Meaning of disability and reasonable accommodation
Facts:
The case was initiated by a female employee who had a child through surrogacy (the birth-mother was a different woman) since she had a rare medical condition which meant she was unable to support a pregnancy. According to the Irish anti-discrimination law this kind of health condition is regarded as disability. After the birth of a child by a surrogate mother Mrs Z applied to her employer for paid adoption and maternity leave. The application was refused since Mrs Z was neither the biological mother (she did not deliver the child) nor she was not an adopting mother (she didn’t go through any adoption procedure). She turned to the Equality Tribunal claiming discrimination on the grounds of sex and disability.
Findings of the court:
The Court did not find discrimination either on the grounds of sex or disability. The Court stated that the gender equality Directive 2006/43/EC does not prohibit discrimination of female employees in enjoying their rights in relation to adoption or maternity leave and who avail of a surrogacy arrangement. The Court underlined that the concept of disability must be interpreted in light of the UN Convention on the Rights of Persons with Disabilities and the Court’s case–law in this field. However, the Court did not find discrimination on the grounds of disability in the situation of a female employee who due to her medical condition is unable to bear a child and avails of a surrogacy arrangement. The medical condition of Ms Z was not such that it precluded her full and effective participation in professional life on an equal basis with other workers.
Implications:
The Court underlined that the provisions of the UN Convention on the Rights of Persons with Disabilities are not unconditional and not sufficiently precise to have a direct effect in EU law. The validity of Directive 2000/78 cannot be assessed in light of the UN Convention. Moreover, the Court’s judgment also sets rules for determining the threshold at which less favourable treatment based on a health condition will constitute discrimination.