Non Discrimination Legislation on Disability

DISABILITY INTERGROUP

meeting of disability experts:

Disability Articles in the new Non-discrimination directive

5 November 2008

European Parliament

Brussels

REPORT

The meeting was opened by President of the Disability Intergroup Richard Howitt MEP who thanked speakers participants for coming.

President informed the participants that the Commission proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (Article 13 Directive) was adopted on 2 July 2008.

Under Article 13 EC, the European Parliament is consulted. Two parliamentary committees – the Civil Liberties (LIBE) Committee and the Employment and Social Affairs (EMPL) Committee - are jointly responsible for drafting the European Parliament’s position. EMPL is leading on disability aspects of the proposal.

EMPL Committee Rapporteur on the Directive Liz Lynne MEP presented her draft report on the Directive. She thanked the European Disability Forum and other stakeholders for their input in the report and expressed the hope that the productive cooperation will continue.

The Rapporteur explained that because of the short time allocated for drafting the report, a few issues of concern have remained, but they will be addressed by the Rapporteur in her amendments.

The most important points in her report include:

- Equal protection against discrimination for all groups enumerated in Article 13 EC;

- Definition of disability must be wide enough to include long-term illnesses (such as cancer or HIV) and draw on the experiences;

- References to Multiple Discrimination, as well as Design for All must be included;

- The Directive must be a step towards implementation of the UN Disability Convention.

Politically, it is important to get the consensus at the European Parliament among the pro-directive Political Groups in order to convince the skeptical EPP Group and the Member States that are against the Directive (some of whom resist the European legislation despite already having strong national anti-discrimination legislation).

The Rapporteur said that the benefits of anti-discrimination legislation to businesses have been demonstrated by the Americans with Disabilities Act that opened up the markets for businesses.

Professor Lisa Waddington of Maastricht University addressed three concerns often raised by the Member States and the industries in relation to anti-discrimination legislation:

- What is meant by “disability” and “discrimination on the grounds of disability””

o Absence of a common definition of disability leads to different levels of protection in different Member States

o To move forward on implementation of the UN Disability Convention, the Convention guidance on disability should be used in the European Directive

o The European definition should include ‘discrimination by association’ with someone who has a disability

- How to ensure accessibility:

o The proposed Article 4 is in principle a welcome element but the wording, as it stands, is too vague and unclear and contains too many limitations on the obligation to provide accessibility

o The limitations should be restricted to disproportionate burden and the exemption of provision of accessibility results in having to fundamentally alter the nature of service

- Cost of providing accessibility:

o The ‘disproportionate burden’ safeguard would make sure that excessive costs would not be imposed on the service provider;

o The experience has shown that the relevance of cost of sometimes overestimated; cost is rarely the reason for objecting to a reasonable accommodation.

Full Professor Waddington’s presentation is attached to this report.

Dr Anthony Williams of the Austrian Disability Council presented the positive example of the changes brought about by the Austrian Federal Disability Equality Act that entered into force in 2006.

The adoption of the Act was preceded by intense discussions between the stakeholders. Not only the industry, but also the disability community had concerns over the cost of obligations under the Act (which later proved to be unfounded).

The Act contains a far-reaching definition of disability, and protection is also extended to a group of certain relatives of persons with disabilities.

While the Act doesn’t define accessibility per se, it takes the approach of investigating whether the person is discriminated against in a specific situation. In assessing the facts, the tribunal takes into consideration the financial capabilities of the service provider, the availability of subsidies (which can only be claimed by private parties, not public bodies!) and the time that has elapsed since the adoption of the Equality Act.

The Austrian legislation provides for a “graduated realization plan” (Etappenplan) that foresees the gradual improvement of accessibility of all infrastructures. Most public bodies are obligated to draw up an Etappenplan on accessibility in cooperation with the disability community.

Before going to the court, the alleged victim must go through a mandatory reconciliation procedure. The experience has shown that most cases get resolved at this stage to the satisfaction of all parties. This procedure is simple, free of charge for the disabled person and only takes up to 60 days.

Three years after the adoption of the Act, the experience has shown that the Austrian courts are not overburdened by discrimination cases.

Full Dr Williams’ presentation is attached to this report.

Contributions from the floor:

Kathalijne Buitenweg MEP, Civil Liberties (LIBE) Committee Rapporteur on the Directive raised the dilemma of how specific the Directive should be: on the one hand, an overly general Directive will result in the courts having to interpret the legal principles, and on the other hand – too detailed obligations will be impossible to adapt to 27 jurisdictions.

Mme Buitenweg inquired if the Austrian legislation was less demanding than the European proposal. In response, Dr Williams suggested that the Austrian law is more flexible and focuses on the individual rather than general public.

Meelis Joost from the Estonian Chamber of Disabled People / European Economic and Social Committee inquired about the extent to which the service providers have to go in order to comply with the accessibility obligation – would a restaurant be obliged to move its premises if it wasn’t possible to make them accessible or would it amount to disproportionate burden or a fundamental alteration of the service provided by the restaurant? In response, Prof Waddington made a distinction between the obligation to provide accessibility by anticipation (AA) and reasonable accommodation (RA) – the two approaches that complement each other. Either disproportionate burden or fundamental alteration can be used as defence against AA, whereas only disproportionate burden should be used to justify the denial of RA. In the given example, moving the premises would amount to disproportionate burden in relation to AA, but it doesn’t mean that the restaurant is automatically exempt from other measures that may serve the goal of accessibility (such as accommodating the needs of an individual disabled customer, if reasonable).

Ima Placencia from the Disability Unit at the European Commission wondered about the interplay between the Design for All and assistive devices. Dr Waddington replied that Design for All is one of the means of achieving accessibility, and it must be combined with other means (including immaterial ones, such as changing attitudes). The assistive devices (incl guide dogs) are important to achieving accessibility and should be covered by the Directive; however, it is unclear how to refer to these in the text. This should be possible if the whole Directive was seen through the prism of the UN Disability Convention.

Liz Lynne MEP supported the point on Design For All and the importance of being in compliance with the UN Convention.

Kathalijne Buitenweg MEP thanked the Commission for the proposal and Liz Lynne – for the draft EMPL report but stressed that the great resistance to the Directive from the Council who worry about the lack of Community competencies to pass such a Directive, the cost sof accessibility and the economic implications.

For information:

Steps / LIBE / EMPL
exchange of thoughts / 13 NOV 2008 / 5 NOV 2008
seminar and hearing / 2 DEC 2008
presentation of the draft report / 21-22 JAN 2009 / 17 OCT 2008
deadline for tabling amendments / 27 JAN 2009 / 13 NOV 2008
Adoption report in libe committee / 17 FEB 2009 / 21 JAN 2008
vote in plenary / MAR 2009

Janina Arsenjeva

Secretariat

EP Disability Intergroup

13 November 2008