Andreas Inghammar

Prorektor, Docent

From a given - into a task. Aspects of labour market integration and employment strategies in relation to reasonable accommodation regulations and the individualized perspective of anti-discrimination legislation

Författare

Andreas Inghammar

Summary, in English

Aspects of labour market integration and employment strategies in relation to reasonable accommodation regulations and the individualised perspective of anti-discrimination legislation.

In recent years an unquestionable shift towards disability anti-discrimination legislation can be observed in EC-law (see dir. 2000/78/EC) as well as in national legislations in many parts of the world. Disability anti-discrimination legislation in Great Britain in 1995, Sweden in 1999 and most recently Germany in 2001 - and more adequately in August 2006 – are examples of this development. The anti-discrimination paradigm of equal treatment, first developed in relation to Gender and Race, has, however, when it comes to disability discrimination, in general been subject to one particular amendment; the obligation to take reasonable accommodation in order to provide access to disabled employees and applicants (see art. 5 dir. 2000/78/EC). The impact of disability discrimination law will, most likely, in many situations be dependent on exactly this – that many employees with disabilities require some special treatment. Under the anti-discrimination legislation such arrangements, when reasonable, will be dealt with in relation to the contractual situation in an employment or a possible future contract (when dealing with applicants). Legislation provides rights for the disabled to call for these amendments and an corresponding obligation for the employer to cover expenses and organisational burdens emerging from these rights. Anti-discrimination law monitors the employment contract and pinpoints that the question of accommodating disabled persons within the workforce of an enterprise should be solved using labour legal measures without any direct correlation to public intervention by labour market authorities.

This article examines the reasonable accommodation legislation within the British Disability Discrimination Act, the Swedish Law (1999:132) on Disability Discrimination and the recent German General Equal Treatment Act (Allgeimes Gleichbehandlungsgesetz). The author argues, in large based on the mentioned legislation and the current differences between these three national legal documents along with the EC-directive 2000/78/EG, that the anti-discrimination perspective will provide a shift of focus from the disabled as a group towards disabled as individuals, but also that this shift might change the perception of disability and disabled peoples labour market integration, “from a given into a task”, a task for the individual as an actor, very much in line with an ongoing individualisation of labour market standards in Europe. Issues discussed concerns what role the requirement to take reasonable accommodations plays in this development and indeed, if this constitutes a movement from Social Law to Employment Law and an increased focus on the individual employment contract and the individual’s personal capacity.

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