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European mirror An examination of disability law in the EU

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Compare and contrast disability law in the EU. To United Nations treaties. To the ADA in the United States. Examine non-law ... Yenisey, K. D. (2005) ... – PowerPoint PPT presentation

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Title: European mirror An examination of disability law in the EU


1
European mirrorAn examination of disability law
in the EU
  • James Malone // LSJ 434 // 02.28.2007

2
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

3
(very short) European Union primer
  • Facts
  • Policy structure
  • Institutions

4
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

5
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

6
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

7
Soft EU disability law
  • European Convention on Human Rights
  • European Convention on the Prevention of Torture
  • European Social Charter

8
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

9
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)

10
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

11
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

12
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

13
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

14
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

15
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

16
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)

17
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

18
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

19
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

20
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

21
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

22
Hard EU disability law
  • Framework Directive on Employment Discrimination
  • Directive on Bus and Coach Design
  • Public Procurement Directive

23
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

24
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

25
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

26
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

27
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

28
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)

29
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

30
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

31
(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

32
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

33
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

34
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

35
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

36
Questions?
37
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/e
    sa/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?sm
    artapi!celexapi!prod!
  • CELEXnumdoclgENnumdoc32000L0078modelguichett
  • 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.
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