Legislating to Employ People with Disabilities: The European and American Way
| Author | Lisa Waddington |
| Published date | 01 December 1994 |
| Date | 01 December 1994 |
| DOI | http://doi.org/10.1177/1023263X9400100403 |
| Subject Matter | Article |
Lisa Waddington *
Legislating to Employ People with Disabilities: The Euro-
pean and American Way
In 1988 the Council of the European Communities noted that there were some 30
million people with disabilities in the twelve Member States. IRecent American
legislation refers to 43 million disabled Americans. 2Although disability is frequently
associated with old age, a significant minority of both these groups of disabled people
is below retirement age and a part of the labour market. In spiteof the obvious political
and economic differences between the Member States of the European Union (and other
European countries) and the United States, disabled workers in both regions face similar
problems when attempting to become active members of the labour force or to remain
employed once a disability manifests itself. Disabled people have consistently had to
bear a disproportionate amount of the unemployment burden, and are heavily over-
represented in the ranks of the (long-term) unemployed. In both continents employers
have traditionally been reluctant to take on (large numbers ot) unemployed workers, or
to place them in well paid, permanent positions whilst workers who become disabled
during their working life may well be dismissed. Those disabled people who are in
work frequently find themselves in low-paid, low status jobs, which under-utilize their
skills.
The purpose of this article is to examine the two separate legislative frameworks which
have been developed on the European and North American continents to promote the
integration
of
disabled people in the open labour market, and to oblige employers to
take on disabled people. There is a distinct philosophical and legal difference between
the approach developed in the United States, and that relied on in most Member States
*Lecturer in European Community Law, University of Limburg (NL). I am grateful to Bruno de Witte,
Aart Hendriks, Cees Flinterman and Brian Doyle for their comments on an earlier version of this
article.
1. Council Decision of 18th April 1988establishing a secondCommunity actionprogramme for disabled
people (Helios), [1988)
OJ.
Ll04/38.
2. Americans with Disabilities Act. Public Law 101-336. July 26th 1990. 104 Stat. 327. Title V, Sec.
2(a)(l) Findings and purposes.
MJ 1 (1994)
367
ILegislating to Employ People with Disabilities
of the European Union (and indeed in most other European countries). In the United
States the core of the problem is seen as employer discrimination, and the issue is
viewed from a civil rights perspective. The philosophical approach is similar to that
which has justified anti-discrimination legislation in favour of women and ethnic
minorities, although the actual legislative reaction has not been the same in recognition
of the fact that at times disabled people have different and particular needs. For this
reason disabled people were not simply added to the list of groups protected under the
US Civil Rights Act of 1964, but instead a separate civil rights bill, the Americans with
Disabilities Act, was adopted in 1990. In Europe anti-discrimination legislation, such
as that which applies to women and ethnic minorities in some countries, 3has not been
extended to disabled people. Instead the legislative response is to be found in quota
systems, whereby employers are obliged to ensure that a certain percentage of their
labour force is made up of disabled people. This form of positive,action frequently pre-
dates both American and European civil rights legislation, with many countries adopting
such systems in the post- First (and Second) World War period.
The first part
of
this article shall examine the development and operation of quota
systems in Europe, whilst the second part shall provide a similar analysis of US anti-
discrimination legislation. In the concluding section the differences between the two
approaches shall be addressed, and the likelihood of anti-discrimination legislation being
adopted in Europe shall be considered.
§ 1. The Origins and Development of the Quota System in Europe
Proposals to reserve jobs for the war disabled through quota systems were first dis-
cussed at the Inter-Allied Conference in Brussels in December 1920. The Conference
recommended that national governmentsadopt legislation which wouldoblige public and
private employers to employ disabled ex-soldiers. This proposal was also supported by
a Committee
of
experts which met under the auspices of the International Labour
Organization in 1923, with the task of finding ways and means to employ disabled
veterans. The Committee favoured the use of legal obligations, and stated that the
experience gained in employing disabled veterans could also be of use in employing
other disabled people. It did not however propose that the legislative measures under
discussion be extended to cover this group. The members of the Committee felt that all
employers having a designated number
of
employees should be covered by legislation,
although there should be exemptions for those employers who experienced certain
difficulties. Those employers who were exempted or who did not meet their percentage
target should be obliged to pay a fee or a fine.
These recommendations formed the basis of the legislation that was ultimately adopted
in many European states in the post First World War period and, in fact, the system
368 MJ 1 (1994)
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