Reasonable Accommodation and Disability - EC-Anti ... · 1 Reasonable Accommodation and Disability...

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1 Reasonable Accommodation and Disability - EC-Anti-Discrimination-Law and the Convention on the Rights of Persons with Disabilities 1

Transcript of Reasonable Accommodation and Disability - EC-Anti ... · 1 Reasonable Accommodation and Disability...

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Reasonable Accommodation and Disability -

EC-Anti-Discrimination-Law and the Convention

on the Rights of Persons with Disabilities

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• Agenda

Disability: medical model / social model / CRPD

Disability in the Context of ECJ Decisions (Chacon,

Coleman, Ring & Skouboe Werge…)

Reasonable Accomodation

Meaning?

Problems?

Resumè

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• Disability

Medical model of disability:

Result of a physical condition, intrinsic to the individual, may

reduce individual‘s quality of life and causes disadvantages.

=> curing/managing disability must be the way

• Not defined in Directive 2000/78/EC

• Disability in CRPD, Art. 1: no definition, disability

dynamic concept:

“Persons with disabilities include those who have long-term

physical, mental, intellectual or sensory impairments which

in interaction with various barriers may hinder their full and

effective participation in society on an equal basis with

others.”

=> Eliminate barriers

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• Disability in European Law

• ECJ: Chacon-Decision (C 13/05) – Spanish Case

– Person dismissed because of longer period of sickness

– Spanish Court: Discrimination because of long period of

sickness could amount to discrimination on grounds of

disability

– ECJ: sickness not disability

– 2000/78/EC doesn`t forbid discrimination because of

sickness

– „disability“ requires person concerned to be hindered to

participate in professional life

– Critique: medical model disability / focussing on limitation

caused by impairment

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• Disability

• ECJ: Ring & Skuboe Werge (C 335/11 und

337/11) – Danish Case

– Diability / Sickness

– Reasonable Accommodation

– Danish Law: Person absent because of Illness for at löeast

120 day/ previous 12 month: employer may terminate

employment contract with „shortened period of notice“ of one

month (§ 5 FL)

– Disability: long-term limitation, that results from impairments

and hinders participation of the person concerned in

professional life (regard to CRPD, Art 1)

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• Disability and Carers

– ECJ: Coleman-Case(C 303/06)

• English Case. Coleman alleges that she had been

subject to unfair constructive dismissal and had been

treated less favourably than other employees because

she was the primary carer of a disabled child.

• Does Directive protect only disabled themselves or does

it apply also to an employee who is treated less

favourably by reason of the disability of his child?

• Court: Directive applies not to a particular category of

person but by reference to the nature of the

discrimination.

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• Reasonable Accommodation – Art. 5 Dir. 2000/78/EC: “In order to guarantee compliance

with the principle of equal treatment in relation to persons

with disabilities, reasonable accommodation shall be

provided. This means that employers shall take appropriate

measures, where needed in a particular case, to enable a

person with a disability to have access to, participate, in or

advance in employment, or to undergo training unless such

measures would impose a disproportionate burden on the

employer. The burden shall not be disproportionate when it

is sufficiently remedied by measures existing within the

framework of the disability policy of the Member State

concerned.”

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• UN- Convention on the Rights of Persons

with Disabilities

– 2010/48/EG, November 26, 2009 (ABl. 2010, L 23,

S. 35)

– Reasonable accommodation" means necessary and

appropriate modification and adjustments not imposing a

disproportionate or undue burden, where needed in a

particular case, to ensure to persons with disabilities the

enjoyment or exercise on an equal basis with others of

all human rights and fundamental freedoms (Art. 2)

– General duty for State Parties (Art 5), Liberty (Art 14),

Education (Art 24), Work and employment (Art 27)

– Ensure/ Enable

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• Reasonable Accommodation 1

– For the disabled reasonable accommodation is the

key term of 2000/78/EG: Realisation of equal

treatment in employment and occupation.

– substantial equality concept (vs. formal equality)

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• Reasonable Accommodation 2

– Objective: Combating discrimination on grounds of

disability

– Means: Reasonable Accommodation

– appropriate measures/ needed in a particular

case to enable a individual person with a disability

– Have access to / participate in / advance in

employment

– Limit: No disproportionate burden to employer

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• Reasonable Accomoodation 3 / Directive 2000/78

• Recital 16, 17, 20, 21 – 17: Limits of Reasonable Accomodation

• Individual must be competent, capable and available to perform essential functions of the post concerned

• if not: no claim for recruitment, promotion, maintenance

• 20: Appropriate Measures • Effective and practical measures

• Adapt workplace to disability

• For example: adapt premises and equipment, Change patterns of working time, distribution of

Tasks or the provisions of training

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Context of reasonable accomodation Article 2 II b) ii)) Discrimination

– No indirect discrimination if there is a legal obligation for

Appropriate measures (in line with article 5) to eliminate disadvantages that could constitute discrimination

Article 5: Reasonable Accommodation

– No kind of special treatment or charity

– Removes discriminatory barriers for individual

– No positive action in favor of disabled as a group, but breaking down stereortypical prejudices that have limited opportunities for disabled

Article 7 II positive Action

– National law is allowed to promote integration of disabled (as a group) in working environment

– Also allows protective provisions (can result in discrimination)

– No duties

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Limits of obligation to provide reasonable

accomodation • What is the relation between

„reasonable“ and „disproportionate“? Are costly accommodations unreasonable? Original US-law: reasonable means effective and cost aspects shall only be considered under „disproportionate burden“

• Recital 21: – No disproportionate burden

– To determine: Take in account financial and other costs

– Scale and financial resources of organisation or enterprise

– Possibility of obtaining public fundig or other public

assistance

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Disproportionate burden:

• Article 5 (3): no disproportionate burden, if:

– Sufficiently remedied by measures within

framework of disability policy of member state

Important role of national legislation

Different level of reasonable accomodation for

people with disabilities in different member states?

• Enterprise obliged to apply for remedies?

– No, but if not: no disproportionate burden

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2000/78/EC Résumé

• Aim: Prevent from discriminating disabled not only a question of omitting inacceptable behaviour

• Individual requirements regarding disability need to be fulfilled

• Problems: Initiative for reasonable accomodation? Duties of disabled person (notification)? Employers duty to investigate? Burden of proof?

• Time of Reasonable Accomodation? – permanent? Best for disabled

– But: no individual case.

– Time of application/ hiring

• Mandatory / but no disproportionate burden

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Experiences

• Germany:

– Reasonable Accomodation not part of the

Antidiscrimination-Law „AGG“

– SGB IX: Disability Law (rehabilitation,

participation, workplace)

– SGB IX- Law only for severly disabled : § 81 (4)

SGB IX: Disabled employee accessible

workspace, appropriate organisation

of work, necessary resources

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Reasonable Accomodation (working

environment):

• Employee is qualified for duties of the job

• Employer is aware of needs of employee

• With reasonable accommodation employee

can perform duties of the job

• Reasonable accommodation doesn`t pose a

disproportionate burden

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Reasonable Accomodation is different

from:

General accessibility standards

internet

Buildings

Work space

Positive action measures

Quota

Campaigning

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Reasonable Accomodation (§ 81 SGB IX)

case law (by labour courts)

BAG „Flachschleifer“-Fall (surface grinding)

– Employee needs to lift work pieces 30 kg and

more

– After operation couldn`t lift more than 10 Kg

– Employer dismissed him

– BAG: Appropriate Accomodation change of

work organisation, special machine for work

pieces of 10 kg. Dismissal unlawful – (BAG vom 14.3.2006, 9 AZR 411/05)

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• Other Cases by german courts „reasonable

accommodation“ for serious disabled

• Reasonable Accommodation =/= Best

imaginable Accommodation

• Different possibilities to accommodate:

Employer has right to decide

• But: Right of self-determination § 9 SGB IX

• Example: Working Assistant for blind

computer specialist/ Sign Language

Translator for deaf lawyer

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• Case Law other Countries

• Ireland : Requirement to provide reasonable

accommodation since 1998, provision has

been amended to incorporate requirements of

2000/78/EC

• Harrington v. East Coast Area Health Board

– Wheelchair user

– Pre employment interview was held in

inaccessible venue

– Equality Officer: Failure to provide reasonable

accommodation for claimant

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• A computer component company v. A Worker – Employee with epilepsy could not operate heavy machinerie

– Court decided: Operations of heavy machinery is minor part

of production system, arrangements need to take place to

ensure A doesn`t need to operate these machinerie

• An Employee v. A Local Authority – Employee had brain damage, newly employed als clerk,

problems at workplace because he needed longer to

become accustomed to new work organisation

– Tribunal: Reasonable accomodation Job coach for up to 3

month

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• United Kingdom

• DDA requires „reasonable adjustments“ (so

does Equality Act 2010,also for services and

goods))

• DRC cases:

– Employee with learning difficulties employed by

restaurant. Reasonable adjustment to his job

description : Needs not operate the till, as he

found it too difficult. Later, he was forced to do till

work and because he made errors he was

dismissed from his job. Confidential settlement

of Case

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• No court case:

• Frieda, 47-year-old receptionist with arthritis

developing in her hands.

• writing with a standard pen increasingly painful. She

got ‘sticky’ pens with a larger barrel.

• Condition progressed, new phone without ‘fiddly

buttons’.

• Later a reception assistant took out all the patients’

files at the beginning of the sessions and re-filed

them at the end because Frieda was no longer able

to do this.

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• ECJ: Ring-Decision (C 335/11)

– 2nd ECJ decision mentioning „reasonable

accomodation“

– Court ruled: No dismissal because of disability

allowed / reasonable accommodation necessary if

essential functions of post can be performed

(Chacon)

– Reasonable Accommodation can be the right to

work part-time

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• European Schools Complaint Board Decision

Katsioulis 09/14

• European Schools: International Body • Only a Complaint Board Decision/ No possibility to appeal / School has

legal possibility to declare itself incompetent for a child

• Case: Autistic Child in School, parents wanted a specific method to

treat him(ABA), Doctors recommended this method, school favored

only an assistant – decided on this base after three month to declare

itself incompetent.

• Complaint Board had to decide: what is the measure reasonable

accomodation? What child and parents think is reasonable? Or what

the school thinks?

• Complaint Board: Experts of the school can decide what reasonable

accomodation is.

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– Examples für RA • Sign Language Interpreter

• Premises without barriers (wheelchairs, but also blind, learning disabled)

• Possibility to have a guide dog

• Possibilities to write (on computer) for blind or people without arms

• Possibility to give written answers for stammerer

• Appropriate more time for disabled in case of assessment test

• Documents in easy language

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Resume

• Disability: Distinction Disability/Sickness

• Focus not only on Disabled, but Discrimination on

grounds of Disability

• Reasonable Accommodation: powerful instrument

overcome exclusion / chance to participation

• Problem: Reasonable Accommodation might come late

(deaf people in application process)

• Part of a changing image on Disability

• Reasonable Accomodation needs to be individualized /

supports individual needs (creatie process)

• Dynamic concept /Needs development

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Not available…

Limits of Reasonable

Accommodation

Not helpful

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Rechtsanwalt Dr. Oliver Tolmein

Kanzlei Menschen und Rechte

Borselstraße 26

22765 Hamburg

0049-40-6000 947 00

0049-40-6000 947 47 (Fax)

Germany

[email protected]

www.menschenundrechte.de

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