Reasonable accommodation beyond disability and the concept of vulnerability in Europe
Abstract
The article addresses the provision of reasonable accommodation within the context of the European Union, in particular within EU labour law. Specifically, the provision of reasonable accommodation is enshrined within the framework provided by non-discrimination law. Furthermore, the article introduces the concept of vulnerability which represents a new and pioneering category especially in legal studies. The research question wonders whether it would be feasible to expand the provision on reasonable accommodation beyond the ground of disability considering vulnerability as an encompassing category to be used in order to evaluate whether a reasonable accommodation can be required or not. To this aim, it has to be noted that disability is the only ground based on which a reasonable accommodation can be provided under the EU law.
Keywords
non-discrimination; labour law; reasonable accommodation; vulnerability; inclusion
References
Benedeti, Lahuerta S.: Wearing the veil at work: Achbita and Bougnaoui – Can a duty to reasonable accommodation be derived from the EU concept of indirect discrimination? In: EU Law Analysis, 15 March 2016, eulawanalysis.blogspot.com.es.
Bribiosa, E. and I. Rorive: Reasonable Accommodation Beyond Disability in Europe? European Commission 2013.
Brown, K., K. Ecclestone and N. Emmel: The Many Faces of Vulnerability. “Social Policy & Society” 2017, vol. 16, no. 3, 497–510.
Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
De Schutter, O.: Reasonable Accommodations and Positive Obligations in the ECHR. In: A. Lawson and C. Gooding (eds): Disability Rights in Europe. From Theory to Practice. Hart 2005.
del Carmen Barranco Avilés, M.: La disabilità; intellettiva e la disabilità; psicosociale come situazioni di vulnerabilità. “Rivista di filosofia del diritto” 2018, no. 2, 301–320.
European Commission. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Towards Common Principles of Flexicurity: More and better jobs through flexibility and security, COM/2007/0359 final.
European Commission. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. Towards Common Principles of Flexicurity: More and better jobs through flexibility and security, COM/2007/0359 final.
European Union. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.
Henrard, K.: Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality. “Erasmus Law Review” 2012, vol. 5, no. 1.
Lord, J.E. and R. Brown: The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities. In: M. Rioux, L.A. Basser and M. Jones (eds): Critical Perspectives on Human Rights and Disability Law (p. 568), 275.
Mackenzie, C. et al. (eds): Vulnerability: New Essays in Ethics and Feminist Philosophy. Oxford University Press 2013.
Rioux, M.H. and C.A. Riddle: Values in Disability Policy and Law: Equality. In: M. Rioux, L.A. Basser and M. Jones (eds): Critical Perspectives on Human Rights and Disability Law. Leiden: Martinus Nijhoff Publishers 2011.
Turner, B.S.: Vulnerability and Human Rights. Penn State University Press 2006.
UN General Assembly, Convention on the Rights of Persons with Disabilities: resolution adopted by the General Assembly, 24 January 2007, A/RES/61/106.
US Equal Employment Opportunity Act of 1792 modifying the Civil Rights Act of 1964.
Vickers, L.: Religion and Belief Discrimination in Employment – EU Law.
Waddington, L.: Reasonable Accommodation, Time to Extend the Duty to Accommodate Beyond Disability? “Nederlands Tijdschrift voor de Mensenrechten NTM|NJCM-Bulletin” 2011, vol. 36, no. 2.
Waddington, L. and A. Hendriks: The Expanding Concept of Employment Discrimination in Europe – From Direct and Indirect Discrimination to Reasonable Accomodation Discrimination. “International Journal of Comparative Labour Law and Industrial Relations” 2002, vol. 18, issue 4, 403–428.
Case law
Court of Justice of the European Union, Carlos Enrique Ruiz Conejero v. Ferroser Servicios Auxiliares SA, Ministerio Fiscal, 18 January 2018, C‐270/16.
Court of Justice of the European Union, DW v Nobel Plastiques Ibérica SA, 11 September 2019, C-397/18.
Court of Justice of the European Union, HK Danmark, acting on behalf of Jette Ring v Dansk almennyttigt Boligselskab (C‑335/11) and HK Danmark, acting on behalf of Lone Skouboe Werge v Dansk Arbejdsgiverforening, acting on behalf of Pro Display A/S, 11 April 2013, Joined Cases C‐335/11 and C‐337/11.
Court of Justice of the European Union, Vivien Prais v Council of the European Communities, C-130/75.
European Court of Human Rights. Çam v. Turkey, Application no. 51500/08.
European Court of Human Rights. Glor v. Switzerland, Application no. 13444/04.
European Court of Human Rights. Thlimmenos v. Greece. Application no. 34369/97.
Ontario Human Rights Commission (O’Malley) v. Simpsons-Sears, [1985] 2 SCR 536.
Opinion of Advocate General Sharpston, on the Judgment of the Court of Justice of the European Union, Judgement of the Court (Third Chamber) of 18 January 2018 Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal, C-270/16.
Opinion of Advocate General Sharpston, Carlos Enrique Ruiz Conejero v. Ferroser Servicios Auxiliares SA, Ministerio Fiscal, delivered on 19 October 2017, C‐270/16.
Hasselt University Belgium
http://orcid.org/0000-0002-8097-6438
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