National decision in the case of Kaltoft

The District Court in Kolding passed judgment on 31 March 2013 in a case regarding Billund Municipality’s dismissal of an employee with severe obesity.

The case:

On 22 November 2010, a baby minder employed with the Municipality, Karsten Kaltoft, was dismissed by Billund Municipality. The dismissal was reasoned by a “declining number of children”, but Karsten Kaltoft believed that the dismissal was reasoned by his obesity and that he was thereby subject to discriminatory treatment pursuant to The Danish Act on Prohibition against Discrimination on the Labour Market (the discrimination act).

The baby minder had been employed with the Municipality for approximately 15 years, and according to his own statement, he had never during this period weighed less than 160 kg. He was 172 cm tall. The baby minder had thus been “fat” – such as the term “obesity” is defined by the WHO – during the entire period of employment.

The District Court in Kolding submitted the question whether obesity was comprised by the handicap term in the directive – and thereby in the discrimination act – to the European Court of Justice (ECJ).

By judgment of 18 December 2014, the ECJ decided that the EU law must be construed to the effect that it does not stipulate a general principle on the prohibition against discrimination due to obesity in itself as regards employment and job positions. In other words, directive no. 2000/78, and thereby the discrimination act, does not provide any specific job protection for obese persons as the European Court of Justice dismissed that obesity in itself is protected pari passu with gender, religion, race, etc.

However, in the reply the ECJ was open to the fact severe obesity in certain circumstances may constitute a handicap, and thereby fall within the handicap term if the limitations of the handicapped person entail i) long, ii) physical, mental or psychological injury which in the interaction with other barriers iv) may prevent v) the person in question from fully and efficiently participating in work activities on equal terms with other employees.

It was therefore up to the District Court in Kolding to assess whether

  1. Karsten Kaltoft‘s obesity formed part of Billund Municipality’s grounds for the dismissal, and
  2. in the affirmative, whether Billund Municipality thereby had exercised unlawful discrimination.

The judgment:

The District Court in Kolding handled several questions in the case.

Initially, the court established that there was no proof substantiating that KarstenKaltoft at the time of the dismissal was suffering from any disease entailing a handicap pursuant to the discrimination act. The court stated that Karsten Kaltoftdespite his obesity had carried out his full time job continually for more than 14 years without any discussion between him and Billund Municipality or initiation of adaptation arrangements pursuant to S 2a of the discrimination act.

The inconvenience described by Karsten Kaltoft, including the restrictions of movement relating to the performance of his job activities, were not considered by the court to be of a nature preventing him from performing his job as a baby minder.

Further, the court refused to deal with Karsten Kaltoft‘s claim for compensation for unfair dismissal pursuant to the collective agreement for baby minders 14/2010 between the national association of municipalities (KL) and the trade union (FOA) as the trade union had not initially pursued the claim within the system pertaining to labour legislation pursuant to S 11(2) of the Danish Labour Act. In other words, this question could not be handled by the ordinary courts, which was why it was rejected.

The court took the view that the case regarded a discretionary dismissal entirely due to lack of work. The grounds for the dismissal, i.e. declining number of children and thereby lack of work, resulted in financial and operational irregularities in the day-care, which was considered by the court to be in accordance with the real situation as to staffing requirements in the day-care. In relation to the actual dismissal, the court stated that it had taken place in pursuance of the provisions of the Danish Public Administration Act, which was why Karsten Kaltoft could not be awarded compensation for this.

Based on the above, The District Court in Kolding gave judgment completely in favour of Billund Municipality.

Bird & Bird’s comments:

The District Court in Kolding establishes that it had not been substantiated that Karsten Kaltoft was dismissed due to his obesity as there were reasons to draw the conclusion that the dismissal was caused by financial and operational circumstances within the Municipality. At the same time, the District Court in Kolding emphasises that the employee is the one to substantiate that he was handicapped at the time of the dismissal and that the dismissal was caused by that.

The court follows the ECJ’s judgment and establishes at the same time that obesity in itself does not constitute a handicap pursuant to the discrimination act. Furthermore, Karsten Kaltoft was not so bothered by his obesity that it prevented him from performing his job on equal terms with other employees, which is why – in the present case – the obesity did not constitute a handicap.

The union now considers whether to appeal the judgment to the High Court.

Source: http://www.lexology.com/library/detail.aspx?g=31d04955-1ba9-4b8d-98a4-78a9899592f7

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Disability discrimination because of denial of “reasonable accommodations”: a very positive connection between the ECHR and the UNCRPD in Çam v. Turkey

ECtHR decided and strengthened the concept of reasonable accommodation in connection to education

Strasbourg Observers

This guest post was written by Joseph Damamme, PhD student at the Centre of European Law of the Université libre de Bruxelles (Belgium) and member of the Equality Law Clinic.

The Strasbourg Court recently delivered a significant judgment on the inclusion of students with disabilities in the field of (non-compulsory) education. Çam v. Turkey (ruling only in French for the time being) concerns a person who was refused enrolment at the Music Academy because of her blindness.

In this judgment, the ECtHR examines the issue of discrimination (art. 14 ECHR) under several dimensions. Indeed, in addition to the prohibition of discrimination, attention is focused on the importance of positive steps to ensure that students with disabilities are provided education on a non-discriminatory basis. In this vein, the ECtHR states that the denial of reasonable accommodations is a form of discrimination under article 14 ECHR. As far as we…

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Deaf Woman Captures Remarkable Encounter At Starbucks Drive-Thru

“It is a big deal to [the] deaf community that Starbucks has one now. We all want to have that at every drive thru in the world.”

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For members of the deaf community, ordering food or drinks at a drive-thru can be afrustrating, or even impossible, experience. But as one deaf woman recently discovered, Starbucks is trying to make this feature accessible for customers with disabilities — with the help of a little technology.

On Tuesday, 28-year-old Rebecca King of St. Augustine, Florida, uploaded a video to Facebook which reveals what happened during her visit to a local Starbucks drive-thru.

The video shows King driving up to the ordering kiosk. A woman’s voice emits from the intercom.

“Hi, welcome to Starbucks,” the woman says. “What can we get started for you today?”

King does not respond and waits in her seat. A few moments later, a Starbucks barista appears on a monitor.

King begins to communicate with the woman using sign language, and the barista signs right back.

“Starbucks! This is what I’m talking about!” King wrote in her Facebook post, which has been watched more than 4.9 million times to date. “Share it away! We can change the world!”

According to Action News Jax, the barista in the video is a woman named Katie Wyble, a 22-year-old college student who has had a “passion for sign language since I first saw a teacher use it when I was in preschool.”

Wyble, who began studying American Sign Language in high school, says she’s thrilled that King’s video has been shared so widely on social media.

“I think more people need to know about what we’re doing because it moves customer service to a whole new level,” Wyble told Action News Jax. “I hope it helps make more people aware of what they can to do serve others in their communities.”

King told First Coast News that she’d originally encountered the two-way video feature at Starbucks on Monday, when Wyble unexpectedly popped up on the screen and began signing with her. King said she was so surprised and thrilled by the experience, she returned the very next day so she could document it on camera.

“It is a big deal to [the] deaf community that Starbucks has one now,” King told the news outlet of the video feature. “We all want to have that at every drive thru in the world.”

St. Augustine is home to a large deaf community as The Florida School for the Deaf and Blind is located in the city.

It’s unclear how many Starbucks drive-thru kiosks currently have this two-way video feature installed. The company has yet to respond to The Huffington Post’s requests for comment.

In 2010, Culver’s, a fast food chain that operates mainly in the Midwest, made headlines when it reportedly became the first fast food company to install OrderAssist, an accessibility system for deaf customers, at some of its drive-thrus.

More recently, Subway fitted touch-screen ordering kiosks at a handful of outlets. Though the company said last year that the technology would make drive-thru ordering “faster and more accurate,” such a system would also be helpful to deaf customers.

Source: http://www.huffingtonpost.com/entry/deaf-starbucks-drive-thru_563affabe4b0411d306fb268

UN to probe the UK’s deadly disability cuts – UN INVESTIGATORS TO DETERMINE IF THE GOVERNMENT COMMITTED “GRAVE VIOLATIONS” AFTER DISABLED PEOPLE ORDERED BACK TO WORK

Protesters take part in a ‘Disabled People Against Cuts’ anti-austerity demonstration in London in July [Matt Dunham/AP]

London, United Kingdom – The UK has become the first country in the world to be placed under investigation by the United Nations for violating the human rights of people with disabilities amid fears that thousands may have died as a consequence of controversial welfare reforms and austerity-driven cuts to benefits and care budgets.

UN inspectors are expected to arrive in the country within days to begin collecting evidence to determine whether the British government has committed “systematic and grave violations” of the Convention on the Rights of Persons with Disabilities (UNCRPD).

The convention, which came into force in 2008, codifies the rights of disabled people to freedom, respect, equality and dignity.

 UK benefit cuts hit disabled people hardest

“It is absolutely shameful that we are the first country in the world to be investigated,” said Linda Burnip, founder of the campaign group, Disabled People Against Cuts (DPAC), which submitted evidence to the UN over several years to trigger the inquiry.

“The UK was at one stage doing quite well in meeting disabled people’s human rights and supporting people living independently, but all of that has been stripped away.”

Disability rights activists joined large crowds of anti-austerity demonstrators on the streets of Manchester last week as British Prime Minister David Cameron’s governing Conservative Party staged its annual conference in the city against a backdrop of angry popular protests.

Some pushed skeletons in wheelchairs holding signs reading: “Declared fit for work” – a reference to the government’s widely criticised “work capability assessment” scheme, under which hundreds of thousands of people who previously received disability welfare have seen their payments stopped and been told to find jobs.

“We are highlighting the fact that these policies have effectively driven massive numbers of disabled people to their deaths. They have either pushed them to suicide or made them so ill when they’ve been found fit for work, they’ve actually died within days or weeks,” Burnip told Al Jazeera.

“People are living in fear on a daily basis of either being sanctioned and left with no money, or that their care will suddenly be cut, and they’ll be trapped in their homes, and they won’t be able to go out and do anything any more.”


RELATED: Out in the cold: The UK’s social housing emergency


Figures released by the Department for Work and Pensions (DWP) in August showed that 2,380 people died between 2011 and 2014 shortly after having their benefits stopped. A further 7,200 people also died after having their benefits reduced and being put in groups to help them prepare for a return to work.

“We urgently need an enquiry into the government’s back-to-work regime. These disturbing findings cannot be swept under the carpet. The fact that more than 80 people are dying each month shortly after being declared ‘fit for work’ should concern us all,” said Frances O’Grady, the general secretary of the Trades Union Congress.

Critics argue the assessment system, under which recipients of benefits are regularly re-assessed, puts disabled people under “unendurable stress” and discriminates against those with mental health issues and fluctuating conditions.

A coroner’s report into the 2013 suicide of a 60-year-old man with a long history of severe depression – brought to public attention last month by the Disability News Service – ruled that being found fit for work had triggered his decision to end his life and advised that changes to the system were necessary to prevent further deaths.

Other reported cases include people declared fit for work after being diagnosed with terminal illnesses or degenerative conditions or while receiving treatment for cancer or other serious health problems.

Others are reported to have starved to death or frozen in their homes after having their benefits stopped.

Paula Peters, a disability rights campaigner diagnosed with rapid cycling bipolar disorder, said she knew of many others who had taken their own lives as a consequence of being found fit for work or losing access to benefits.

She said the stress of the process had affected both her physical and mental health.

“It is causing harm, it is causing destitution, and it is causing unendurable stress. It is horrible, absolutely horrible,” Peters told Al Jazeera.

“It’s had a devastating impact on me. I’ve lost so many friends to this. They have taken their own lives in awful circumstances. You see every day on social media somebody else has gone. Somebody else has died because of the stress and the fear and the degradation of the process.”


RELATED: 250,000 rise up against austerity plans in the UK


Iain Duncan Smith, the minister responsible for welfare reform since 2010, argues that the government’s changes to the system are incentivising work, tackling a deep-rooted culture of benefit dependency, and supporting hundreds of thousands of disabled people in finding jobs.

Addressing the Conservative Party conference last Tuesday, Duncan Smith denounced the “bile and hatred” of protesters gathered outside and said the party’s right-wing welfare philosophy was “rooted in human nature, not utopianism nor empty pity”.

But his department, which in August was found to have faked case studies of people it claimed to have helped back into work, has faced sustained criticism over the impact of cuts and reforms on the most weak and vulnerable, and alleged mismanagement of the process.

A study by the Centre for Welfare Reform in 2013 found that disabled people had been affected nine times more on average by austerity cuts, while severely disabled people were 19 times worse off.

One important scheme, the Independent Living Fund, which funded full-time care for thousands of severely disabled people, was shut down earlier this year with the government passing responsibility for care provision onto local councils – themselves facing severe budget cuts.

 UK austerity cuts blamed for weather havoc

In one case, a woman whose round-the-clock support had previously been paid for by the fund was, instead, offered adult nappies by her local council to “increase her independence” in lieu of full-time care.


RELATED: Readying the fight against UK Conservative rule


A Department of Work and Pensions spokesperson told Al Jazeera the government continued to spend $76bn a year in support of disabled people and said a $121bn “welfare safety net” was still available to millions of people in need.

“We strongly reject the allegations made by DPAC. The UK has a proud record of furthering the rights of disabled people, with the principles of the UN Convention at the heart of its approach. People are getting more tailored support to return to work instead of being written off on long-term sickness benefits as happened too often in the past.”

But with further rounds of welfare cuts scheduled in 2017, Paula Peters said she believes disabled people fighting for their lives have been left with no choice other than direct action.

In June, DPAC activists, including some in wheelchairs, clashed with police in parliament as they attempted to force their way into the House of Commons. Several were also arrested in July during a protest against austerity in central London.

“I’ve faced police on horseback in riot gear, but when you’ve got nothing left to lose and they’ve taken everything from you, then the fear goes away,” said Peters.

“Our attitude is that we are entitled to raise our voices in anger. It helps you cope by helping others and giving others the information they desperately need. And it is also to give other people hope that disabled people are fighting back and empowering them to get involved and raise their voices.”

Follow Simon Hooper on Twitter: @simonbhooper

Source: http://www.aljazeera.com/indepth/features/2015/10/probe-uk-deadly-disability-cuts-151012100921075.html

For the first time, a paraplegic has walked without a robotic suit

A paraplegic has walked without robotics using his own brain waves, thanks to research done at Southern California’s UC Irvine. Scientists used a computer to “link” 28-year-old Adam Fritz’s brain to his legs over a Bluetooth connection, bypassing the severed region of his spinal cord. An EEG then picked up signals from his brain, which were relayed by a “brain-control interface” (BCI) computer to electrodes on his knee, triggering walking movements. Though Fritz was supported and only walked haltingly for 12 feet, the research is being heralded as a milestone — so far, paralyzed patients have only be able to walk using suits like that from Ekso Bionics.

It wasn’t just a matter of strapping on the EEG cap and taking a stroll. Prior to the attempt,Fritz underwent extensive physical rehab to strengthen his muscles and learned to control a virtual avatar using the BCI device. He also made similar movements in the lab while suspended slightly above the floor. During a conversation with Sky News, Fritz dubbed the interface a “mind walker,” and said, “it’s complete concentration. You have to think about every single step when you’re doing it.”

Despite the success, the team said there’s still a lot of work to be done before patients can gain any mobility. The next step is to reduce the EEG components enough that they can be implanted in the brain, which could give patients more precise control the and the ability to “sense” pressure. Meanwhile, Fritz described the experience as “incredible,” saying, “when you’re first injured, you’re sitting in hospital hoping you’ll walk again, but when it actually happened it was a dream come true.”

http://www.engadget.com/2015/09/24/paraplegic-walks-with-mind-control/

New ADA technical assistance brochure published: Protecting the Rights of Persons Living with HIV/AIDS

The Department of Justice has published a new tri-fold brochure, Protecting the Rights of Persons Living with HIV/AIDS | PDF, to explain the rights of persons with HIV/AIDS under the Americans with Disabilities Act (ADA), and the requirements of the ADA for employers, businesses, non-profit agencies, and State and local governments with respect to persons with HIV/AIDS.  This two-sided brochure (print using “Tablet” setting) summarizes the more detailed Questions and Answers: The Americans with Disabilities Act and Persons with HIV/AIDS |PDF.  Duplication and wide distribution of both is encouraged.

Law School Admission Council to Implement Sweeping Changes to Testing Accommodation Procedures For Test-Takers with Disabilities

On August 7, 2015, the U.S. District Court for the Northern District of California upheld significant changes to LSAC’s testing accommodation policies and practices. The court’s decision upheld almost all the changes to LSAC’s testing accommodation procedures recommended in a report by a panel of experts created pursuant to a 2014 consent decree that resolved allegations under the Americans with Disabilities Act in Dept. of Fair Employment & Housing (DFEH) v. Law School Admission Council, Inc. (LSAC), Case No. 12-1830–EMC (N. D. Cal). The District Court invalidated a limited portion of the recommendations (generally regarding timing for evaluating testing accommodation requests and how recent documentation in support of a request for testing accommodations based on mental or cognitive impairment must be) but upheld the bulk of the recommendations as written, including those that: categorize the type of documentation that will be sufficient for various types of testing accommodations requests, establish criteria for evaluating requests, require an automatic review by outside professionals before any request may be denied, and create an appeals process for those candidates whose testing accommodation requests are ultimately denied. LSAC will implement the upheld recommendations starting immediately for testing accommodation requests related to the December 2015 LSAT administration and later administrations.