european disability forum
Analysis of the EU Directive
On Equal Treatment in
Employment and Occupation
EDF 01/8 – July 2001
"States should recognise the rights of organisations of persons with disabilities to represent persons with disabilities at national, regional and local levels. States should also recognise the advisory role of organisations of persons with disabilities in decision-making on disability matters."
Rule 18 of the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities
Doc EDF 01/8 - Analysis of the EU Directive On Equal Treatment in Employment and Occupation
The document is available in English, and on diskette or in large-print upon demand from the EDF Secretariat, and when adopted will be published on the EDF Website at:
© Copyright European Disability Forum and Authors 2001. This document may be quoted and reproduced, provided the source is given
TABLE OF CONTENT
1Article 1......
1.1Definition of disability
1.2Medical model versus Social model
1.3The law and disability
1.4Need for a disability non-discrimination law
1.5Suggestion for action by EDF members
2 Article 2 : Discrimination......
2.1Article 2(2)(a): Direct Discrimination
2.2Article 2(2)(b): Indirect Discrimination
2.3Harassment
2.4Suggestion for action by EDF members
3 Article 3: Scope (Areas Covered by directive)......
3.1Areas covered by the Directive
3.2Areas not covered by the Directive
3.3Suggestion for action by EDF members
3.4About sheltered employment
4 Article 4: Occupational requirements......
4.1Suggestion for action by EDF members
5 Article 5: Reasonable accommodation for disabled
persons......
5.1 Factors for reasonable accommodation
5.2Suggestion of action by EDF members
6 Article 6: Justification of differences of treatment on grounds of age...
6.1Suggestion for action by EDF members
7 Article 7: Positive action......
7.1Article 7 (1) - measures
7.2Article 7 (2) – integration of people with disabilities
7.3Suggestion for action by EDF members
8 Article 8: Minimum requirements......
8.1Article 8(1) – protection of the principle of equal treatment
8.2Article 8(2) – non-regression clause
8.3 Suggestion for action by EDF members
Chapter II: Remedies and Enforcement......
9 Article 9: Defence of rights......
9.1Suggestion for action by EDF members
10Article 10: Burden of proof......
10.1 Suggestion for action by EDF members
12Article 12: Dissemination of information......
12.1 Suggestion for action by EDF members
13Article 13: Social dialogue......
13.1 Suggestion for action by EDF members
14Article 14: Dialogue with non-governmental organisations......
14.1Suggestion for action by EDF members
16Article 16: Compliance......
16.1 Suggestion for action by EDF members
17Article 17: Sanctions......
17.1 Suggestion for action by EDF members
18Article 18: Implementation......
18.1 Suggestion for action by EDF members
19Article 19: Report......
19.1 Suggestion for action by EDF members
ANNEX I: About the EDF and other documentation......
1Article 1
Article 1 of the Directive states that the purpose of the Directive is to ‘lay down a general framework for combatting discrimination’ on the ground of, amongst others, disability. However, the Directive does not define what is meant by disability and who should be covered by the protection from discrimination.
Member States, when adopting a national non-discrimination law to implement the Directive, will however have to develop a definition of the protected group.
The following comments are designed to advise disability NGOs on the points that they should be considering, and indeed the points that should be considered by national governments, when deciding what kind of definition to adopt.
Developing a legal definition of disability is challenging. At least two problems present themselves:
Firstly, disability is hard to define because, unlike race and sex, various conditions of the mind and body are involved.
Secondly, there is no consensus about what causes disability: medical conditions, environmental factors, or social behaviour?
1.1Definition of disability
There is no universal legal definition of disability which can simply be copied by all Member States when adopting non-discrimination law. Therefore a person who is legally recognised as disabled in one Member State of the European Union may not be so regarded in another EU Member State. Often there is not even a single definition of disability in one and the same country. In addition, research into biomedical and social science might result in the discovery of new disabilities, which are presently unknown or unrecognised. For a long time lawyers have tried to develop an open definition of disability which is broad enough to include various conditions of mind and body and that could be applied globally.
The World Health Organisation established an International Classification of Impairment, Handicap and Disability (ICIDH) in 1980 which was updated several times and totally revised in 2000 (ICIDH 2). While the first ICIDH has had an impact on the medical community and policy makers, it was not included in many disability laws. The ICIDH definitions were also criticised by the disability movement for being too medically oriented. ICIDH 2 can also not serve as a universal legal definition of disability, as it is much too long. However, the social-political paradigm shift which was the background to the development of ICIDH 2, is the second problem lawyers face when trying to legally define disability.
1.2Medical model versus Social model
Traditionally disability was described and perceived as a purely medical condition called impairment. This impairment was linked to all limitations a person with disability faces in daily life, e.g. a person in a wheelchair cannot walk and therefore cannot attend regular school or a blind person cannot read print and letters, and therefore cannot read a newspaper. This medical model of disability (which is also called the ‘individual model’) has been criticised because it sees the cause of the social problems faced by people with disabilities as lying in their personal sphere, i.e. as being caused by their physical or intellectual limitations. In contrast the social model of disability focuses on the environmental conditions which disabled people find themselves in and looks at how society at large responds to disability as a human the difference. According to the social model, disability is a social construct which is determined by the way people with disabilities are treated in society. Thus, the question of whether a person with a disability can attend regular school depends on whether the school site is accessible and the education is inclusive, rather than on the ability to walk. Likewise a blind person can read newspapers if the text is in braille or electronically accessible. Disability can also be legally constructed when the law says that some rights (e.g. the right to vote) can only be exercised by a person with a certain biological condition of the body and mind. According to the social model, disability based discrimination is an important factor in the social construction of disability.
1.3The law and disability
Modern disability law is confronted by these two challenges which pose difficult questions: Is there a universal comprehensive legal definition of disability? If the law itself constructs disability, does the law have to avoid a medical model of disability? How can a disability law define the group that should benefit from the law without referring to impairments?
The answer to the first question is clearly no! There is no universal legal definition of disability which can be included in all legislation. This is because laws have different purposes and it depends to a large extent on the purpose of the law as to which definition of disability should be used. For example, legislation which seeks to define who is eligible for social benefits, such as a disability pension, may make use of a definition of disability which is different from that found in labour law covering disabled workers.
The answers to the second and third questions are more complicated, and require further (legal) research. Whether or not we should always avoid medical definitions of disability needs to be discussed and further explored. A research project on this issue is currently being funded by the European Commission. For the moment there seems to be no alternative to making a link between disability and medical impairment; however, this should not prevent any country from adopting a comprehensive disability non-discrimination law. This is because the key definition question at the heart of such legislation can already be answered.
The important question is:
WHO SHOULD BE PROTECTED FROM DISABILITY-BASED DISCRIMINATION?
The answer is: EVERYONE WHO IS ADVERSELY AFFECTED BY THIS KIND OF DISCRIMINATION!
1.4Who should be protected from disability-based discrimination?
People who are adversely affected are not only those persons who have some kind of legally recognised disability. People can also be discriminated against because they have had a disability in the past, such as individuals who have been psychiatric patients or persons with a record of cancer. As a result of this history of disability these persons are often denied jobs, health insurance, or access to other facilities and opportunities necessary for a decent life. Similar acts of discrimination are experienced by persons who are likely to become disabled in the future. Given that genetic diagnosis is becoming increasingly common, the group of people who have knowledge about their future health status is increasing. Finally, individuals who associate with persons with a disability, such as those with a spouse or other family member with a disability, can also be adversely affected by disability based discrimination.
The group of individuals affected by disability based discrimination is therefore larger than the group of individuals in need of disability benefits, such as rehabilitation services or personal assistants services. Therefore, a comprehensive disability non-discrimination law should also cover a larger group of people than is covered by disability welfare law. A number of countries which have adopted comprehensive disability non-discrimination legislation within the last decade have adopted this approach. In addition to protecting persons who presently have a disability, legislation in some countries also protects persons who were disabled in the past (Australia, Canada, Hong Kong, New Zealand, the Philippines, the United Kingdom, and the USA), may be disabled in the future (Australia, Hong Kong, Sweden) or who are regarded as being disabled (Australia, Hong Kong, New Zealand, the Philippines, the USA). Furthermore, some laws also protects family members or other associates of disabled persons (Australia, Hong Kong, New Zealand, the Philippines, USA) as well as persons who are victimised because they made a complaint about discrimination or exercised other non-discrimination rights (Australia, Canada, New Zealand, the United Kingdom).
In sum, a disability non-discrimination law might not solve the long-standing problem of finding a universal comprehensive definition of disability that is not trapped in the medical model. But it should and could cover those persons who need protection against disability based on discrimination!
1.5Suggestion for action by EDF members
EDF members should endeavour to ensure that their national governments include a definition of disability based discrimination which is capable of covering all potential victims of such discrimination. This must go far beyond people entitled to claim disability social welfare benefits. This paper suggests that the following groups need protection:People who currently have a disability.
People who may have had a disability in the past.
People who may have a disability in the future.
Family members or people who associate with a person with a disability.
People who are victimised because they made a complaint about discrimination or exercised another non-discrimination right.
People who are regarded as falling into one of the above categories.
2Article 2 : Discrimination
Article 2 of the Directive addresses three sorts of discrimination: direct discrimination, indirect discrimination and harassment.
The first two forms of discrimination have been long recognised in European Community law with regard to sex and nationality discrimination, and Member States will have little or no discretion in deciding how to define these two concepts. This means that the input of interested third parties, such as disability NGOs, will also be restricted. It is nevertheless important that members of EDF are familiar with these key concepts.
The concept of non-discrimination is closely related to the principle of equality. Non-discrimination embodies the idea that the unequal - in terms of negative or adverse - treatment of persons should be prevented and combated. Depending on the law, various notions of discrimination can be identified (e.g. intentional versus unintentional discrimination). Under Community law two concepts of discrimination have developed which have deeply influenced national non-discrimination law in the Member States: direct and indirect discrimination.
2.1Article 2(2)(a): Direct Discrimination
Direct discrimination occurs when a person is treated less favourably than another similarly situated person on a prohibited ground of discrimination. These prohibited grounds of discrimination are exhaustively listed in Community law. Grounds which are not explicitly listed are not covered by the prohibition.
The covered grounds relate to personal characteristics of an individual or a group, such as sex or nationality and, since the Amsterdam Treaty, race or ethnic origin, disability, age, sexual orientation, religion or belief. Individuals sharing such a characteristic are usually called a "protected group". Direct discrimination takes place when a person is treated less favourably because of such a characteristic, and irrespective of intention. In such situations a classification is based on a prohibited ground of discrimination and is deemed unacceptable.
2.2Article 2(2)(b): Indirect Discrimination
In the 1970s the European Court of Justice - influenced by the American Supreme Court - recognised that (sex and nationality) discrimination may also take place when a seemingly neutral provision, criterion or practice has a significant adverse, negative or disparate impact on a protected group. This is known as indirect discrimination. The provision, criterion or practice therefore does not specifically refer to (the personal characteristics shared by members of) the protected group, but nevertheless disadvantaged members of this group who find it difficult to meet the required standard. In other words, a classification is being applied which has, more or less, the same negative effect as direct discrimination. This recognition was an important breakthrough and extension of the concept of discrimination. The prohibition of direct discrimination is unable to address "hidden" discrimination and some of the more structural forms of unequal treatment. Many of the latter have since been redressed by invoking the prohibition of indirect discrimination.
The concept of indirect discrimination, as it has evolved under Community law with regard to sex and nationality discrimination, has also been largely followed in this Directive. It is important to remember that indirect discrimination under Community law is commonly more difficult to prove than direct discrimination. Direct discrimination involves a differentiation made on a forbidden ground of discrimination. A comparison between individuals (e.g. between a male and a female employee or between a disabled and a non disabled student) will usually be sufficient to establish whether direct discrimination has occurred. Indirect discrimination involves a group based comparison; it requires that an adverse impact on one of the protected groups can be demonstrated. For this reason (statistical) data need to be collected showing the effects of the provision, criterion or practice on an entire group, and revealing that members of this group are substantially disadvantaged in comparison with the other group. The finding of such (statistical) data can often be very difficult. It is therefore good to note that with respect to this Directive, the requirements are somewhat lower. The Directive refers to persons "having a particular disability". This means that an alleged victim of disability discrimination does not need to demonstrate that disabled people in general are disadvantaged by a specific provision, criterion or practice, but "merely" people with the same disability (e.g. visually impaired people or wheelchair users). This is very important given that seemingly neutral classifications rarely adversely impact people with disabilities in general. Furthermore, the Preamble to the Directive (an introductory text which provides guidance on how the Directive should be interpreted) states that it is for the Member States, through their courts and other competent bodies, to decide on how to determine whether indirect discrimination has occurred. The preamble specifically states that Member States may provide for the use of statistical evidence. This means that Member States may exercise their discretion and choose not to rely on statistical evidence in some cases.
Both direct and indirect discrimination can be justified in certain cases. Under Community law, direct discrimination can only be justified in situations which are explicitly referred to as exceptions to the rule that adverse treatment is not allowed (e.g. in certain cases to protect pregnant women).
A presumption of indirect discrimination can, in individual cases, be justified when a sufficiently strong and objective reason exists. These reasons are, under Community law, called an "objective justification". The European Court of Justice has ruled that the indirect exclusion of members of a protected group can be justified where the defendant (e.g. employer) can convincingly show that the exclusion is 1) based on objectively justified factors unrelated to any discrimination; 2) meets a real need of the defendant; and 3) is appropriate and necessary. These criteria are also referred to in this Directive. The concept of objective justification can therefore only be invoked in an effort to justify indirect differentiation, and not to excuse direct discrimination.
In order to ensure that measures required under national legislation, including the making of a reasonable accommodation, cannot be challenged as a form of indirect discrimination which disadvantage people without disabilities (who are not entitled to e.g. employment under a quota scheme or a wage subsidy), an additional measure has been inserted into the Directive. Article 2(2)(b)(ii) states that the provision of such assistance shall not be regarded as a form of indirect discrimination.
Suggestion for action by EDF members
It is suggested that EDF members lobby their national governments to ensure that statistical evidence is not needed to establish indirect discrimination in the case of disability.2.3Harassment
Article 2(3) defines harassment as a form of discrimination which must be prohibited by the national anti-discrimination law. Harassment is defined broadly to include: “unwanted conduct [which] has the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment”. The Article specifies that Member States may define the concept of harassment “in accordance with the national laws and practice.” At the very least this national definition should include those elements already referred to in the Article. However, it seems that other aspects of harassment not defined in Article 2(3) remain a matter for national law; for example, the liability of employers, schools, universities, hospitals, landlords for failing to take adequate measures to prevent harassment.