ECJ Rulings with Regard to Discrimination

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ECJ Rulings with Regard to Discrimination on the
Grounds of Disability Case C-13/05 Chacón Navas
Prof. Lisa Waddington, European Disability Forum
Chair in European Disability Law, Maastricht
University
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1. Introduction

• The Directive prohibits discrimination on the
  grounds of disability and provides for reasonable
  accommodations for persons with disabilities.
• First preliminary references concerning
  disability focused on the question of who is
  protected from discrimination?
• Coleman discrimination by association on the
  grounds of disability
• Chacón Navas who is to be regarded as a person
  with a disability for the purposes of the
  Directive?

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2. The Chacón Navas Judgment Introduction (1)

• Ms. Chacón Navas was dismissed after a prolonged
  period of absence due to illness.
• Did this amount to discrimination prohibited by
  the Directive?
• Preliminary reference asked
• Whether the provision of the Directive which
  prohibits disability discrimination, also
  protected a worker who had been dismissed solely
  because she was sick?
• Alternatively, could sickness be added to the
  list of protected grounds covered by the
  Directive?

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2. The Chacón Navas Judgment - Introduction (2)

• The ECJ addressed three issues in its judgment
• Elaboration of a definition of disability for the
  purposes of the Directive
• Whether sickness could be added to the list of
  protected grounds
• The obligation to make a reasonable accommodation
  for a worker with a disability

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3. A Definition of Disability (1)

• Elaboration of a definition of disability for
  the purposes of the Directive
• The Court defined disability for the purposes of
  the Directive asa limitation which results in
  particular from physical, mental or
  psychological impairments and which hinders the
  participation of the person concerned in
  professional life

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3. A Definition of Disability (2)

• ECJs definition has been criticised for being
  based on the medical model of disability.
• Disability is defined as a limitation resulting
  from an impairment.
• Judgment does not refer to or recognise the
  social model of disability.

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3. A Definition of Disability (3)

• For any limitation to be regarded as a
  disability, it must be probable that it will
  last for a long time
• Disability is different from sickness, and
  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.
• Courts definition of disability is autonomous
  and uniform.

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3. A Definition of Disability (4)

• The Chacón Navas Definition of Disability and
  National Law
• i. No definition of disability in
  non-discrimination law courts should follow
  Chacón Navas definition.
• ii. Definition of disability in
  non-discrimination law which is similar to
  that found in Chacón Navas.
• iii. Definition of disability for
  non-discrimination law which is taken from
  national law which provides for disability social
  security benefits.
• iv.Two definitions of disability in two
  non-discrimination laws.
• Definition used with regard to reasonable
  accommodation is
• same as definition used in the context of
  social security.

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3. A Definition of Disability

• These last two approaches seem to breach the
  Directive and are not compatible with the
  judgment in Chacón Navas.

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4. Whether sickness could be added to the list of
protected grounds (1)

• Sickness could not be added to the list of
  grounds covered by the Directive.
• But the judgment may leave the way open for
  people who have a long term illness which does
  cause the required degree of limitation to be
  regarded as disabled for the purposes of the
  directive.

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5. The Obligation to Make a Reasonable
Accommodation (1)

• ECJ recalled that Article 5 of the Directive
  requires employers to make reasonable
  accommodations for people with disabilities
• That provision states that this means that
  employers are 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, unless such
  measures would impose a disproportionate
  burden.

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5. The Obligation to Make a Reasonable
Accommodation (2)

• The ECJ stated
• The Directive prohibits dismissals on the ground
  of disability.
• Under the Directive, an employer cannot dismiss
  an employee where the employee would be able to
  do the job if a reasonable accommodation were
  made.
• An employee is able to do the job if s/he is
  competent, capable and available to perform the
  essential functions of the post concerned if a
  reasonable accommodation were made. (Recital 17)

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5. The Obligation to Make a Reasonable
Accommodation (3)

• Person is to be judged on the basis of what they
  can do after a reasonable accommodation has been
  made.
• Distinction has to be made between the essential
  functions which an individual must be able to
  perform after the accommodation has been made
  and non-essential functions.

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5. The Obligation to Make a Reasonable
Accommodation (4)

• Employer is not allowed to consider the cost of
  making the accommodation when comparing
  candidates, i.e. fact that one candidate needs an
  accommodation is irrelevant.
• Person who cannot carry out the essential
  functions, even after an accommodation has been
  made, is not qualified.