Discrimination at work: the rights of persons with disabilities to protection against indirect discrimination extend to parents of children with disabilities (CJEU)

Judgment of the Court of Justice in Case C-38/24: Discrimination at work: The rights of persons with disabilities to protection against indirect discrimination extend to parents of children with disabilities. Employment and working conditions should be adapted to enable those parents to care for their child without the risk of being subject to indirect discrimination.

A station operator repeatedly asked her employer to appoint her to a position with fixed working hours. Her request was based on the need to care for her son, who has extensive and comprehensive needs arising from disability. Her employer provided her with some accommodations on a provisional basis. However, the employer refused to make those accommodations permanent. The station operator contested that refusal before the Italian courts and the case reached the Italian Supreme Court of Cassation.

That court referred questions to the Court of Justice because it had doubts as to the interpretation of EU law with regard to protection against indirect discrimination of an employee who cares for his or her minor child who has severe disabilities, while not having a disability him- or herself.

The Court replies by confirming that the prohibition of indirect discrimination on grounds of disability under the Framework Directive on equal treatment in employment and occupation [1] also extends to an employee who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability.

As is apparent from the Judgment in Coleman, [2] in which the Court previously held that that directive seeks to prohibit direct discrimination 'by association' on grounds of disability, that directive seeks to combat all forms of discrimination on grounds of disability. In addition, the provisions of that directive must be read in the light of the principle of non-discrimination, respect of the rights of children and the right to integration of persons with disabilities provided for in the Charter of Fundamental Rights of the European Union, together with the provisions of the United Nations Convention on the Rights of Persons with Disabilities. [3] 

From these texts it can be seen that, in order to protect the rights of persons with disabilities, in particular in the case of children, the general principle of non-discrimination includes indirect discrimination ‘by association’ on grounds of disability, so that equal treatment in employment and occupation is also guaranteed to their parents, and the latter are not subject to unfavourable treatment in their work in connection with their children's situation.

According to the Court, in order to guarantee equal treatment of employees, the employer is obliged to provide reasonable accommodation that is appropriate to enable them to provide the necessary assistance to their children with disabilities, to the extent that this may be done without imposing a disproportionate burden on the employer. Therefore, the national court will have to verify that, in this case, the employee's request did not represent such a burden. (curia.europa.eu/photo freepik.com)

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1 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

2 Judgment of 17 July 2008, Coleman, C-303/06 (also see press release No 53/08).

3United Nations Convention on the Rights of Persons with Disabilities, concluded in New York on 13 December 2006 and approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November