The CJEU strengthens protection against discrimination for employees with children who have a disability

In case C‑38/24, the Court of Justice of the European Union (CJEU) clarified that protection against indirect discrimination on the grounds of disability may also extend to employees who are not themselves disabled but who care for a child with a disability. Through the CJEU’s position, the scope of the Employment Equality Directive (2000/78/EC) is broadened, marking an important step in strengthening the rights of persons with disabilities.

The case concerns a woman in Italy who worked as a station attendant. She lives with her minor son, who has a severe disability. The son must follow a care program at a fixed time in the afternoon, and the woman therefore asked her employer for a position with fixed morning hours so that she could provide her child with the necessary care. The employer did not agree to her request, granting only certain temporary adjustments to her working conditions. The woman brought an action before an Italian court, claiming that the employer’s decision not to grant her fixed working hours constituted discrimination.

The Italian court decided to request a preliminary ruling from the CJEU and asked, among other things, whether EU law should be interpreted to mean that a employee who is a family caregiver of a minor child with a disability falls within the prohibition of indirect discrimination and whether, as a consequence, the employer is obliged to make reasonable accommodation in relation to that employee.

The CJEU’s reasoning

The CJEU reasoned that the prohibition of discrimination covers all forms of discrimination, and referred to an earlier case (C‑303/06) in which the CJEU had already established that direct discrimination “by association” on grounds of disability is prohibited. According to the CJEU, the Employment Equality Directive should not be interpreted restrictively. Limiting protection to persons who themselves have a disability could deprive the directive of much of its practical effect. In light of the above, the CJEU concluded that the prohibition of indirect discrimination on grounds of disability also applies to an employee who does not himself or herself have a disability but who is subject to such discrimination because of the assistance that that person provides to his or her child who has a disability, which enables that child to receive the primary care required by virtue of his or her condition.

The judgment goes further than merely establishing a prohibition of discrimination. The CJEU explains that employers may be required to make reasonable accommodation in relation to an employee who has the primary caregiving responsibility for a minor child with a disability. Both a reduction in working time and a change in job assignment could, according to the CJEU, constitute reasonable accommodation. However, the obligation applies only insofar as the accommodation do not impose an unreasonable burden for the employer. In that assessment, factors such as the costs of the accommodation, the size and resources of the undertaking, and the availability of public support are taken into account.

Setterwalls’ comments: The judgment means that employers within the EU will, to a greater extent, need to take anti-discrimination legislation into account and, where reasonable, accommodate needs for work adjustments for employees who care for minor children with disabilities. For employers, it is more important than ever to be responsive to their employees’ needs and family situations. Although it remains to be seen what impact the judgment will have in Sweden, it is our view that, going forward, employers may need to contribute to resolving the everyday problems for employees who provide care for a minor with a disability.

Setterwalls will monitor developments in Swedish case law, and if you already have questions related to the judgment or other issues concerning discrimination, do not hesitate to reach out to Setterwalls’ employment law experts!