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The Ada: a Model for Europe with "Sharper Teeth?"

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The Ada: a Model for Europe with CORE Metadata, citation and similar papers at core.ac.uk Provided by NSU Works THE ADA: A MODEL FOR EUROPE WITH "SHARPER TEETH?" Carol DaughertyRasnic* I wish ... for the passionatesense of the potential,for the eye which... sees the possible.... Soren Kierkegaard,19th century Danishphilosopher I. INTRODUCTION ....................................... 105 II. SOME EUROPEAN LAW BASICS ........................... 106 III. EUROPEAN CONVENTION OF HUMAN RIGHTS ............... 109 IV. THE FRAMEWORK DIRECTIVE AND RIGHTS FOR THE DISABLED W ORKER ................................... 109 A. Pre-FrameworkDirective Domestic Legislation ......... 111 B. Panel of Expert's Areas of Focus .................... 114 V. HOSTILE ENVIRONMENT, HARASSMENT, AND DISPARATE TREATMENT/IMPACT ENVIRONMENT ...................... 115 VI. ASPECTS OF THE ADA THE PANEL OF EXPERTS APPEARS DESIROUS OF AVOIDING ................................ 117 VII. CONCLUSION ........................................ 118 I. INTRODUCTION Kierkegaard's wish might be regarded as a prescient view of a new European legal emphasis on persons with disabilities as human subjects rather than as objects, persons who have the potential and the possibilities to contri- bute to marketplace productivity. For lawyers representing clients engaging in business in Europe, particularly clients actually establishing European branches, keeping current on work setting discrimination laws is critical. Two major European Commission (EC) Directives announced in 2000 fundamentally expanded anti-discrimination protections for workers. The first, the so-called Race Directive,' is the broader of the two in one respect, since it applies across the spectrum. That is, its provisions address not * Professor of Law, Virginia Commonwealth University; Fulbright Professor of Law, National University of Ireland Galway, 2003-2004. 1. Council Directive 2000/43, art. 3(1), 2000 O.J. (L 180). 106 JLSA Journalof International& ComparativeLaw [Vol. 11:105 only employment discrimination, but also discrimination in other areas, such as housing, transportation, and education. The second, the Framework Directive,2 although limited to employment law, protects workers from discrimination based upon religion or belief, disability, age, and/or sexual orientation.3 The year 2003 was the European Year of the Disabled, probably a direct response to this second mandate from the EC. Unarguably, revisions to workplace discrimination laws for persons with disabilities are now on the agenda of domestic legislation in all European Union countries. This article focuses on developments in the area of discrimination on the ground of disability. It is not a discourse on the Americans with Disabilities Act; reference is made to that statute only in a comparative sense. The EC has looked to the American statute as a beginning point, and its relevance when analyzing the responses to the directive cannot be over-estimated. II. SOME EUROPEAN LAW BASICS There is frequent confusion among Americans with regard to the terms "European Communities" or EC (originally "European Community") and "European Union" (EU). Some legal professionals wrongly believe the EC to be defunct and the EU to be the only correct term. "European Union" is the goal pronounced in the Single Europe Act of 1987, but the European Com- munity is the collective body with law-making powers. Thus, one might speak of "EU law," designating law applicable to those countries in the European Union, or "EC law," the more official term that refers to the actual source of law. The EU, then, is a geographical entity, whereas, "EC" is the reference to the body with law-making powers. European law takes either of two forms: the regulation; or the directive. A regulation is a primary source of law and is directly effective in all EU member states, without any need for domestic legislation. The directive, on the other hand, is a mandate from the EC that states an intended result. The means by which each member state attains this result via the enactment of domestic law is left to the individual member state. The directive has no counterpart in American law. As a practical matter, the directive has been the more frequently used form, particularly with regard to law relating to the establishment of a single market.4 Currently, the adoption of a European Constitution is a topic of consider- able controversy, although passage of the draft was actually anticipated for early 2. Council Directive 2000/78, art. 3, 2000 O.J. (L 303) [hereinafter Framework Directive]. 3. Prior European Commission Directives have prohibited discrimination based on sex. See, e.g., Council Directive 76/207, 1976 O.J. (L 39). 4. RALPH G. FOLSOM, EUROPEAN UNION LAW IN A NUTSHELL 35 (3rd ed. 1999). 2004] Rasnic 2004. The purpose of the 1999 Cologne Council was to draft a Charter and Constitution, and the dilemma of how a country once admitted to the EU might later withdraw has finally been addressed in Article 59, Title IX, of the draft. This Charter is incorporated into the proposed constitution as Part II of that document. Two lingering points of dissension remain: First, the proposed revamping of voting weights;5 and second, the insistence of countries such as Ireland and Italy that the document contain a reference to the Christian foundation of the European Union. A revised version was published in June 2004, shortly before the six-month term of Irish Taoiseach (Prime Minister) Bertie Ahem as President of the EU expired. Thus, a European constitution is still in the "wait-and-see" stages. The fifteen member states prior to May 1, 2004, were Belgium, Luxem- bourg, the Netherlands, Germany, France, and Italy (the charter members at the adoption of the Treaty of Paris in 1952); Denmark, Ireland, and the United Kingdom (added in 1973); Greece (1981); Portugal and Spain (1986); and Austria, Finland, and Sweden (1995). As of May 1,2004, ten new countries are now members of the EU: Estonia, Latvia, and Lithuania (the Baltic states); the Czech Republic and Slovakia (the former Czechoslovakia); Slovenia (part of former Yugoslavia); Hungary, Poland, Malta, and Cyprus. Romania has been approved for member status, and Bulgaria and Turkey are hopefuls. The sheer size of the EU should be viewed as an entity with which any transnational business must be prepared to reckon. The original European Community (the European Coal and Steel Com- munity) became the European Communities at the adoption of the 1957 Treaty of Rome, which created the European Economic Community and the European Atomic Energy Community (EURATOM). 6 Subsequent treaties include the Single European Act of 1987, the Maastricht Treaty (Treaty on European Union) of 1992, the Treaty of Amsterdam of 1997, and the Treaty of Nice of 2000. Interestingly, the conceptual purpose of the EC was to create a geogra- phical entity comprised of signatory member countries for economic consis- tency and harmonization. Indeed, the goal of the Treaty of Rome was to extend the Europa-wide communal regulation of the coal and steel industries effectu- ated by the earlier Treaty of Paris to European economy as a whole. This 5. Currently, votes from those member states with the largest population, such as Germany, France, and Italy, are more heavily weighted than are those from the less populated states, and this lessening of power has not been acceptable to the larger members. See Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 (providing the objective and goal of establishing a common European market). 6. The latter was actually added via a separate treaty executed simultaneously with the Treaty of Rome. 108 ILSA Journalof International& Comparative Law [Vol. 11:105 economic basis has undergone a metamorphosis, or at the least, an augmenta- tion. In recent years (particularly since the Amsterdam Treaty), an additional aim of the EC has been human rights. The European Convention of Human Rights has been incorporated into EC law; all fifteen of the pre-2004 enlarge- ment member states have enacted the terms of that Convention into their domestic laws. Professor Gerard Quinn of the law faculty at National Univer- sity of Ireland Galway has called this human rights direction a "pragmatic goal of interlinking the national economics into a common market so that armed conflict in [post-World War II] Europe was unthinkable and energies were instead diverted into peaceful economic competition."7 He has termed this a recognition of the premise that "naked power is dangerous and requiring taming" and an effort to "convert the [European] Union into more than just an engine for economic growth and integration. ' This human rights orientation has much significance for employment law, especially employment discrimina- tion law. Indeed, in 1969 the European Court of Justice held that European Communities law incorporated through its "general principles" doctrine those fundamental rights modeled on constitutions and common law of member states.9 Five years later, in Nold Kohlen- und Baustoffsgrosshandung v. Com- mission,' the Court extended this view to include in the same general principles international treaties and the European Convention of Human Rights." The principal organs of the EC are the European Commission (the true law-making body located in Brussels), 2 the Council of Ministers (Brussels), the Parliament (Strasbourg), and the European Court of Justice (Luxembourg). The function of the first three is legislative. It is somewhat of an anomaly to the American jurist that, although only in the United Kingdom and Ireland among member nations is the common law system used, applying the doctrine of precedent (other members are civil law countries), the European Court of Justice functions under common law principles. 7. Professor Gerard Quinn, Remarks at the National Forum on Europe, National University of Ireland Galway (Jan. 21, 2004). 8. Id. Arguably, this linkage of market economics and human values has also been used on many occasions by the U.S. Congress under its powers under the U.S. Constitution. U.S. CONST. art. 1, § 8. cl. 3. One prime example is the Americans with Disabilities Act of 1990, 42 U.S.C.
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