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
www.menschenundrechte.de
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