2. Workshop on Employment of Disabled People in South-West Bulgaria Sofia, Bulgaria 26 February 2010 pilar.rivas.vallejo@ub.edu Pilar Rivas Vallejo Пилар Ривас Валехо Университет в Барселона

3. Introduction to the European anti-discrimination legislation towards people with disabilities and the Council Directive 2000/78/EC Въведение в Европейската анти-дискриминационно законодателство към хората с увреждания и на Директива 2000/78/ЕО на Съвета

4. Article 13 TEC encourages the Council to take necessary measures against discrimination based on disability, fruit of which is the Directive 2000/78 of 27 November 2000.

6. Instruments Directive 2000/78 Community Action Program to combat discrimination, with 3 priorities ECJ Judgments Chacón Navas v Eurest Colectividades (Case C-13/05, 11 July 2006) Coleman v Attridge Law and Steve Law (Case C-303/06, judgment 17 July 2008)

7. Deepening understanding (Education campaigns) Building capacity of organisations (European disability forum and others) Raising awareness of new laws Awareness-raising activities EU information campaigns

8. COUNCIL DIRECTIVE 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation  is the current and basic legal framework in the field of discrimination based on disability regarding employment and occupation. with the help of ECJ Judgments Chacón Navas (C-13/05, of July 11, 2006) Coleman (18-07-2008)

9. EU non discrimination law Field of application: 4 degrees: 1. Comprehensive application: nationality within the EU (art. 12(1) EC). 2. Very broad: race or ethnic origin (Directive 2000/43/EC) 3. Middle/narrow: gender (Recast Directive 2006/54/EC) 4. Very narrow: religion or belief, disability, age, sexual orientation (Directive 2000/78/EC)

10. Nationality Race or ethnic origin Gender Religion or belief, disability, age, sexual orientation

11. DISABILITY and discrimination DISABILITY and discrimination

12. Directive 2000/78/EC Employment Framework Directive

13. Directive 2000/78/EC only covers: 1.Employment 2.Self-employment 3.OccupationBut: Exemptions in the armed forces [art. 3(4)]

14. 1.Access to employment 2.Recruitment and promotion 3.Access to vocational guidance and training 4.Employment and working conditions (including dismissals and pay) 5.Membership in a professional or work related organisation 6.Self-employment 7.Occupation Material scope

15. Article 3 (1): (a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations.

16. 1.Before the selection process for access to employment, employment 2.Victims of discrimination are both effective candidates as potential candidates for employment And even… Case Feryn Centrum voor voor Kansas gelijkheid van racismebestrijding / Firma Feryn NV, Case C-54/07

17. Directive 2000/78/EC does not cover: 1.Social Security 2.Occupational Social security 3.Education 4.Goods and servicese available to the public

18. Personal scope Any employee engaged in a labour relation at the covered places

19. Public Administration Public jobs Private employment (both the public and private sectors, including public bodies) Art. 3 (1) Work places of application

20. equal treatment and opportunities in employment for disabled people PurposePurpose

21. MAIN CONCEPTS MAIN CONCEPTS

22. Equal treatment = same treatment or different treatment depending on the situation

23. Same treatment = The right to equal or same treatment in a comparable situation As a result of a direct less favourable treatment As a result of an apparently neutral provision, criterion or practice

24. Different treatment Possibilities to treat differently Duty to treat differently Reasonable accommodation (art. 5) Occupationa l requirement s (art. 4) Positive action (art. 7) Public security, order, health and the protection of the rights of other individual [art. 2(5)] Objective justificati on (art. 14 EC Treaty) ECJ Jurisprudence has defined the concept of “ legitimate aim ”. The ECJ itself legitimized the so called indirect discrimination or unequal treatment on the basis of any valid reason, objective and reasonable.

25. Definitions Discrimination DIRECT DISCRIMINATION “Where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of disability” INDIRECT DISCRIMINATION “Where an apparently neutral provision, criterion or practice would put diabled persons at a particular disadvantage compared with other persons, unless that provision… is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”

26. Discrimination Forms of discrimination 3 historical definitions: 1.- Originally: “unequal treatment of comparable situations explicitly based on the prohibited criterion” 2.- ECJ case law: direct and indirect discrimination 3.- The most recent directives: four forms of discrimination: Directive 2000/78/EC Direct discrimination Indirect discrimination Harassment Instruction to discriminate

27. Definitions Other “new” legal forms of Discrimination HARASSMENT “When an unwanted conduct related to disability takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment” INSTRUCTION TO DISCRIMINATE No legal definition = when a person instructs another person to engage in direct or indirect discrimination or in harassment against a disabled person INSTRUCTION TO DISCRIMINATE No legal definition = when a person instructs another person to engage in direct or indirect discrimination or in harassment against a disabled person

28. harassment is a form of discrimination, when unwanted conduct related to disability takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment article 2 (3)

29. Coleman Judgment (Recital 61) since harassment is deemed to be a form of discrimination within the meaning of Article 2(1) of Directive 2000/78, the same rules regarding the burden of proof must apply to harassment (we will be back to this issue later)

30. Definitions A “new” form of Discrimination (under construction) MULTIPLE DISCRIMINATION The situation resulting from DISABILITY + OTHER GROUND OF DISCRIMINATION (gender, race…) PROBLEM: No specific solutions yet The product is a plus of discrimination A “new” form of Discrimination (under construction)

32. “New” interpretations by ECJ Coleman Judgment the prohibition of harassment laid down by those provisions is not limited only to people who are themselves disabled the Directive also protects employees who are treated less favourably or harassed because of their association with a disabled person Discrimination by association British Equality Bill : because the victim is wrongly thought to be disabled In this case, related to the disability of her child

33. DISABILITY/EMPLOYMENT under Directive 2000/78 DISABILITY/EMPLOYMENT under Directive 2000/78

34. Issues Key

35. Issue 1. A definition of disability? Issue 3. Giving a disable person an employment’s opportunity: the reasonable accomodation Issue 2. Discrimination & employment Issue 4. Scope of the protection

36. Issue 1. A definition of disability?

37. No legal definition for “disability” The Council Directive does not define “disability” for the purpose of the law.

38. Chacón Navas Judgment, Recital 40: it follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question. Chacón Navas Judgment, Recital 40: it follows from the need for uniform application of Community law and the principle of equality that the terms of a provision of Community law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the Community, having regard to the context of the provision and the objective pursued by the legislation in question.

39. Chacón Navas Judgment, Recital 40 (2): “an ‘autonomous and uniform’ Community meaning should be given to concepts, like disability, where no express reference is made to the MS’s competence in the Directive”.

40. Chacón Navas Judgment, Recital 43: “...the concept of “disability” must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.”

41. Chacón Navas Judgment : by using the concept of ‘disability’ in the directive, the legislature deliberately chose a term which differs from ‘sickness’.

42. ECJ - Chacón Navas Judgment /Coleman Judgment- ‘disability’ ≠ ‘sickness’ ECJ - Chacón Navas Judgment /Coleman Judgment- ‘disability’ ≠ ‘sickness’

43. ECJ - Chacón Navas Judgment- there is nothing in the directive to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness. ECJ - Chacón Navas Judgment- there is nothing in the directive to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness.

44. The two concepts cannot simply be treated as being the same. So the scope of the protection provided by the Directive must be limited to permanent and declared situations of sickness and incapacity

45. Issue 2. Discrimination & employment

46. Prohibition against discrimination on the ground of disability ≠ the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training.

47. Prohibition against discrimination on the ground of disability ≠ the armed forces and the police, prison or emergency services to recruit or 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

48. disability cannot be a reason to deceive a difference of treatment (a less favourable treatment) in access and employment conditions …so…

49. Any measures regarding the need to take appropriate action for the social and economic integration of disabled people. Reasonable accomodation Positive actions

50. Special requirements for the post Disproportionate burden (reasonable accomodation)

51. Special requirements for the post Member States may provide that a difference of treatment which is based on a characteristic related to the ground of disability shall not constitute discrimination 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 legitimate and the requirement is proportionate.

52. e.g. perfect vision to fly a plane, physical form to perform the tasks of a fire- man, etc.

53. 1./genuine and determining occupational requirement 2./the objective is legitimate and the requirement is proportionate =essential requirement to the activity concerned two conditions for the exemption in order to be admitted

54. “This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.” Chacón Navas judgment

55. the prohibition is consistent with any measures intended to prevent or compensate for disadvantages suffered by disabled people (=article 48 (2) of the Bulgarian Constitution) Extent of the prohibition: the positive actions

56. Positive Action = the prohibition of discrimination admits the adoption of specific measures to prevent or compensate for disadvantages linked to disability

57. BULGARIAN LEGISLATION Constitution, art. 48(2) “the State shall create conditions conducive to the exercising of the right to work by the physically or mentally handicapped” No specific reference to “equality on the ground of disability”—general provision

58. BULGARIAN LEGISLATION Law Of Integration Of The People With Disabilities “Obligation of the employer to adapt the working place to the needs of the person with disabilities at hiring or when the disability of the person occurs after his hiring to work. Article 24 unless the expenses for this are unjustified big and would seriously impede the employer Reasonable accommodation of the Directive + reservation of workplaces for people with durable disabilities =

59. Legal provisions on health and safety at work Directive 89/391 regarding health and safety at work which protects disabled persons. Facilities for safeguarding or promoting their integration into the working environment disability policy / public employment policy. …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…

60. reasonable accommodation means to take in consideration the disability of the employee in order to take appropriate measures to guarantee a proper adaptation of his/her post; appropriate measures are to be taken by the employers, 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; the obligation only remains in case of being a proportional burden on the employer; the extent of this obligation depends on the disability policy carried out by the Member State. Key issues

61. Giving a disable person an employment’s opportunity: Issue 3. Giving a disable person an employment’s opportunity: The Reasonable accomodation

62. Reasonable accommodation  the obligation to provide reasonable accommodation for people with disabilities, and the prohibition to take measures against the employee’s rights (the right to maintain his/her job) justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his post.

63. employers  obligation to 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 Limited obligation

64. employers employers  the obligation only remains in case of being a proportional burden on him not in case of disproportionate burden on the employer

65.  The obligation shall not be disproportionate when: it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned

66. Issue 4. Scope of the protection

67. The employee itself + Any person related to the employee when his disability is the reason for the discrimination Personal extent of the prohibition Coleman Case Do remember… discrimination by association

68. protection can be claimed by any person with a legitimate interest, including a public entity defence functions of equality Who can claim against the employer? Case Feryn

69. LEGAL INSTRUMENTS OF PROTECTION LEGAL INSTRUMENTS OF PROTECTION

71. EmployerEmployee Prima facie facts No discriminatory practice Special occupational requeriments Objective reason Shift of the burden of proof

72. Shift of the burden of proof in the event that an employee establishes facts from which it may be presumed that there has been harassment, the effective application of the principle of equal treatment then requires that the burden of proof should fall on the respondents, who must prove that there has been no harassment in the circumstances of the present case (recital 62 of Coleman Judgment)

73. ACCOMODATION OF BULGARIAN LEGISLATION TO COUNCIL DIRECTIVE 2000/78 No specific reference to “equality on the ground of disability”—general provision = Reasonable accommodation of the Directive + reservation of workplaces for people with durable disabilities

74. You may read my written presentation for further information

75. Много ви благодаря за вниманието! Mnogo blagodarya!