debates concerning the 1997 amendment to the equality clause in the Austrian Constitution (outlined in the previous section) many members of Parliament stressed the need to go further than the BEinstG. Since the Autumn of 1997 two Parliamentary motions calling on the Government to pass anti-discrimination legislation were defeated. A Bill on Equal Treatment of People with Disabilities (sponsored by the Liberal Party) was rejected during its Second Reading in July 1999. The Bill was reintroduced into Parliament (sponsored by the Green Party) in November 1999 without any changes. The Bill covered a wide range of fields (e.g., education, public transport, etc). The chapter on occupation did not include employment. Instead, it dealt with the requirements of taking up an occupation as a self-employed person.
During 2002 a variety of disability organisations formed a platform which started to campaign for a comprehensive disability discrimination statute. Such an act was promised by the Government that was returned after the November 2002 General Election. After a public debate in late 2003 the Secretary of State for Social Security published a draft Bill early in 2004 on equal treatment of persons with disabilities.
The 2004 draft Bill which includes employment but also sweeps beyond it -would amend the BEinstG 1969 by providing for an explicit prohibition against discrimination on the ground of disability. This draft was prepared and released by the Ministry for Social Affairs. To date it has not yet been brought before Parliament. Section 7(a) of the draft Bill sets out its material scope which covers the conditions of access to employment, pay, ex gratia fringe benefits, access to vocational training, advanced training or retraining, promotion, other working conditions, dismissal, and membership or involvement in an organisation of workers or employers. If enacted, the principal legislation will remain the BEinstG 1969 as amended.
The 2004 Bill repeats the text of Article 2 of the Framework Employment Directive almost verbatim. As well as a prohibition on direct and indirect discrimination it includes a prohibition against harassment (Section 7(b)) as well as against instructions to discriminate (Section 7(c)). It explicitly allows for positive action measures. The Bill envisages the addition of the following to BEinstG 1969:
Specific measures with a view to promoting full equality in employment or occupation, such as measures to prevent or compensate for disadvantage linked to disability, shall not constitute discrimination.
Curiously, the explanatory memorandum accompanying the Bill states that the above language will enable employers to remain free to select persons with a particular disability (e.g., an impairment to the senses) or whose particular disability reaches a certain degree. This interpretation of positive action measures vividly illustrates a broader question concerning the compatibility of positive action measures with the antidiscrimination norm.
The 2004 Bill proposes to introduce two tiers of enforcement. Victims of alleged discrimination are supposed to apply first to an arbitration committee established within the Department of Social Security. Using methods of mediation, the arbitration committee must first try to reach a friendly settlement. If such a settlement cannot be found the committee shall pursue an investigation of the case with a view to making a declaration as to whether or not discrimination contrary to the law has occurred. The committee may also impose sanctions. The applicant may then apply to the employment tribunal (if alleging employment discrimination) or to the civil courts (dealing with discrimination outside employment). As soon as the matter is referred to the employment tribunal the declaration of the arbitration committee ceases to have effect. The law envisages a role for organisations of workers and employers in bringing forward claims of discrimination. It is unclear whether the permission of the victim has to be first obtained.
Medical testing is not explicitly regulated within the sphere of non-discrimination law. But neither is medical testing required. Employers are specifically required to pay particular attention to the health conditions of their employees and to employ people according to their aptitude and skills.
(b) The Status of the Obligation of Reasonable Accommodation.
The obligation to engage in ‘reasonable accommodation is not, as such, yet covered under existing anti-discrimination legislation in Austria.
The January 2004 Bill does not explicitly call for ‘reasonable accommodation’ on the part of the employer. It seems that the drafters envisaged that such an obligation would fall more naturally under the concept of ‘indirect discrimination’ the definition of which in the Bill will include a reference to ‘characteristics of built environment’. However, while the notion of ‘reasonable accommodation’ reaches the built environment it also encompasses many more things. Moreover, the remedies and sanctions provided by the Bill seem confined to damages (which may include damages for injury to feelings). There would not, therefore, appear to be a mechanism envisaged whereby the employee or job seeker could compel the provision of ‘reasonable accommodation’ on the part of the employer.
Section 7a(4) of the draft Bill relates to the employer's duty to adjust the working environment and sets out the limits of this duty. Discrimination will not be deemed to occur if adjustments cannot be expected because they would be unreasonable (e.g., because the burden for the employer is unduly high). It reads:
A disadvantage within the meaning of paragraph 2 [defining indirect discrimination] shall not constitute discrimination if the elimination of the causes of the disadvantage imposes a disproportionate burden. When assessing the burden, the expenditure necessary to eliminate the disadvantage and the financial strength of the employer or organisation have to be taken into account. When assessing the reasonableness of the burden, the availability of grants or allowances administered by a public agency have to be taken into consideration.
Section 7a(5) of the draft clarifies the limits of the employer's duty set out in paragraph 4. It is to the effect that even if accommodation is to deemed unreasonable, discrimination will still be deemed to occur if the employer fails to make all the efforts that can nevertheless be reasonably be expected from it (efforts with a view to accommodate the needs of disabled people to the greatest possible extent). Paragraph 5 strengthens the duty of the employer under paragraph 4. It is to the effect that if a particular measure is considered unreasonable under paragraph 4 then the employer might still be obliged to engage in other measures under paragraph 5 provided that the other measure ameliorates the situation for people with disabilities. Section 7a(5) of the January 2004 Bill reads:
When the elimination of the causes of the disadvantage, especially of barriers in the built environment, proves disproportionate, discrimination is, nevertheless, to be taken to occur where the employer or the organisation failed to provide for reasonable measures substantially improving the situation of persons with disabilities and thus, realising equal treatment to the greatest possible extent. When assessing the reasonableness of the measures, the availability of grants or allowances administered by a public agency have to be taken into account.
Litigation will no doubt be required to clarify these provisions.
(c) The Definition of Disability. Section 3 of the BEinstG 1969 currently defines disability as follows:
Disability is the result of a deficiency of functions that is not just temporary and based on an abnormal physiological, mental or psychological condition. A condition is not deemed temporary if it will presumably last for more than six months.
It seems that there no plans to amend this definition in the draft 2004 Bill in the employment context. Outside the employment context two draft definitions have been proposed. Both of these would explicitly extend the protective coverage of the nondiscrimination norm to family members of a person with a disability.
(a) The General Coverage of Disability under Belgian Anti-Discrimination Legislation.
Legal competencies in the disability field are divided among the Federal State, Regions, and Communities. The overlaps in competencies are complex and as many as six different legislatures are involved depending on their respective competencies: namely, the Federal State, the Flanders Region, the Walloon Region, the Region de Bruxellescapitale, the Flemish-speaking Community, the French-speaking Community, and the German-speaking Community.
The section de legislation of the Conseil d’Etat/Raad van Staat had previously pronounced that human or civil rights are transversal values that cut across the full spread of government competencies. That is, rights do not in themselves give rise to legal competencies where none formerly existed under positive constitutional law but affect the full spread of competencies no matter what they are and no matter where they lie (i.e, no matter which legislative body has competence). Civil rights as such is a matter for the Federal Belgian State. However, vocational training and disability policy (including employment) are competencies for the Regions in the Belgian system and are therefore impacted by civil rights. So the transposition of the Directive arises at all levels within the Belgian system.
At the level of the Belgian Federal State a Collective Agreement (no.38) was adopted in 1983 (and given the force of law by Royal Decree) in the field of recruitment and selection of workers. It was originally drafted to give effect to the United Nations Convention for the Elimination of all Forms of Racial Discrimination (CERD) in Belgian law. It was subsequently modified and broadened in 1994 and 1999 respectively. The latest set of amendments (1999) led to the insertion into the Agreement of two new grounds of prohibited discrimination covering sexual orientation and disability. The Belgian social partners believed that Article 13 EC could, and should, be directly implemented in Belgian law without waiting for any implementing Directive to be adopted. The relevant part of Article 2bis of the Collective Agreement now reads:
The employer may not treat the candidates in a discriminatory fashion.
During the procedure [recruitment and selection], the employer must treat all the candidates equally. The employer may not make distinctions on the basis of personal characteristics, when such characteristics are unrelated to the function or the nature of the undertaking, unless this is either authorised or required by law. Thus, the employer may in principle make no distinction on the basis of age, sex, civil status, medical history, race, colour, ascendancy or national or ethnic origin, political or philosophical beliefs, membership of a trade union or of another organisation, sexual orientation or disability.
[italics added].
Article 11 of the Collective agreement protects the private life of the worker against not merely employers but also against others such as psychologists or physicians who act for the employer. This is interpreted to mean that an employee does not have to disclose a disability.
Anti-discrimination law has recently been strengthened at the federal level. The Loi tendant à lutter contre la discrimination et modifiant la loi du 15 février 1993 créant un Centre pour l’égalité des chances et la lutte contre le racisme (Federal Anti-Discrimination Act) has been adopted by both houses of the Parliament (the last vote was in the Senate on 12 December 2002). It was promulgated into law on 25 February 2003 (based on a Bill originally proposed by Senator Mahoux). This new legislation offers protection against direct and indirect discrimination on the ground of disability and provides for civil remedies as well as criminal sanctions. It is divided into six chapters. Chapter I identifies its legal basis under the Belgian Constitution; Chapter II defines the scope of the law and the various forms of discrimination it seeks to prohibit. Chapter III provides for criminal sanctions; Chapter IV contains the civil provisions and remedies; Chapter VI deals with the right of organizations to file suit.
The grounds of discrimination now include ‘the actual or future medical condition, or disability or a physical characteristic’ (Article 2(1)). The law goes beyond the field of employment into areas such as the supply of goods and services. It even reaches “access to, and participation in, all economic, social, cultural or political activities which are normally accessible to the public” (Article 2 (4)).
The civil provisions contained in Chapter IV of the new Federal legislation seem readily applicable in the employment context. The Law of February 2003 provides for the invalidity of any contractual clauses which run counter to its provisions (Article 18). The law takes priority over any such agreements. It gives the judge the power to issue mandatory injunctions (Article 19). It enables the judge to issue an order to cease and desist under pain of a fine (Article 20).
Direct discrimination is defined by the 2003 Federal Law as a ‘difference of treatment which lacks an objective and reasonable justification’ (Article 2 § 1). This definition seems overly wide when compared to Article 2 (a) of the Framework Employment Directive. The law does state, however, that a differential treatment will only be justified in employment “where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is limited and the requirement is proportionate”. In other words, the available defence (‘objective and reasonable justification’) might be confined to a ‘genuine and determining occupational requirement’ and thus saved under the Framework Employment Directive.
Indirect discrimination is defined under the 2003 Federal Law as arising where an apparently neutral provision, criterion or practice, would put persons defined by one of the prohibited grounds at a particular disadvantage compared with other persons, unless that provision, criterion or practice is (a) based on an objective and reasonable justification or (b) is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. This formula seems to impose a somewhat lesser hurdle to surmount in order to justify indirect discrimination as contrasted with the Directive which additionally also requires that the provision, etc., should be ‘necessary’ Article 2(2)b).
Chapter II of the 2003 Federal Law sets out a number of criminal offences related to the general notion of discrimination (both direct and indirect). These offences concern those
(a) who publicly incite discrimination, who incite hatred or violence against the person, and those (b) who give publicity to their intention to commit discrimination as well as (c) public servants who commit discrimination in the exercise of their public functions. These offences may occasionally arise in an employment context. If certain acts such as harassment are found to have been motivated by hate or hostility against a persons on one or more of the prohibited grounds then the relevant fine may be aggravated.
An instruction to discriminate is also considered to be a form of prohibited discrimination under the Federal Law. Interestingly, obeying superior orders is no defence on the part of a public servant who complies with such an instruction (Article 6.(2) of the Federal Law).
It does not appear that the protective sweep of the Federal Law was intended to reach persons who are associated with those who have a disability. The Federal Law also faithfully reproduces the language of the Framework Employment Directive on harassment.
Both the Flemish and Walloon regions are also actively engaged in law reform in this field within their respective spheres of competence. In Flanders a Decree on Equitable Participationt in the Employment Market (evenredige participatie op de arbeidsmarkt) was promulgated on 8 May 2002. The Decree seeks to transpose the Framework Employment Directive and the Race Directive with respect to the relevant competences of the Flemish Region and Community. It is also inspired by Dutch law (Promotion of Labour Participation of Ethnic Minorities: SAMEN) and Canadian equality law (Employment Equity Act, 1995). The Decree seeks to improve the level of representation of certain ‘target groups’ in the labour market. The latter term is left open-ended and will be further particularised through regulation by the Flemish Government together with the Flemish Social and Economic Council. It seems certain to include the disabled.
The Flemish Decree is premised on two key principles: (1) the ‘representative participation’ which refers to the representation in the workforce of target groups in numbers proportionate to their representation in the broader community and (2) ‘equal treatment’ which refers to the elimination of all forms of direct and indirect discrimination. The prohibition of discrimination relates to on a number of limited grounds which expressly include ‘disability or physical characteristic’. Discrimination is defined as ‘less favourable treatment’. No justification is envisaged for direct discrimination. Since it is enacted within the sphere of competence of the Flemish Region, it primarily imposes obligations on the Flemish public authorities defined as:
- persons or organisations who act as intermediaries in the labour market by giving information on employment opportunities, offer vocation guidance and vocational training,
- on the public authorities of the Flemish Region/Community including the field of education (e.g., teachers in public schools),
- other employers with respect to vocational training end employment.
Chapter II of the Flemish Decree sets out a long list of prohibited forms of discrimination on the grounds listed including disability. It is, for example, unlawful to refer to any of the prohibited grounds (including disability) in the description of conditions or criteria in employment intermediation, to present certain employment opportunities as better suited to persons belong to one of the protected groups, to deny or discourage access to employment, to deny access to vocational guidance, to impose conditions on the receipt of titles such as degrees, to use techniques or tests which, in vocational guidance, vocational training, career guidance or employment intermediaries, may lead to direct or indirect discrimination.
Chapter III of the Flemish decree refers to regular reporting obligations on the part of employers which is modeled on Canadian employment equity legislation. Chapter IV deals with supervision of the implementation of the Decree. Harassment is prohibited under the Decree but is not specifically tied to discrimination.
The Walloon Government adopted an important Executive Decree (Arrêté) on 5 November 1998 on the promotion of equality of opportunities for persons with disabilities in the employment sphere. This decree has itself been progressively modified in 2001 and twice in 2002. The Decree has 10 Titles. Titles 1-9 set out a number of means though which the decree encourages the integration of persons with disabilities into the labour market under the supervision of a new agency (Agence walloone pur l’integration des personnes handicappe: AWIPH). It does not set out any nondiscrimination rules. An adapted version of this Decree was adopted by the Region of Bruxelles-Capitale on 4 March, 1999.
On 27 May 2004 the Walloon Region adopted a Decree on Equal Treatment in Employment and Professional Training. Its scope is limited to the competencies of the Walloon Region including those attributed to it under law. It applies therefore to vocational guidance, socio-professional integration, the placement of workers, the allocation of aids for the promotion of employment and vocational training in both the public and private sectors.
The Region of Bruxelles-capitale adopted an ordinance on the mixed management of the employment market on 26 June 2003. The ordinance essentially defines which entities, and under which conditions, may act as intermediaries in the employment market. Whether public or private, these entities are obliged to respect the general prohibition against discrimination. Article 4(2) of the ordinance specifically prohibits covered entities from discriminating against job-seekers on the grounds of disability.
On 26 April 2004 the Council of the German-speaking Community discussed a draft Decree proposed for the implementation, with respect to its competencies, of the Framework Employment Directive (in addition to other Directives). It awaits formal publication in the official journal. The Decree applies to the administration of the Community, to the personnel of the educational system of the Community, and to employers with respect to the provision of ‘reasonable accommodation’. Harassment is deemed a form of direct discrimination in the decree.
The vicarious liability of an employer is governed under the Belgian Civil Code.
Under the Federal Law of February 2003 the Centre pour l’égalite des chances et la lutte contre le racisme as well as certain other bodies concerned with human rights will have the power to file suit in the Industrial Tribunal on behalf of an aggrieved individual provided that the individual consents. Likewise, the Flemish Decree confers power to file suit on certain organisations and enables them to assist the complainant in pursuing a case. The Federal Law allows for the burden of proof to be reversed once sufficient evidence (including statistical data) has been adduced giving rise to a presumption of discrimination. The Flemish Decree likewise allows for the reversal of the burden of proof. Victimisation is also covered in both the Federal and Flemish legislation. Remedies include injunctions as well as damages and publicity.
The Reglement general sur la protection du travail et le bien-etre (RGPT) was initially adopted by two decrees in 1946-1947. It governs the field of medical testing. The objective of testing is to create the conditions to make it possible for the medecin du travail to suggest adaptations of the working conditions, or the adoption of individual or general measures of protection. Such an examination is compulsory with respect to workers hired under the Belgian quota system. It is conceivable that a refusal by an employer to put into effect the recommendations of a medecin du travail could be considered discrimination in as much as the employer fails to ‘reasonably accommodate’ persons with disabilities.
(b) The Status of the Obligation of ‘Reasonable Accommodation’.
As proposed the 2003 Belgian Federal Law did not at first include an obligation to engage in ‘reasonable accommodation. The justification offered was that specific legislation would be needed for this purpose which, it was felt, fell more within the competence of the Regions and Communities and would, in any event, have to be discussed first among the social partners. However, in May 2002, the Government set aside its initial hesitation and proposed an appropriate Government amendment.
Article 2 (3) of the Federal Law of 2003 now deems a failure to provide ‘reasonable accommodation’ as amounting to discrimination. The defence of ‘disproportionate burden’ is provided for. Yet in any calculation of whether the burden is in fact disproportionate, due account has to be taken of whether the measures are sufficiently compensated for by the State. Illustrative examples of ‘reasonable accommodation’ are given in the explanatory documentation for the draft proposal.
The Flemish Decree also requires ‘reasonable accommodation’. However, a failure to provide ‘reasonable accommodation’ is not explicitly tied to the concept of discrimination (whether direct or indirect). That is, it has the status of a general requirement but is not tied either to direct or indirect discrimination. Interestingly, the obligation is not confined to disability and applies across all grounds (i.e., it also applies to age and religion, sexual-orientation). It is therefore entirely possible that cases dealing with the obligation of ‘reasonable accommodation’ on the ground of age will arise before they do on disability. The defence of ‘disproportionate burden’ applies. The burden is not to be considered disproportionate when it is sufficiently remedied by existing measures.
The relevant decrees of the Walloon Region and of the Region of Bruxelles-Capitale use the concept of ‘reasonable accommodation’ not as corollary of the general prohibition against discrimination but simply to describe the changes the employer may bring to the working post with the financial support of the Region. Thus, to provide “reasonable accommodation” is not considered under these decrees to be an obligation of the employer; it is essentially a privilege. The employer may or may not choose to adapt the working post to the needs of the disabled employee.
Article 8 of the 2004 Walloon Decree requires ‘reasonable accommodation’ but seems to suggest that the obligation is confined to the education or training context. However, it is possible to read the obligation more expansively under the Walloon Decree since the material scope of the Decree read as a whole reaches beyond education. Case law will be needed to clarify this point. The German Community Decree requires ‘reasonable accommodation’ and deems failure to provide it as discrimination.
(c) The Definition of Disability.
The Federal Law does not define the notion of ‘disabled person’. It concentrates on prohibiting any kind of discrimination, either direct or indirect, on the basis of “current or future state of health, a disability or a physical characteristic”. This may cover those who have a genetic pre-disposition to a disability. The same is true of the Flemish Decree of 8 May 2002. The Walloon Decree does not qualify the degree of severity of the impairment but simply states that the impairment must be important enough to require the intervention of the collectivity. None of the definitions used seem to capture ‘perceived disability’.
(a) The General Coverage of Disability under Danish Anti-Discrimination Law
By Act of Parliament no. 459 of 12 June 1996 Denmark enacted its first statute banning discrimination in the labour market. This act was introduced to give effect to International Labour Organisation (ILO) Convention 111 Discrimination (Employment and Occupation) of 1958 and the International Convention for the Elimination of all Forms of Racial Discrimination (CERD). Disability was not specifically covered by the relevant anti-discrimination provisions.
In 2001 a Commission appointed by the Danish Government recommended that a range of human rights convention should be incorporated into Danish law. Since a referendum would be needed with at least a 40% majority vote in favour, such a move may be some time away. In any event, it is not immediately apparent that incorporation would directly benefit persons with disabilities especially in the absence of detailed legislation tailored to disability with associated case law.
Denmark has an elaborate and generally effective tradition of social support for persons with disabilities.35 Such support does not, however, generate subjective or enforceable individual rights. The recipients of such support were traditionally seen as clients and not as rights holders. However, this view has undergone a significant shift in the last decade. The Danish Parliamentary Ombudsman and Supreme Court have both been instrumental in the field of disability in recent years. Indeed, the incorporation of the European Convention on Human Rights into Danish law in 1992 has further fuelled the shift away from passive welfare towards an active rights policy.
By tradition, such matters as are covered by the Framework Employment Directive are left to voluntary negotiations between the social partners and are then reflected in collective agreements in Denmark. Negotiations between the social partners with respect to the transposition of the Framework Employment Directive have in fact been going on for more than two years. Denmark has notified the European Commission that it requires an additional year to transpose the Framework Employment Directive into its laws. The legislation needed to transpose the Framework Employment Directive is being prepared by a commission within the Danish Ministry of Employment. The Danish Government intends to table a Bill before Parliament in September 2004. To that end it has asked the social partners to conclude their negotiations by May 2004.
The Danish courts insist on a strong principle of equality under the rubric of general principles of administrative law. Such principles attach to official acts (e.g., the exercise of official discretion) or acts done under colour of State law. Though laudable, this does not reach or regulate purely private acts of discrimination in the open labour market. Likewise the opinions of the Ombudsman through not legally binding have great effect in the public and semi-public sector.
In Denmark a disabled job seeker is obliged to inform his employer if he has a disability which might substantially inhibit his capacity for the work in question. Failure to do so could be considered by the employer as fraudulent with implications for the validity of the contract. In general, employers have no right to insist on a medical examination except in certain sectors such as the food industry or if the individual applies for pension insurance.
(b) The Status of the Obligation of ‘Reasonable Accommodation’.
The obligation of ‘reasonable accommodation’, is not, as such, covered under Danish anti-discrimination law. A variety of programmes does much of the job of ‘reasonable accommodation’ but are not directly related to anti-discrimination law and does not confer ‘subjective’ rights on individuals. They cannot by themselves meet the requirements of the Framework Employment Directive. The Danish courts have a long tradition of balancing competing rights and interests and so should be in a position to appropriately interpret the obligation of ‘reasonable accommodation’ once it is properly transposed into Danish law.
The Law on Compensation to Disabled Persons in Employment (1998) creates a statutory preference for “persons who because of disability have difficulties in getting employment on the ordinary labour market”. It does not factor in the possibility of ‘reasonable accommodation’ as understood under the Framework Employment Directive.
(c) The Definition of Disability.
There is no legal definition of disability in Denmark. Imputed disability is not generally considered to be a disability in Denmark.
(a) The General Coverage of Disability in Finnish Anti-Discrimination law.
Like most European countries, only gender-based discrimination was traditionally covered by civil non-discrimination law in Finland: Act on Equality between Women and Men (609/1986).
A Working Group (Project) was set up by the Finnish Ministry of Labour with the task of overseeing the transposition of the Framework Employment Directive. A parallel Working Group worked on the transposition of the Race Directive. Their separate proposals were integrated into one proposal and then submitted to Parliament as a single Government Proposal on Equal Treatment on 20 December 2002. The time allocated for considering the proposal was short. Because of Parliamentary elections to be held in Mach 2003 the Parliament was dissolved in mid-February 2003. Before being dissolved the Parliament rejected the proposal. Such legislation was finally adopted at the end of 2003 (Equality Act, 2003).
Three sets of laws currently govern disability discrimination.
First, the Finnish Penal Code contains two provisions on discrimination; one of a general nature (Section 11(9)) and one specifically targeting discrimination in the field of employment (Section 47(3)). The prohibition on employment discrimination deals with employers who in the recruitment process or in the employment context place a person in a disadvantageous position without a ‘weighty or acceptable reason’. Neither the general nor the employment specific provisions directly cover disability. Both provisions do however cover discrimination on the ground of ‘health status’ and there is little doubt that disability is covered even though many persons with a disability do not in fact have any health concern. This raises the possibility that persons with disabilities whose disabilities are not a health concern are not covered. The relevant provisions of the Penal Code do not distinguish between direct and indirect discrimination. Instructions to discriminate are also penalised. As punishment for discrimination the Penal Code prescribes fines or imprisonment for a maximum of six months.
Secondly, the Employment Contracts Law, which came into force in 2001, contains a specific non-discrimination provision with regard to working life. The core provision of Chapter 2, (Section 1) is entitled ‘Prohibition of Discrimination and Equal Treatment’. It prohibits ‘differential treatment’ on a number of grounds “or any other comparable circumstance” without “acceptable reason”. Disability is one such ground and would no doubt be covered under the term ‘”any other comparable circumstance” in any event. Under the Act an employer has the obligation to “strive to further the employee’s opportunities to develop themselves according to their abilities”
Should an employment contract contain a provision that is found to be discriminatory either in itself or in its effects, such a provision can be adjusted or rendered null and void. Discriminatory acts on the part of employers may also constitute grounds for the giving of notice by an employee for the termination of the employment contract in question.
Thirdly, the Equality Act (2003) was specifically adopted in December 2003 in order to transpose both Directives into Finnish law. It entered into force in February 2004. Its definition of discrimination is modelled on the provisions of the Directives and explicitly includes both direct and indirect discrimination. It covers all the grounds of the Framework Employment Directive. The listing of grounds is in fact open-ended. No justification is permitted for direct discrimination under the Act. It prohibits discrimination with respect to conditions for self-employment and occupation, recruitment criteria, employment and working conditions, promotion, training of staff, education and membership and involvement in organisations of workers or employers.
A victim of discrimination on the ground of disability can claim ‘just satisfaction’ under the Act from the perpetrator up to the maximum amount of €15,000 which may be exceeded if the act of discrimination is considered to be particularly serious. It appears that interested organisations may not commence criminal or civil proceedings on behalf of, or in support of, the victims of discrimination. The Equality Act provides for a shift in the burden of proof in accordance with the Framework Employment Directive.
Finnish workers who acquire a disability during their working life are afforded added protection under Finnish law. In Finland as elsewhere in Europe there exists a web of laws that aim at enhancing the employability of persons with disabilities. They do not make reference to the principle of equality even though they are obviously animated by a broad philosophy of equality. There is a large volume of caselaw regarding the proper implementation of these laws. However, the notion of non-discrimination does not form part of the ratio decidendi of these cases.
The Occupational Health Care Act of 2001 (1383/2001) regulates the use of medical examinations in relation to employment including recruitment. In accordance with Article 12 of the Act an employer has the duty to provide:
(2) investigation, assessment and monitoring of work-related health risks and problems, employee’s health, working capacity and functional capacity, including any special risk of illness caused by the work or working environment, and any medical examinations as a result of the aforementioned points… …
(5) monitoring and supporting the ability of a disabled employee to cope at work, having regard to the health requirements of the employee…
An employer has a duty to ensure that the health status of a disabled worker does not deteriorate due to his working conditions. The measures to be taken to support the disabled worker may relate to a re-organisation of the workplace or workstation. This is ‘reasonable accommodation’ in another guise although not linked to the concept of non-discrimination. An employee may not, without just cause, refuse to attend a medical examination under the Act if it is necessary to investigate his working or functional capacity for the purposes of the health requirements associated with the job.
Under the Act on the Protection of Privacy in Working Life (477/2001) an employer is also required to obtain medical data from the employee directly. In order to obtain information from other sources the employer must first get the permission of the employee. The object is to assess the employees’ capacity to perform the work or the need for training or other occupational development. The information so derived is considered ‘sensitive data’ for the purposes of the Personal Data Act (523/1999).
(b) The Status of the Obligation of Reasonable Accommodation. As already mentioned, under the Employment Contracts Act (2001) an employer is obliged to “strive to further the employees” opportunities to develop themselves
according to their abilities so that they can advance in their careers. It might be argued that this, when taken with the prohibition on ‘differential treatment’, requires ‘reasonable accommodation’. However, such an expansive interpretati