‘The Family and Diabetes’ in the EU: Taking the Bitter with the Sweet
This year’s World Diabetes Day focuses on ‘the family and diabetes’. Family members play a vital role in diabetes care, especially parents caring for children too young to understand the disease. Parents may need to monitor their child’s sugar levels throughout the night or will need to be continuously available when the child is at school. In a recent survey about half of the parents questioned indicated difficulties in combining this care with their jobs. The concept of reasonable accommodations, e.g. through (partial) telework, could make a difference for such ‘parent-carers’. While the current EU-approach to disability-based discrimination would not allow this, there are good reasons to consider that the UN Convention on the Rights of Persons with Disabilities (hereafter: the Convention) requires it.
Diabetes: a Disability?
Firstly, we need to consider whether diabetes is covered by the protected ground disability in the Framework Equality Directive. The original medical approach to disability taken in Chacon Navas would likely have considered diabetes as a long-term illness not qualifying for protection. However, the Directive is now interpreted in a manner consistent with the Convention, which is an integral part of the EU legal order (see Ring). Disability should therefore be explained according to the social model embraced therein. As Advocate-General Wahl indicated, diabetes can constitute a disability if it constitutes ‘a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers’. Thus, diabetes patients themselves are protected by the Directive and can require reasonable accommodations from their employer. But what about parent-carers?
Discrimination by Association: a Missed Opportunity
Interesting for parent-carers is the concept of discrimination by association. In Coleman, the Court of Justice ruled that the prohibition of direct discrimination and harassment is not limited to the person with the disability. Where employees are primary carers and can show such discrimination based on the disability of the child, they are protected by the Directive.
However, the Court indicated that ‘as is apparent from its very wording’ the Directive’s provisions on reasonable accommodations for employment are restricted to the person with the disability. Hence, the Directive does not prohibit refusing reasonable accommodations to parent-carers. One could argue that family life does not come within the Directive’s material scope. Yet ensuring equal access to employment without disability-based discrimination (by association) is within the Directive’s material scope. To overlook the interplay between work and family life misses an important part of this equal access and thus impairs the Directive’s effectiveness. Truly ensuring equal access requires recognizing the vital role reasonable accommodations can play in families where someone has a disability, regardless of which person in the family they are granted to.
Moreover, the conformity of this restriction with the Convention’s social model of disability is questionable. The Convention’s definition of reasonable accommodations does not exclude that the rights of the person with disability may be realised by reasonable accommodation granted to a family member. For example, telework for parents can strengthen or even ensure the child’s right to education. This seems all the more required given the importance of the family in the Convention, e.g. consideration (x) of the Preamble and articles 7, 23 and 28.
Getting There Through Indirect Discrimination?
Parent-carers might get the same outcome through the prohibition of indirect discrimination. As convincingly argued by Advocate-General Kokott and implicitly accepted by the Court in CHEZ Razpredelenie Bulgaria, the Directive prohibits indirect discrimination by association. Thus, where an apparently neutral norm (e.g. requiring all employees to work from their offices) could put parent-carers at a particular disadvantage this could constitute prohibited indirect discrimination.
However, there is a more than symbolic difference between these two paths. While the prohibition of indirect discrimination does not question the ‘neutral’ norm as such, reasonable accommodations actively call for changes to the norm so that it can accommodate difference. Therefore, in a truly inclusive design of society, the prohibition of indirect discrimination can only be a first step.