EU law against Disability Discrimination Álvaro Oliveira, European Commission, DG Justice, unit D1 Conference "From EU Citizenship to IBD-zenship", European Parliament, 17 October 2013

1) Directive 2000/78 Employment Equality Prohibition of discrimination on: Religion, disability, age, sexual orientation In : recruitment, working conditions (pay, dismissal), promotion, vocational training, Duty of reasonable accommodation (disability) Appropriate measures for persons w/disabilities to have access to, participate in employment, or have training, or promotion IF not impose a disproportionate burden Article 3 Scope 1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (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. Article 2 Concept of discrimination 1. For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any 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. 3. Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 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. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. 4. An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1.

2) Case Chacón Navas - 2006 disability ≠ illness A person dismissed only because of sickness is not protected by the Directive disability is a limitation - resulting from physical, mental or psychological impairments - hinders the participation in professional life - probable that it will last for a long time

3) UN Convention of Rights of Persons w/Disabilities – Jan.2011 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

4)Cases Ring & Werge April 2013 Employees suffering from chronic illnesses constant lumbar pain whiplash injury (road accident) Dismissals due to frequent absences from work DK law allows employers to dismiss employees who have received salary during periods of illness of more than 120 days (over 12 months) with a shortened notice period (1 month)

Questions referred to the Court Concept of disability Limited ability to carry out work = disability? Incurable / temporary diseases = disability? Court : Dir. 2000/78 interpreted acc. UN Convention Disability includes a condition caused by a (curable or uncurable) illness entails a long-term limitation hindering the participation in professional life on equal basis with other workers

2. Extent of duty to provide reasonable accommodation: reduction in working hours? Court: Yes, if no disproportionate burden 3. If absences caused by disability cause a dismissal = are they lawful? What if absence is due to lack of reasonable accommodation? Court: Lack of reas. accom.- Dismissal not lawful

Directive 2000/78 Recital 17: "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 …, without prejudice to the obligation to provide reasonable accommodation for people with disabilities." Article 4 Occupational requirements 1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 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.