A. EU legal framework and CJEU jurisprudence
EU legislation on non-discrimination is primarily based on Directive 2000/78/EC, which
establishes a general framework for equal treatment in employment and occupation.
The Directive prohibits direct and indirect discrimination and imposes on employers
the obligation to provide reasonable accommodation for persons with disabilities,
unless it constitutes a “disproportionate burden”. The definition of disability, initially
left to States, has been the subject of important jurisprudential evolution by the Court
of Justice of the European Union (CJEU).
A fundamental case is HK Danmark (C-335/11 and C-337/11)5. The CJEU was called
to decide whether conditions like chronic fatigue syndrome and ADHD could constitute
a “disability” under the Directive. The Court ruled that yes, such conditions fall within
the notion of disability if “long-term” and if they substantially limit, in interaction with
various barriers, the person’s ability to participate in professional life. Furthermore,
the Court stated that dismissing a worker whose absences are caused by their
disability can constitute direct discrimination, unless justified by factors unrelated to
the disability. This case significantly expanded protection to “invisible” and fluctuating
neurodivergent conditions6.
