Employment Equality Directive Research Articles

The Employment Equality Directive and Access to Justice for Persons with Disabilities: Some Reflections in Light of Tartu Vangla and Komisia za Zashtita ot Diskriminatsia

The Employment Equality Directive and Access to Justice for Persons with Disabilities: Some Reflections in Light of Tartu Vangla and Komisia za Zashtita ot Diskriminatsia

On the obligation to make reasonable accommodation for an employee with a disability

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) features interesting labour law related aspects. The goals of this article are to reconcile horizontal human rights and contract law in the context of reasonable accommodation in working life and to establish guidelines by which to assess the obligation to make accommodation, for example in relation to the EU Employment Equality Directive. This article utilises the framework of just social practice, which makes reference to welfarism in Nordic contract law. Just social practice creates a theoretical framework in which to investigate the rights and obligations attached to reasonable accommodation in working life, because it may be argued that its basic premises correspond to the ultimate justification of the accommodation rights provided for by the UNCRPD: the idea of social inclusion. The first part of the article seeks to identify common features between the UNCRPD and contract law. It sketches the theoretical framework of just social practice, in which contract law and human rights coincide within the context of employment. The second part of the article elaborates what the process of reasonable accommodation within the framework of just social practice constitutes and introduces specific steps that are followed when the right to accommodation is in question. The article also identifies the factors that have an influence on reasonableness evaluations as being either internal or external to the contractual relationship and exemplifies how contract law principles are to be applied when assessing reasonableness. The article argues that reconciliation of the goals of private law and human rights within the framework of just social practice makes it possible to argue that contract law principles can function as a tool for social inclusion.

The Concept of Reasonable Accommodation in the Context of Anti-Discrimination Policy and its Effect on the Protection of the Rights of Persons with Disability

This paper analyses and compares the concept of reasonable accommodation under the UN Convention on the Rights of Persons with Disabilities and the EU Employment Equality Directive including related case-law. It first addresses how equality and anti-discrimination policies in regard to persons with disabilities are dealt with in the wider context of international human rights law and under the relevant UN treaties. After identifying the European approach in addressing disability equality and non-discrimination, the paper considers to what extend the concept of disability and the scope of discrimination under the UN-Convention and the EU legal framework are coherent. Defined as a form of discrimination under the Convention but not in the Directive, the paper evaluates in which aspect the concept of reasonable accommodation under the Directive is compatible with the Convention and it also identifies the areas where compatibility appears to be lacking. The paper also points out the consequences at the European level of an incompletely implemented concept of reasonable accommodation in the meaning of the UN-Convention and proposes approaches to assure that EU-law is in line with the Convention.

The Unorthodox Relationship between the EU Charter of Fundamental Rights, the UN Convention on the Rights of Persons with Disabilities and Secondary Rights in the Court of Justice Case Law on Disability Discrimination

Court of Justice – Discrimination on the basis of disability – Article 21 and 26 of the Charter of Fundamental Rights – UN Convention on the Rights of Persons with Disabilities – Employment Equality Directive – Relationship between different sources of law protecting the right of persons with disabilities – Charter as interpretative aid – Charter as a parameter of validity – Scope of application of the Charter – Constitutionalisation of the UN Convention

Headscarf Cases Before the CJEU: Achbita and Bougnaoui

This article analyzes the first two judgments of the Court of Justice of the European Union (CJEU) concerning the wearing of headscarf at work, Achbita and Bougnaoui . In the mentioned joint cases the CJEU ruled that dismissing the worker by a private sector employer for wearing a headscarf constituted a lawful indirect discrimination. The article will first examine whether the concerned action in Achbita constitutes direct or indirect discrimination under the EU Employment Equality Directive 2000/78/EC. Furthermore, it will assess whether the private enterprise can pursue the policy of neutrality which is a duty to be fulfilled solely by the state. A very loose justification test of the CJEU, which failed to properly examine the legitimacy of the pursued aim, so-called neutrality, and the necessity of the restrictive measure will also be analyzed. On the part of the analysis of direct and indirect discrimination, and justification standard, the article will find the CJEU’s approach as being ineffective and inconsistent from the perspective of protection of equality, pluralism, tolerance and human dignity. It will be proposed that the CJEU should have applied a more nuanced proportionality test for indirect discrimination by assessing the legitimacy of the employer’s aim more delicately and by giving adequate weight to the importance of worker’s fundamental freedom of religion.

The European disability rights revolution

Until recently, an EU citizen's legal standing to challenge disability discrimination was non-existent or sharply curtailed in most jurisdictions. The situation changed drastically with the adoption of Directive 2000/78, also known as the Employment Equality Directive. Most academic commentary has been highly critical of the judgments of the Court of Justice of the European Union (ECJ), taking it to task for failing to embrace the “social model of disability”. In this article, I seek to demonstrate the value of analysing ECJ case law from a perspective other than the dominant paradigm, and to show how a different methodological approach can provide new insights into our understanding of the trajectory of the ECJ's jurisprudence. Instead of using the social model of disability to benchmark how the ECJ's case law has developed, I compare Directive 2000/78 and ECJ judgments to those of the Americans with the Disabilities Act and decisions of US courts.

Equality & Non-discrimination between the European Court of Justice and the European Court of Human Rights. Challenges and Perspectives in the Religious Discourse

Whereas gender, race and ethnicity have been placed at the very center of the rediscovery of European Union anti-discrimination law in the last decades, religion seems to stand in the backyard of the European Union Agenda. Efforts to tackle discrimination based on religious belief have not yet invested all areas of European Union anti-discrimination law, whose preference has been progressively devoted to other factors, even by leaving religion aside from the material scope of the Race Directive 43/2000/CE. The Employment Equality Directive, in fact, only prohibits discrimination on grounds of religion and belief in the fields of employment and occupation, vocational training, membership of employer and employee organizations, though refraining from following the Race Directive approach as to the width of protection. Freedom of religion within the European Union is then enshrined under Article 10, Freedom of thought, conscience and religion, of the European Union Charter of Fundamental Rights together with the general guarantee of non-discrimination under Article 21 and that of cultural religious and linguistic diversity set forth under Article 22. On the Council of Europe side, the European Convention – through Article 9, 14 and, to some extent, 1, Protocol no. 12 – and the European Court of Human Rights (ECtHR) have instead played a prominent role in addressing issues pertaining to freedom of religion, although generally disregarding the discriminatory implications of the scrutinized cases. Reference is made to the ECtHR consistent case-law on: proselytism (see Kokkinakis v. Greece); religious communities and their legal recognition (see Hasan and Chaush v. Bulgaria, Metropolitan Church of Bessarabia and Others v. Moldova); religious holydays (Francesco Sessa v. Italy, ); religious symbols in the public sphere (see Leyla Sahin v. Turkey, S.a.s. v. France; Eweida and others v. the United Kingdom; Hamidovic v. Bosnia Herzegovina); disposal of public services in the interest of religious communities (Izzetin Dogan v. Turkey). The European Union Charter of Fundamental Rights, together with the above mentioned Articles of the European Convention of Human Rights, set therefore the framework where to situate the lines of intervention towards discrimination on account on religion in european multicultural and multi-religious society. Moving ahead and beyond the existing legal background on religious anti-discrimination law, the presentation intends to discuss and compare the European Union Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) approaches towards discrimination claims on religious ground, by highlighting weaknesses and challenges faced by the principle of equality and non-discrimination on account of religious belief at the european level. As to the method, the proposed analysis, through selected case studies, will address and disclose achievements and perspectives in the fight against discrimination based on religious belief by looking at the following issues: the notion of religion with specific reference to its overlapping relationship with that of ethnicity; the notions and implications of direct and indirect discrimination; the collective or “group” resonance of discrimination on account of religious belief. The parallel and combined investigation of the EU Court of Justice (see Achbita v. G4S and Bougnaoui v. Micropole) and the ECtHR case-law will thus offer an insight into the unsolved questions behind the understanding and the legal awareness towards discrimination based on religion. The presentation will eventually bring about: the urge to challenge western countries approach to anti-discrimination strategies by acknowledging the inadequate realization of existing measures and suggesting diverse mechanisms which might embrace a focus on minorities’ rights as an additional tool to overcome discrimination; the adequacy of approaching anti-discrimination claims by interlacing religion and ethnicity; the challenges encountered by anti-discrimination law and Courts’ dependence on the so-called comparator methodology.

When are churches allowed to discriminate? How churches’ role in public service delivery affects employment equality regulations

Triggered by the Employment Equality Directive 2000/78/EC, member states have reformed their equal treatment laws, including exemptions for religious organisations which allow them to lay off employees who allegedly act contrary the organisations’ ‘ethos’. However, whereas in some countries, churches have managed to defend these exemptions; elsewhere, this possibility has become more restricted. This paper discusses the role of religious organisations in public policy to explain divergent outcomes in three different countries. Referring to assumptions of actor-centred institutionalism, it argues that churches have been most influential in Germany due to their significant status in welfare delivery which has also strengthened their role as political actors. In contrast, in the UK and, particularly, The Netherlands churches have lost their important roles in welfare and recently also in education. Therefore, British churches were only able to prevent restrictions at the very last moment, whereas their Dutch counterparts finally had to accept them.

You can always get what you want: why religious organizations opposed the employment equality directive

The Employment Equality Directive expands protections for, among others, gays and lesbians from discriminatory employment practices. This directive has been implemented poorly in Ireland, the UK, and Germany, because religious organizations believed their core ideological and material interests were threatened by extending these protections, even though degrees of policy fit vary among all three countries. Furthermore, the European Commission’s enforcement measures have not been effective in securing compliance. The European Commission has permitted noncompliance to continue in Ireland and the UK. Only change in the partisan make-up of the government led to compliance. This article speaks to ongoing debates about the causes of noncompliance with European Union law and how religious groups, not often considered in the scholarly literature, are now trying to limit the effects of European integration.

Human Rights Conditionality in Bosnia and Herzegovina: From Limited Progress to Limited Impact

This paper analyses the EU conditionality in the area of human rights with a focus on non-discrimination – along with its characteristics, particularities, difficulties – and the impact of this anti-discrimination legislation and policy in Bosnia and Herzegovina. There is plenty research which found inconsistencies in the EU’s human rights conditionality towards enlargement countries many of which relate to the Western Balkans countries. This papers finds evidence that although the transposition of the Council 2000/43/EC (Racial Equality Directive) and Council 2000/78/EC (Employment Equality Directive) antidiscrimination directives in Bosnia and Herzegovina could be considered as one of the biggest success of EU conditionality policy the EU has yet to develop a credible human rights conditionality policy.

Defining Disability in the European Union Nondiscrimination Legislation: Judicial Activism and Legislative Restraints

To date European Union anti-discrimination legislation, particularly the Employment Equality Directive (Directive 2000/78/EC), does not provide any clear definition of disability as a ground of discrimination. In the last few years, the Court of Justice of the European Union (CJEU) has attempted to fill this gap and discussed the concept of disability in several decisions, in the attempt to provide a definition of the ground of disability. The ratification by the European Union of the UN Convention on Rights of Persons with Disabilities (UNCRPD), has led to a clear overruling in the case law: the Court shifted from the medical model to the social model of disability. The UNCRPD now represents a milestone for the CJEU, which recognized that a duty arises to define disability in line with the social model, under the principle of consistent interpretation. Against this background, this article discusses CJEU case law, and compares and contrasts the judicial activism of the Court with the cautious approach adopted by the European Commission in the proposal for a new non-discrimination directive.

EU Equality Law and Precarious Work

The late 1990s/early 2000s were a period of dynamism within EU Law that saw the adoption of the Racial Equality and Employment Equality Directives, as well as the enhancement of existing Directives on gender equality. In the same period, EU Labour Law witnessed the emergence of a new body of legislation governing non-standard forms of work, notably the 1997 Part-Time Work Directive and the 1999 Fixed-Term Work Directive. These were later joined, with some delay, by the 2008 Agency Work Directive. From the outset, it was clear that there were connections between these branches of EU Law: notably, there was already considerable case-law tackling the conditions of part-time work via indirect sex discrimination. Yet the two bodies of law were generally treated as conceptually distinct. This paper explores developments since 2000 to consider how EU Equality Directives interact with the legislation on non-standard forms of work. It examines whether the combination of both enhances legal protection in a harmonious and complementary fashion, or whether their internal differences lead to divergence in the manner in which each is interpreted and applied. To this end, the paper will concentrate on two examples. First, it will look at EU gender equality law. This already provided protection for (some) part-time workers, so it is relevant to scrutinise the impact of adding an alternative legal remedy in the form of the Part-Time Work Directive. Secondly, it considers the provisions on age discrimination within the Employment Equality Directive. A variety of cases have exposed how both younger and older workers can experience precarity in the labour market. For example, national law might afford employers more flexibility in the use of fixed-term contracts for those who work beyond the normal retirement age. This exposes the interrelationship of age discrimination provisions and the standards found in the Fixed-Term Work Directive. In conclusion, the paper aims to clarify the connections between these branches of EU Labour Law and to reflect critically on the way in which they are combined within the case-law of the CJEU. Given the salient debate around the perceived spread of precarious work in the wake of the economic crisis, the regulatory role played by EU Equality Law in this area warrants further scrutiny.

‘Spectacularly exposed and vulnerable’ – how Irish equality legislation subverted the personal and professional security of lesbian, gay and bisexual teachers

International studies have consistently highlighted the challenges experienced by lesbian, gay and bisexual (LGB) teachers from around the world as they negotiate their personal and professional identities within the context of an often hostile work environment, In Ireland, the education system remains heavily influenced by denominational mores, particularly those of the Roman Catholic Church. Unsurprisingly, with the declaration by the Roman Catholic Church that homosexuality was ‘intrinsically disordered’ ( Catechism of the Roman Catholic Church, Libreria Edittrice Vaticana, 2003), LGB teachers’ professional identity is often (in)formed by fear as well as perceived, or actual, harassment, bullying and overt discrimination. This study represents the first in-depth examination of the apparent contradiction between EU law (Employment Equality Directive 2000/78/EC – European Union, 2000) and the derogation afforded organizations with denominational ethos in Irish equality legislation which explicitly permitted discrimination in order to protect that ethos from being ‘undermined’ (Section 37(1), Employment Equality Acts, 1998–2011). Drawing on semi-structured, in-depth interviews with 23, LGB Irish primary school teachers, the research reveals the tensions which exist between the competing (and legitimate) rights of faith organizations to protect their values against those of LGB workers ‘ to working conditions which respect his or her health, safety and dignity’ (Article 31, EU Charter of Fundamental Rights, 2000).

Tracing the Boundaries between Disability and Sickness in the European Union: Squaring the Circle?

In recent years the European Union (EU) has sought to develop a far-reaching policy regarding persons with disabilities. However, to date, EU non-discrimination legislation does not provide any clear legal definition of what constitutes a disability. The Court of Justice of the European Union (CJEU) has attempted to fill this gap and, in several decisions, has elaborated on the concept of disability and its meaning under EU law. The CJEU, with reference to the application of the Employment Equality Directive, has explained the notion of disability mainly by comparing and contrasting it to the concept of sickness. Against this background, this article critically discusses recent case law and attempts to highlight that, even though the Court has firmly embraced the social model of disability envisaged by the UN Convention on the Rights of Persons with Disabilities, the boundaries between the concepts of sickness and disability remain blurred.

Tracing the Scope of Religious Exemptions under National and EU Law: Section 37(1) of the Irish Employment Equality Acts 1998–2011 and Ireland’s Obligations Under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC

This submission traces the scope of the religious exemptions for religious organisation both under the Irish Employment Equality Acts 1998–2011 at national level and under the EU Framework Directive on Employment and Occupation, Directive 2000/78/EC of November 2000, at EU level. It will be demonstrated that the Irish religious exemptions are broader in scope than those at EU level and therefore constitute a severe limitation on the equality rights of Irish citizens falling within protected grounds of non-discrimination other than religion or belief under the EU Employment Equality Directive. Special regard is had to the limitation of the rights of Irish citizens falling within the protected ground of non-discrimination on the basis of sexual orientation. It is considered whether, by allowing overly broad exemptions to subsist beyond the exigencies of a strict proportionality test, the Irish State is in effect giving efficacy to the typified intolerance between religions organisations and the LGBT community and in so doing, contributing to the perpetuation of these intolerances in Irish society rather than their erosion.

Saying All the Right Things and Still Getting it Wrong

This article explores and reviews the approach of the Court of Justice of the EU to defining disability under the Employment Equality Directive and concentrates, in particular, on the two most recent cases which were decided in 2014: Z and Kaltoft and the relevance of the UN Convention on the Rights of Persons with Disabilities (CRPD), to which the EU is a party. The article argues that the Court's approach to defining disability, as applied in practice, is not compatible with either the wording or spirit of the CRPD, and there is a real danger that the CJEU's mistaken approach will also trickle down to national courts. This is in spite of the fact that the Court pays lip service to the social contextual model of disability as outlined in the CRPD in its judgments.

From Navas to Kaltoft

This article will examine the definition of disability developed by the European Court of Justice (CJEU) for the purposes of the Employment Equality Directive and whether it is sufficient for the purpose of bringing people living with human immunodeficiency virus/AIDS (PLHA) within its scope. The article will argue that in order to adequately protect PLHA within the European Union (EU) from discrimination, the CJEU needs to ensure that a coherent EU-wide definition of disability, based fully upon the social model of disability, is adopted. This is necessary in order to ensure adequate protection not only for PLHA but for all individuals with disabilities from discrimination throughout the EU. In addition to this central argument, this article will argue that the lack of a coherent definition of disability grounded in the social model fragments protection for PLHA across the EU leading to a number of possible unintended consequences.

Sickness Absence and the Court of Justice: Examining the Role of Fundamental Rights in EU Employment Law

Being absent from work due to sickness is a critical issue for individuals and their employers, but it has traditionally fallen outside the scope of EU employment legislation. This article argues that this is changing; it examines case-law under the Working Time and Employment Equality Directives. The article considers the justifications that the Court of Justice has advanced to explain this expansion in EU employment law. It finds that the Court has, at times, invoked fundamental social rights as a basis for interpreting employment legislation in a manner favourable to workers. Yet the way in which the Court deploys rights-based reasoning can be difficult to anticipate, not least the countervailing weight attached to the interests of employers. The case studies indicate that fundamental rights discourse offers a possible foundation for more extensive readings of employment legislation, but it is not a simple ‘trump card’ for advocates of stronger worker protection

Estimating ethnic discrimination in the labour market using experimental data

Using a field experiment for the period 2008–2009, we examine the impact of ethnicity on women’s labour market outcomes four years after the national adoption of the European Racial and Employment Equality Directives. The estimations lead to the observation that ethnic women face a lower chance of occupational access than comparable Greek women, while, ethnic women’s wage offers are also discriminatory. The estimations suggest that there is segregation and crowding which refers to the fact that ethnic and Greek women face different chances of occupational access based on jobs’ status. Whilst, ethnic women’s easier access to low-status jobs entails lower wages for them. Interestingly, however, ethnic women gain by providing information about themselves to employers. On average, distastes against ethnic women are discussed and appear to explain the biases found here. The segregation pattern of ethnic women in low-status jobs and employers’ statistical motivations are also found to influence their labour performance.

Damages in German Labor Law – Amending the AGG

The European legislature has enacted European anti-discrimination laws (Race Equality Directive - 2000/43/EC, Employment Equality Directive - 2000/78/EC, Directives on equal treatment for men and women - 2002/73/EC) with the task of all member states of converting them into national laws. The German legislature has decided to enact in the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz - abbreviated AGG) by means of civil law with damage-compensation and compensation for non-economic-loss. The focus of this work at hand is to assess whether the existing form of the AGG is efficient from the perspective of law and economics. Firstly, we will assess the legality of damage-compensation and compensation for non-economic-loss as well as the role of the legislator and legal application. Secondly, we will analyse the perspective of Law and economics in examining civil law sanctions such as efficient alternatives for amending the AGG.