Facts

C.M., a teacher with a disability, requested a transfer to the province of Catanzaro as part of the Italian public school staff mobility programme for the 2018/2019 school year. The scheme prioritised transfers for individuals with certain (degrees of) disabilities among the available positions. Requests for transfers within the same province were (mostly, § 20-21 & 28) granted before those for transfers between provinces.

CM’s request was denied as all vacant positions in Catanzaro had been filled through internal transfers. The Italian court concerned asked the Court two preliminary questions: (1) whether the priority to internal transfers violated the obligation to provide reasonable accommodation (Article 5 Directive 2000/78); and (2) whether this arrangement constituted (unjustified) indirect discrimination based on disability (Article 2 Directive 2000/78)?

Reasonable Accommodation

First, the Court considered the definition of reasonable accommodation, interpreted in light of Article 2 of the UN Convention on the Rights of Persons with Disabilities (CRPD) (§ 50-51). Reasonable accommodation refers to modifications and adjustments ‘where needed in a particular case to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms’ (§ 51). In the workplace, this may include reassignment to another position (as established in HR Rail and Ca Na Negreta; § 52, 58).

The Court noted that ‘reasonable accommodation’ should be ‘understood broadly, as covering all measures that enable the needs of a person with a disability to be met in a particular case’ (§ 61). However, the Court reasoned that as the scheme provides priority automatically for those with certain (levels of) disability, it cannot constitute a reasonable accommodation (§ 61-64). A reasonable accommodation has to be based on ‘a concrete understanding of the needs specific to that worker’s situation and the difficulties and obstacles which that worker encounters in accessing and performing his or her work’ (§ 56).

Indirect Discrimination (and Positive Action)

Next, the Court considered whether the scheme could be indirectly discriminatory, i.e., liable to result in a ‘particular disadvantage to the detriment of workers with disabilities’ (§ 68-70). The scheme instead appears beneficial only to persons with disabilities (§ 73-74). However, as it distinguishes between different disabilities and the Commission had argued it to be positive action (Article 7 Directive 2000/78), the Court was also invited to consider the case from this angle (§ 78-84). It succinctly rejected this invitation, holding that it lacked information concerning the scheme’s objective (§ 82-83).

Commentary

Although the Court’s conclusion on this specific measure is understandable, it leaves broader questions unresolved. The UN Committee similarly emphasises that reasonable accommodations should be individualised and context-sensitive (General Comment No. 6, §25-26). However, focusing on a measure’s automated character may overlook measures that do meet the substantive criteria for reasonable accommodations. For example, students with specific disabilities often automatically receive exam accommodations, such as extended exam time when they qualify for accommodations (see Lammens, Spinoy, and Willems). While these should be accompanied by a further individualized assessment (and should not replace this assessment), they still constitute measures to avoid obstacles indicated by a person with a specific disability and therefore ‘enable the needs of a person with a disability to be met’ in a particular context.

Automated measures could also constitute positive action. While reasonable accommodations address individuals’ needs and are mandatory under EU law, positive action targets the underrepresentation of protected groups and remains voluntary (see Waddington and Bell). Following significant rulings regarding positive action for women in employment (e.g., Kalanke, Marschall, Badeck, Abrahamsson, and Lommers), subsequent silence has created considerable uncertainty, particularly regarding other protected groups (which the Court has only briefly addressed: see Milkova on disability; Cresco Investigation on religion and belief).

Zirvatta demonstrates that the Court continues to regard positive action as a justification for discrimination (§ 81-83). Yet positive measures may be necessary, not simply justifiable, to tackle deep-rooted and systemic discrimination (see Fredman). Unfortunately, the Court missed this opportunity to provide clearer guidance.