EUROPEAN MIRROR AN EXAMINATION OF DISABILITY LAW IN THE EU James Malone // LSJ 434 // 02.28.2007.

EUROPEAN MIRRORAN EXAMINATION OF DISABILITY LAW IN THE EU

James Malone // LSJ 434 // 02.28.2007

Major topics of this presentation We will cover disability law in the European

Union Soft law in the EU Hard law in the EU

Compare and contrast disability law in the EU To United Nations treaties To the ADA in the United States

Examine non-law instruments Questions and answers

•Facts•Policy structure•Institutions

(very short) European Union primer

European Union // 2007

•Supranational organization of European states

•Comprised of 27 (member) nations

•Dedicated to European Integration

•Approximately 48 million individuals in the EU have a disability

•1/6 EU citizens claims disability

Structure of EU policies

EU Policies are split into three main ‘pillars’ European Communities (EC)

Economic-oriented policies Common Foreign and Security Policy (CFSP) Police and Judicial Co-Operation in Criminal

Matters (PJCC) Policies on drug crime, organized crime and

terrorism Disability-related law can be found in the

EC and CFSP pillars

Important EU institutions

The European Council of Ministers Comprised of heads of state and ministers Main policy creation body for the EU

European Commission Drafts policy for the Council

European Parliament Democratically elected MPs Approves (with little power) Council actions

European Court of Justice Adjudicates disputes to EU law and member

disputes

•European Convention on Human Rights•European Convention on the Prevention of Torture•European Social Charter

Soft EU disability law

Origin of soft law in the EU

EU members have the option, at times, of signing and ratifying EU treaties

Process is similar to United Nations treaty ratification

Many EU treaties have no legally binding force A lack of legal force means they are inherently

soft Unlike UN treaties, there are not usually

Optional Protocol which give the treaty force

European Convention on Human Rights (ECHR) Comprised of five protocols Created in stages between 1950 and

1966 To become an EU member, the ECHR

must be nationally ratified Is similar to two UN treaties

International Covenant on Civil and Political Rights (ICCPR)

International Covenant on Economic, Social and Cultural Rights (ICESCR)

ECHR vs. UN

The ECHR contains similarities to the ICCPR and ICESCR All documents do not explicitly mention disability All documents contain articles guaranteeing basic

freedoms and negative rights The ECHR has a specific legal body, the

European Court of Human Rights, to investigate violations Findings of this court are non-binding advisory

opinions Most importantly, rights in all documents can

be read into cases dealing with disability

ECHR and disability law

Article 2 Guarantees the right to life Found in Article 6 of ICCPR

Article 3 Safeguards due process and liberty Found in Articles 9 and 10 of ICCPR

Article 6 Prohibits torture and inhumane or

degrading treatment Found in Article 10 of ICCPR

ECHR and disability law (cont.) Article 8

Secures the right to privacy Found in Articles 18, 19 and 22 in ICCPR

Article 14 Prohibits discrimination Found in Article 2 of ICESCR

Real application of ECHR

Price v. the United Kingdom The UK did not allow a female prisoner with a

disability to use her electric wheelchair Male attendant was provided to assist bathroom

trips ECHR found both violated Article 3

Botta v. Italy Italy blocked access to beaches and did not

provide accessible bathroom accommodations Court found Article 8 required Italy to

accommodate

European Convention for the Prevention of Torture (ECPT) Ratified by all EU member states in 2002 Allows members to modify their

commitment at any time Broadly prohibits torture and inhumane

treatment The ECPT is similar to the UN Convention

Against Torture Like the ECHR and CAT, the ECPT does

not mention disability

ECPT and disability law

ECPT created the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment

The ECPTIDTP has been granted access to various state mental health facilities

As a result, the ECPT has been used to assess the ‘health’ of EU mental care facilities

All opinions from the ECPTIDTP are non-binding and a state may curtail access at any time

European Social Charger (ESC) Has two different (notable) versions

Created in 1961 – did not mention disability Ratified by all EU members

Amended in 1996 – does mention disability Only ratified by 12 EU members

The ESC broadly guarantees social and economic human rights

The ESC is monitored by the European Committee of Social Rights (ECSR)

ESC compared to UN and US The ESC provides a unique example

where an existing document was amended

US and UN show new documents which were created to specifically deal with disability

ESC disability amendment

Article 15 of the ESC was amended to include disability: With a view to ensuring to persons with

disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular:

ESC Article 15

States must do the following (to facilitate mandate): Provide guidance, education and training to

individuals with disabilities Promote access to employment (may

require recourse or special placement) Promote full social integration and

participation

ESC Article 15 and the US/UN Article 15 is similar to the following articles

in the UN Convention on the Rights of Persons with Disabilities: 16 (4) - Appropriate measures to promote the

physical, cognitive and psychological recovery 19 - Living independently and being included

in the community Article 15 echoes finding in US ADA US

Congress in §12101(a)(8) on the need for integration

Use of the ESC in EU courts

Autism Europe v. France (13/2002 ECSR) France segregated children with autism

from the general school population France did not integrate students when

parents requested such action ECSR held that France violated Article 15 of

the ESC by purposely slowing integration France should integrate children with

autism

•Framework Directive on Employment Discrimination•Directive on Bus and Coach Design•Public Procurement Directive

Hard EU disability law

Origin of hard law in the EU

Hard law applies to all EU members equally unless specific exemptions or cases are created

Similar to federal law and US States

Slow movement towards hard law in the context of disability

Framework Directive on Employment Discrimination (FDED) Adopted by the Council in 2000 Loosely bans employment discrimination

based on: Religion Belief Disability Age Sexual orientation

FDED is very similar and different to the American ADA

Similarities between FDED and ADA FDED is similar to Title I of the ADA which

covers employment discrimination

Generally, the FDED prohibits discrimination in the hiring, employment and termination of individuals, including those with disabilities

Article 8 (2) of the FDED exempts the militaries within the EU

More (important) Similarities between FDED and ADA In the US, Supreme Court cases have

narrowed the scope of the ADA.

Article 4 of the FDED creates exemptions where it does not apply Permissibility of discrimination based on

occupational requirements “provided that the objective is legitimate and the requirement is proportionate.”

Formality of Sutton and Chevron-type restrictions

More (important) Similarities between FDED and ADA (cont.) Article 5 of the FDED requires reasonable

accommodation for individuals with disabilities Unlike the ADA, reasonable accommodation is

not well defined and left to member interpretation

Unlike ADA, failure to accommodate is not explicitly mentioned as discrimination (ECJ has no input yet)

Article 19 of the FDED requires the states to report on progress, similar to reporting provisions in the ADA (eg: Title II, §12209)

Private clubs and churches, like under ADA Title III, are exempt from the FDED

Important differences between the ADA and FDED Unlike in the ADA, the term disability is

not defined Definition is left to member states under

Article 2 (3) The FDED applies to small businesses and

self employment, whereas Title I of the ADA has exemptions

Article 7 in the FDED allows but does not require states to engage in equalization-oriented measures (affirmative action)

Important differences between the ADA and FDED (cont.) Article 10 of the FDED places the burden

of proof on the respondent to prove that discrimination did not occur

Articles 13 and 14 encourage information sharing and participation with NGOs

While the US ADA relies on federal agencies to propagate regulations, the FDED relies on member states

Tests of the FDED in courts

Archibald v. Fife Council (2004) Does reasonable accommodation under the

FDED and UK laws implementing the FDED allow modifying a test for an individual with a disability so they may be promoted to a new position as a result of their disability?

House of Lords held this was a reasonable modification.

This case expanded the scope of what constitutes a reasonable modification

(more) Tests of the FDED in courts Sonia Chacón Navas v Eurest SA (2006)

If an individual is fired from their employment based on a relatively common sickness, did employment discrimination occur on the basis of disability?

No, this is not a case of discrimination. Based on the exceptions of the FDED, the

court reasoned the individual in question was “not competent, capable and available to perform the essential functions of his post.”

Like the ADA, the FDED has been expanded and curtailed in court cases

Directive on Bus and Coach Design 2002 EU law mandating all buses and

coaches produced in the EU pass an accessibility test

This directive is in light of the American experience of trying to make public transportation accessible

The intent of this directive is covered in Title III of the ADA

Public Procurement Directive of 2004 This law guides the purchasing of member

governments in the EU

This law creates the possibility for redistribution in favor of individuals with disabilities by authorizing specific mandates and requirements on products and services

This directive states that redistribution is optional

Guiding EU policy

The FDED is an excellent example for the need to guide EU member policy

The EU has been trying to harmonize national laws for better cohesion

Policy recommendations are normative suggestions to member governments

Leading EU policy on disability Integration of Persons with Disabilities

Unit in the Council of Europe 2006-2015 action plan to further disability-

related law within the EU

Recommendation R (92) on a Coherent Policy for Persons with Disabilities

Questions?

Additional resources Ballinger, L. (2006, August 5). Bosses can reject job-

seekers just because they smoke. Daily Mail, p. 27.

Bell, M. (2000). European developments. Article 13 EC: the European Commission's anti-discrimination proposals. The Industrial Law Journal, 29(1), 79-84.

Convention on the Rights of Persons with Disabilities. (2006). Retrieved February 10, 2007, from UN ENable Web site: http://www.un.org/esa/socdev/enable/rights/convtexte.htm

Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. (2006). Retrieved February 10, 2007, from EUR-LEX Web site: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!

CELEXnumdoc&lg=EN&numdoc=32000L0078&model=guichett

Davies, J. (2003). A Cuckoo in the Nest? A 'Range of Reasonable Responses', Justification and the Disability Discrimination Act 1995. The Industrial Law Journal, 32(3), 164-184.

Disability Issues – Key Documents. (2007). Retrieved February 10, 2007, from EUR-LEX Web site: http://ec.europa.eu/employment_social/index/7003_en.html

GERMANY: EQUAL TREATMENT BILL TO PROVIDE BROAD PROTECTION AGAINST DISCRIMINATION. (2006, May 5). US Fed News Service, Including US State News, p. n/a.

Goldman, L. & Lewis, J. (2003). Employment's golden age. Occupational Health, 55(12), 12-14.

Quinn, G. R. (2007). “European Disability Law Outline.” Beijing, International Disability Law Seminar [Conference]. 11 Jan. 2007.

Rasnic, C. D. (2005). THE ADA-A MODEL FOR EUROPE WITH "SHARPER TEETH”? Labor Law Journal, 56(1), 59-67.

Wells, K. (2003). The Impact of the Framework Employment Directive on UK Disability Discrimination Law. The Industrial Law Journal, 32(4), 253-273.

Yenisey, K. D. (2005). Harmonisation of Turkish Law with EU'S Regulations in Respect of Equal Treatment. Managerial Law, 47(6), 235-256.