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Reasonable Accommodation and Disability -The new EC-Anti-Discrimination-Law

Rechtsanwalt Dr. Oliver Tolmein / Kanzlei Menschen und Rechte February 23, 2010

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• Agenda

Disability: medical model / social modelDisability in the Context of ECJ Decisions (Chacon,

Coleman…)Reasonable Accomodation

Meaning?Problems?

Resumè

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• Disability• 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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• Reasonable Accommodation – ECJ: Coleman-Case(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 – 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

– 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

– 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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• 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 ofTasks or the provisions of training

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Context of reasonable accomodationArticle 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 accomm. 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 legislationDifferent 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)

– Law only for severly disabled : § 81 (4) SGB IX:– Disabled employee accessible workspace, appropriate organisationof work, necessary resources

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Reasonable Accomodation (§ 80 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

Z.B. Lastenheber, Spezialmaschinen, unterfahrbare Werkbank– Arbeitgeber muss Bedarf konkret ermitteln (er weiß oft nicht was

erforderlich / geeignet ist)– Verfahrensvorschriften 84 SGB IX – Weite Pflicht zur Veränderung und Anpassung Arbeitsorganisation

(Pausen, Teilzeit, stressarm)

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• Othe Cases by german courts „reasonable accomodation“ 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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Vorläufige Fassung

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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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Vorläufige Fassung

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• United Kingdom• DDA requires reasonable adjustments• 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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Vorläufige Fassung

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• Deaf sign language tutor.disciplinary process because alleged breach of his contract of employment. – Employer instituted disciplinary procedure, but

failed to provide an independent BSL interpreter at hearings

– No clear written transcripts, or minutes, of those hearings. This prevented employee from being able to adequately present his case. settled before court hearing

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Vorläufige Fassung

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• Chacon-Decision (C 13/05)

– First ECJ decision mentioning „reasonable accomodation“

– Court ruled: No dismissal because of disability allowed / reasonable accommodation necessary if essential functions of post can be performed

– Didn`t apply this ruling in the case

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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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Reasonable Accommodation in cases of interviews• New situation (compared to 1990ies): Not necessary

to hide disability• Knowledge of disability is prerequisite for reasonable

accommodation• Knowledge of possibilities to accommodate for

disabled and for employers most important.

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– 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 barriers / chance to participation• Problem: Reasonable Accommodation might come late

(deaf people in application process)• Part of a changing image on Disability• Reasonable Accomodatio needs to be individualized /

supports individual needs• Dynamic concept /Needs development

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No reasonable accomodation available…

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Rechtsanwalt Dr. Oliver TolmeinKanzlei Menschen und Rechte Borselstraße 2822765 Hamburg0049-40-6000 947 000049-40-6000 947 47 (Fax)Germany tolmein@menschenundrechte.dewww.menschenundrechte.de

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