Main Page Content
RIGHTS OF PEOPLE WITH DISABILITIES
The cornerstone of French disability legislation is a 1975 Law that makes the integration of all disabled people in the educational system, working and social life a national obligation. It falls to the state and local governments, all public and private bodies, and groups to ensure the maximum level of autonomy for each disabled individual. To further this goal, many laws and decrees were enacted covering topics including education, employment, training, transportation accessibility, building requirements, roads, access to sports and culture, and availability of social benefits. A 1987 Law on employment of disabled workers was a radical reform. It requires employers with a staff of 20 or more employees to hire a number of disabled persons equal to six percent of their workforce. In addition, the Law on discrimination contained in the Penal Code was amended to protect disabled persons against discrimination in employment and in obtaining goods and services. Organizations and committees representing persons with disabilities are consulted when laws and regulations on disability issues are prepared and participate in disability policy-making. The rights of disabled persons are enforced through the courts.
French disability legislation was gradually developed during the course of the 20th century. Up to that time, the French authorities were mainly concerned with the disabilities resulting from war injuries, and they did not take into account disabled civilians apart from a Law of 1898 on the Protection of Victims of Work Accidents. Many sporadic measures were passed from 1905 to 1975 ranging from assistance to the elderly and disabled persons to vocational rehabilitation. In addition, the creation of the social security system helped to protect all employees against the consequences of non-work related diseases and accidents by compensating them for loss of earnings.204
These measures were compiled and harmonized in Law 75-534 of June 30, 1975,205 which is considered the cornerstone of the French disability legislation. Article 1 states that the integration of disabled people in the educational system and in working and social life is a national obligation. It relates to disabled people of all ages and includes education, social security, access to buildings, and employment matters. It further provides that “families, the state, local authorities, public organizations, social security organizations, associations, public and private-sector groups, organizations and enterprises” must all contribute to achieve this goal.
Other fundamental laws include Law 87-517 of July 10, 1987,206 on the employment of disabled workers; Law 89-486 of July 10, 1989,207 concerning educational reforms which addresses the school integration of young disabled people; Law 90-602 of July 12, 1990,208 on the protection of individuals against discrimination on the grounds of their state of health or their disability as amended by Law 2001-1066 of November 16, 2001;209 and Law 91-663 of July 13, 1991,210 which includes several measures aimed at improving access of people with disabilities to housing, work places, and public buildings. A Conseil National consultatif des personnes handicapées composed of representatives of government authorities, labor and management organizations, disabled person associations, and social security organizations participates in policy making and gives advice regarding draft legislation on any issues concerning disabled people.
In addition, France has signed many international instruments211 that guarantee equal opportunities for people with disabilities and enable them to acquire as much autonomy as possible. In pursuance of all these commitments undertaken at the international level, the French policy towards people with disabilities is currently aimed at developing their autonomy and facilitating their social and professional integration.
A. Definition of a Disabled Worker
There is no general legislative definition of disability. People are classified as disabled according to differing criteria depending on the benefits or services they are claiming. The Labor Code provides that a disabled worker is a person “for whom the possibility of obtaining or retaining employment is effectively reduced due to a deficiency or diminution of physical or mental capacity.”212 To be recognized as a disabled worker, one has to apply to a Commission technique d’orientation et de reclassement professionel, COTOREP. Its general role is to assess the needs of the disabled persons for employment, training, and financial and social assistance.213 It has two branches. One approves the status of disabled workers, evaluates the degree of disability and assigns a person to a category A, B, or C (blind and severely visually impaired people, for example, are assigned to category C). The other branch is concerned with vocational integration and guides disabled people towards either training or open or sheltered employment.214
There is one commission in each département.215 It is comprised of physicians, psychologists, social workers, representatives from labor unions, disability organizations, and local and central government authorities. The commission must state the grounds upon which it bases its decisions regarding the classification of a disabled person.216
Appeals to the commissions’ decisions can be made to the Commission départementale des travailleurs handicapés, des mutilés de guerre et assimilés. This commission is presided by a judicial judge designated by the first president of the competent court of appeals and is comprised of the regional director of labor and employment, a labor physician, a representative of the employees, a representative of the employers, a representative of workers with disabilities, and a representative of the departmental service of the national office of veterans. Further appeals are made to the Conseil d’état (the highest administrative court).
B. The Employment Obligation
All employers in the public or private sector with a staff of at least 20 employees, whether full time or part-time, must employ a number of workers with disabilities, victims of work-related accidents and illnesses, war “invalids,” and others sharing the status of war invalids equal to six percent of their work force.217
The compulsory employment obligation covers the following main categories of workers:
- workers recognized as disabled by COTOREP
- persons with an occupational injury or disease that has led to permanent incapacity of at least 10 percent
- persons entitled to a disability pension under the general social security system, any other compulsory social insurance system or provisions governing public servants, where the disability has reduced, by at least two-thirds, the person’s capacity to work or to earn a living
- war veterans (and similar) entitled to a military invalidity pension
For the purpose of calculating fulfillment of the employment obligation, certain categories of disabled employees are counted as if they were one and a half, two, or two and a half individuals. This system is intended to privilege the employment of persons with severe disabilities, young people, older people, those pursuing training at the employing organization, and those engaged with leaving a sheltered workshop or vocational training center.218
Employers can chose to fulfill this requirement by direct employment of the beneficiaries under the law, by entering into services contracts with or subcontracting to certain enterprises which employ disabled persons, by instituting a program for the benefit of disabled persons, or by making a contribution to the fonds de développement pour l’insertion professionnelle des handicapés [Development Fund for the Professional Integration of People with Disabilities] in an amount fixed by a regulation.219 The fund is administered by a national private association. Its Board of Directors comprises representatives of trade unions, employers’ organizations, national organizations of people with disabilities, and others appointed by those bodies and by the State. It complements state assistance and finances actions encouraging vocational integration and job retention of disabled workers in the mainstream work environment.220
Each year employers subject to the foregoing provisions must file an annual declaration to the appropriate administrative authorities relating to the fulfillment of such provisions. The declaration must be filed no later than February 15 and is to cover the period from January 1 through December 31 of the preceding year.221 The Workers Representation Committee, or where applicable the personnel delegates, must be informed of the declaration.
The failure of an employer to fulfill the provisions relating to the employment of disabled persons is punishable by a fine in an amount equal to the contribution to the fonds de développement pour l’insertion professionnelle des handicapés increased by 25 percent.222
C. Rights of Disabled Employees in the Private Sector
With respect to the Labor Code, disabled employees have the same status as other company employees, except for wage adjustment and an extended period of advance notice prior to dismissal.223 Their salary may not be lower than the amount decided by the applicable collective agreement, although if overall productivity is diminished, the employer may be authorized by the competent authority to implement a wage reduction.224 In this case, the employee receives an additional wage financed by the fonds de développement pour l’insertion professionnelle des handicapés, in addition to the salary paid by the employer, guaranteeing resources for an amount between 100 and 130 percent of the minimum wage salary.
D. Disabled Employees in the Civil Service
As seen above, the six percent disabled workers employment obligation also applies to the public sector, the local and regional authorities, the hospital sector, and their public institutes. Access by disabled persons to civil service employment is subject to prior approval of the COTOREP “civil service” subcommittee. There are three means of access to the civil service for disabled persons:225
competitive examination. This is the way civil servants are usually hired in France. It is open to disabled persons regardless of age. They are entitled to accommodations or adjustments applied for at the time of registration including longer time, secretarial support, and specially adapted equipment.
reserved positions. A certain number of positions are reserved for people with disabilities, under the only condition of testing the candidate’s level of knowledge. This option is falling into disuse as the number of positions available is constantly diminishing, and the waiting period grows longer.
contract-based recruitment. Disabled workers may be hired on the basis of a one-year contract, renewable for a single term only, at the end of which they may become permanent if they are deemed professionally fit. They must have the same qualifications as candidates for the competitive examination relating to the position.
The careers of disabled civil servants progress in the same way as that of any other civil servant. However, they are given priority in regards to transfer requests subject to the requirements of the service. Each ministry department has at least one “disability representative” tasked with facilitating the vocational integration of disabled civil servants. In addition, an inter-ministry fund was set up in 1998 to enhance the integration of disabled persons into the civil service. The fund is used to contribute towards experimental equipment and the adapting of workstations.226
E. Sheltered Working Activities
Some disabled persons are unable to maintain a job in the open work environment despite accommodations or adjustments to their workstations. A sheltered work environment enables them to carry on a salaried activity while benefiting from conditions adapted to their ability. They are two types of sheltered work; disabled people are directed by COTOREP to one or the other.
The first type, comprising sheltered workshops and distribution centers for homework, is intended for people whose capacity is at least equal to one-third of the capacity of non-disabled workers. Employees are subject to the same legal, administrative, and contractual regulations as other employees. No more that 20 percent of the employees in sheltered workshops may be non-disabled.227 Shelter workshops may be established by local authorities, public institutions, and private establishments. They may receive public aid at department, regional, or local levels.228 In addition, special grants are allocated through the Regional Directorates of Labor and Employment.
The second type, the Centre d’aide par le travail (CAT), caters to people starting from the age of 20 with temporary or permanent disabilities whose working capacity is less than one-third of the capacity of the average worker, and whose potential aptitude for work is sufficient but whose condition does not permit a normal working life. Disabled workers in a CAT do not enjoy the status of salaried workers: they have no work contract and the rules regarding the representation of employees within a company do not apply. However, they are covered by the social security system. They also benefit from the income guarantee that may vary between 55 percent and 110 percent of the minimum wage.229
Each workshop or CAT has at least three different activities, so that workers have a chance to find a suitable job. Sheltered workshops and CAT are constantly expanding. Expansion is one of the policy objectives of the French authorities.230
F. Right to Vocational Rehabilitation
Any disabled worker has a right to vocational rehabilitation and training.231 It is provided through public or private centers supervised by the Ministry of Labor. They are financed by the national health insurance. Training may last from 10 to 30 months. Trainees receive financial support through the national employment agency (ANPE) and the fonds de développement pour l’insertion professionnelle des handicapés. ANPE assists persons who are looking for a job, training, or vocational advice. It also assists employers with the hiring of personnel. It manages a register of job seekers.
G. Protection Against Discrimination
Provisions regarding discrimination based on state of health or disability can be found in both the Penal Code and the Labor Code. Law 90-602 of July 12, 1990, concerning the protection of individuals against discrimination on grounds of their state of health or their disability amended the Penal Code,232 which already covered discrimination based on race or origin, sex, customs, marital status, ethnicity, and nationality. It was further amended by Law 2001-1066 of November 2001 and Law 2002-303 of March 2, 2002,233 that added to the list physical appearance, sexual orientation, age, and genetic characteristics.
Discriminatory behavior is punishable by two years imprisonment and a fine of €30,000 when it consists of:
- refusing to provide a good or service;
- hindering the normal exercise of any economic activity;
- refusing to employ a person, or sanctioning or dismissing a person;
- subjecting the supply of a good or service to a condition based on one of the grounds in article 225-1;
- subjecting an offer of employment, a request for a training course or training in a company to a condition based upon the grounds in article 225-1; and
- refusing to accept a person to one of the training courses listed in article L.412-8(2) of the Social Security Code.
Law 2001-1066 of November 16, 2001,234 also modified the provisions of the Labor Code on discrimination in the workplace. The relevant section of the Labor Code235 now reads: no person can be eliminated from a recruitment process, sanctioned or dismissed due to their age, sex, lifestyle, sexual orientation, age, family situation, non-membership, whether genuine or assumed, of an ethnic group, nation, race, political beliefs, trade union activities, religious beliefs, physical appearance, surname, state of health or disability.
In addition, the definition of discriminatory practice was broadened to cover an employee’s entire career. The ban on discrimination covers: recruitment, access to a placement or in-company training program, pay, training, redeployment within a company, posting, qualifications, job classification, promotion, transfer from one workplace to another, and renewal of contract.
In addition, the provision concerning the burden of proof was modified. It is no longer only the employee’s responsibility. The burden of proof now falls equally upon the employer.236 The right to bring a discriminatory action to court has been extended to trade unions provided that they have representative status either nationally or in the relevant workplace.237
The 1975 Law238 provides for compulsory education for disabled children. This principle was reaffirmed by Law 89-486 of July 10, 1989,239 relating to educational reform. A joint regulation by the Ministry of Employment and Solidarity, dated November 19, 1999, reasserts the right to schooling for disabled children, whatever their needs in terms of education, care, and rehabilitation may be. It also states that priority must be given to schooling in the mainstream environment.
Schools have developed various methods of integration: individual or collective, in mainstream or special classes, full- or part-time. The 1975 Law creates in each department a commission de l’éducation spéciale. This commission decides which facilities or services are best adapted to the child’s age, abilities, and the nature and extent of his/her disability. It also grants special needs education allowances. Decisions of the commission are appealable before the social security courts.
Initial vocational training is provided at the secondary school level and beyond. Apprenticeship is also provided for young disabled persons, and the admission conditions are slightly less stringent. Many academic assistance programs exist that are essentially financed by the state and supervised by the Ministry of Education. The French authorities are also working on improving orientation and guidance for disabled children and providing better training for state education personnel.
School transportation is organized under the authority of the département. Students with a disability rate equal to or above 50 percent will be provided with adapted individual transport to and from school throughout the academic year.240 The commission de l’éducation spéciale will assess the degree of disability. Parents who provide transportation may claim compensation from the département.
The 1975 Law provides that public transport must be progressively adapted to the needs of people with disabilities by way of regulation.241 In addition, Law 82-1153 of December 30, 1982,242 on urban transport reform states that special measures must be taken to accommodate the special needs of people with limited mobility. A report on the accessibility of public transport prepared in 2001 at the request of the Ministry of Transport shows that progress is slowly being made. For example, 200 train stations are fully accessible to people with disabilities, while 50 others, among the most important, have either equipment or services to address their needs. Trains with wheelchair spaces and adapted restrooms replace old trains. The Ministry of Transport and seven commercial airline companies recently signed “a code of good practices” relating to the accessibility of commercial airlines to people with disabilities. The adaptation of the public buses network is slowly taking place. Both buses and bus stops need to be modified. The town of Paris is planning to have its 59 bus routes accessible by the end of 2006. Some of the major obstacles in making public transportation accessible to disabled persons have been budgetary, technical, and administrative; that is, there is a lack of co-operation from the numerous authorities and organizations involved.243
There is also special transportation reserved for persons with severe disability available for medical treatment, education, employment, and recreational purpose. Unfortunately, the demand is very high, and waiting lists are long. According to the French National Institute of Statistics 5.5 million persons stated having an impairment or a disability in their daily lives, and 1.8 million stated that having a severe disability considerably restricts their autonomy.244
Public Accommodations and Services by Privates Entities
A. Access to Housings, Public Buildings, Public and Private Roads
Law 75-534 establishes the principles governing the accessibility and adaptability of public housing.245 In compliance with this Law, all new construction since 1983 must be adapted to the needs of a person requiring a wheelchair. Law 91-663 extends the principles of Law 75-534 and imposes various measures aimed at facilitating the access of disabled persons to housing, workplaces, and public buildings, in particular schools and universities. It extends the accessibility requirements to workplaces and offices with more than 20 employees. Building permits for public buildings cannot be delivered if such buildings are not accessible to people with disabilities.246 Repair or restoration of places receiving the public must also comply with all the accessibility requirements.247 The 1991 Law also authorizes associations set up to defend and assist disabled persons to take legal action in cases of failure to comply with the regulation concerning accessibility.
Decree 94-86 of January 26, 1994,248 on the accessibility of people with disabilities to housing and establishments receiving the public sets forth in great detail the technical accessibility requirements for elevators, restrooms, showers, parking, telephone, hotels, sporting facilities, etc. Decree 95-260 of March 8, 1995,249 creates a safety and accessibility advisory committee at the département level. It defines the role and function of the committee and provides for the creation, under the control of the préfet,250 of communal, inter-communal, or district accessibility committees in which associations of people with disabilities participate.
Decrees 99-756 and 99-757 of August 31, 1999,251 define the technical rules governing access by disabled persons to public or private road networks open to the public, particularly in terms of traffic routing, traffic signals, adaptation to pavement and parking spaces, both for private cars displaying a disabled person sticker and for low-floor buses.
A liaison committee for accessibility of transportation and buildings reports to the Minister of Transport. This committee participates in the development and implementation of the policy on accessibility, and also issues advice, recommendations, and proposals for new regulations, programs, and measures.
B. Access to Culture and Sports
Law 75-534 provides that “...access to sports and leisure activities by minors and adults with physical, sensory, or mental disability constitute a national obligation.”252 In addition, Law 2000-627 of July 6, 2000,253 on the organization and promotion of physical and sports activities, emphasizes the obligation to take into account the different types of disabilities in the organization of physical and sports education programs within educational and vocational training centers or special facilities. As a result of the law, sports specialists and teachers are required to receive an initial special training and continuing education to better facilitate the access of disabled persons to physical and sports activities.
As seen above, under employment, France has a general criminal law on discrimination, which was extended to include discrimination based on state of health and disabilities.
The use of information and communication technology has become an essential part of the economic, educational, and social life of individuals. As seen above, the policy of the French government is aimed at developing the autonomy of the disabled persons, and accessibility to new telecommunication services and products can only further this goal. In 1997, the French Government launched an action program for the information society. Through this program, the French authorities have been promoting the widest possible Internet access in schools, open public places, and availability is also being improved for disabled persons. The fonds de développement pour l’insertion professionnelle des handicapés (previously mentioned in the section on employment) grants financial aids to workers and students to acquire computers and the equipment necessary to adapt such computer to their specific disability. In 1999, the government vowed to make public sites accessible to all and in particular to people with disabilities.254
Enforcement of the rights of persons with disabilities is done through various courts (administrative, civil, criminal, labor, social security) depending upon the nature of the claim. As seen above, associations set up to defend and assist disabled persons and labor unions are authorized by law to take legal action on behalf of a disabled person in some cases. The principal alternative to the courts is the médiateur [mediator], the French “ombudsman” established by a Law of January 3, 1973.255 The mediator was created to restrain the excesses of the administration and to provide a simple, free, and readily accessible remedy. He investigates complaints that the administration has failed to live up to its mission in both the central government and local governments. In addition, the médiateur includes proposals for reform in his annual reports to the administration; the proposals focus on matters that have surfaced during his investigations. These proposals are taken seriously by the government and are often implemented.
French disability legislation developed gradually over the course of the 20th century, with efforts culminating in the 1975 Law. Under that legislation, the integration of all people with disabilities into the educational, employment, and social life of the country becomes a national obligation. Additional laws specifically addressing education, employment, training, transportation accessibility, building requirements, roads, access to sporting and cultural events, and other social benefits were adopted. In addition, the Penal Code has been amended to extend provisions on non-discrimination to disabled persons.
Scope of Coverage
Legislation on persons with disabilities covers the following areas:
- Enterprises with more than 20 employees must hire six percent workers recognized as disabled or pay the equivalent in contributions to a development fund.
- Salaries must not be lower than those of the equivalent non-disabled employees, unless productivity is diminished (and in that case, the difference is paid from the central development fund).
- Sheltered workshops may be established publicly or privately to employ some individuals with permanent disabilities.
- Disabled workers have the right to vocational rehabilitation and training.
- Protection is provided against discrimination under the Penal Code and the Labor Code.
- Disabled children have the right to education, with priority given to schooling in the mainstream environment, and those with serious disabilities are given specially adapted individual transportation to and from school.
- Public transportation must be adapted to the needs of people with disabilities, with older trains being replaced by equipment that accommodates wheelchairs and has adapted restrooms; airline companies have signed a “code of good practices” relating to accessibility; rules are in force governing access to public or private road networks, including stipulations on parking spaces; and public buses are being adapted.
- Public housing constructed since 1983 must be adapted for wheelchairs and accessibility. Requirements are in place for workplaces with more than 20 employees.
- Physical and sports education programs must take into account different types of disabilities.
- Use of the Internet is being promoted for disabled persons with financial aid available to workers and students to acquire equipment to adapt computers to specific disabilities.
The object is to integrate all people with disabilities fully into society, with no barriers to participation in education, work, and social life and to insure the maximum level of autonomy for each disabled person. The 1975 law states that families, central and local government authorities, public organizations, social security organizations, public and private sector associations and other groups, and enterprises must all work to achieve the objective.
Public Policy Implementation
Organizations and committees representing persons with disabilities are consulted when policies, laws and regulations on related issues are drawn up.
Enforcement and Remedies
Various courts may enforce the rights of people with disabilities, depending on the nature of the claim of discrimination. Associations set up to defend and assist disabled persons and labor unions are authorized to take legal action on behalf of individuals with disabilities. In addition, there is the option of using the mediator established in 1973 to restrain the excesses of the administration and provide an avenue of remedy. The mediator may investigate complaints that the administration has not fulfilled its mission and may make proposals for reform.
Employers that do not fulfill their obligation to hire disabled workers may be fined. Discrimination based on state of health or disability is punishable in some cases by two years in prison and a fine of 30,000 euros.
205 JOURNAL OFFICIEL, J.O. (Official Gazette of France), July 1, 1975, at 6596.
206 CODE DU TRAVAIl, (C. TRAV), arts. L.323-1 to L.323-35, (ed., Dalloz 2001).
207 J.O., July 14, 1989, at 8860.
208 J.O., July 13, 1990.
209 J.O., Nov. 19, 1991, at 18311.
210 J.O., July 19, 1991, at 9531.
211 Supra note 1.
212 C. TRAV, art. L.323-10.
213 C. TRAV, art. L.323-11.
215 Metropolitan France is divided into 22 regions, which in turn are divided into 96 départements.
216 C. TRAV, art. L.323-11.
217 C. TRAV, arts. L.323-1 and 323-2.
218 C. TRAV, art. L. 323-4
219 C. TRAV, art. L.323-8-1.
220 C. TRAV, art. L.323-8-2 to L.323-8-4.
221 C. TRAV, art. L. 323-8-5.
222 C. TRAV, art. L.323-8-6.
223 C. TRAV, art. L.323-7. The period of advanced notice prior to dismissal is twice as long as for an able-bodied worker, but limited to three months.
224 C. TRAV, art. L.323-6.
225 Law 87-517 of July 10, 1987, J.O., July 12, 1987, at 7822; Law 95-116 of Feb. 4, 1995, J.O., Feb. 5, 1995, at 1992; Decrees 95-979 of Aug. 25, 1995, J.O., Sept. 1, 1995, at 12943; 96-1087 of Dec. 10, 1996, J.O., Dec. 12, 1996, at 18284; and 97-185 of Feb. 25, 1997, J.O., Mar. 4, 1997, at 3425.
226 Supra note 1.
227 C. TRAV, arts. L.323-30 to L.323-32.
228 C. TRAV, art. L.323-31.
229 Supra note 1.
231 C. TRAV, art. L.323-15 to L.323-18.
232 CODE PÉNAL, art. 225-1, (ed., Dalloz 2001).
233 J.O., Mar. 5, 2002, at 4118.
234 Supra note 6.
235 C. TRAV, art. L.122-45.
237 Id. art. 122-45-1
238 Supra note 2, arts. 4 to 8.
239 Supra note 4.
240 CODE DE L’ÉDUCATION, art. L.213-16.
241 Supra note 2, art. 52.
242 J.O., Dec. 31, 1982, at 4004.
244 Supra note 1.
245 Supra note 2, art. 49.
246 CODE DE LA CONSTRUCTION ET DE L’HABITATION, arts. L.111-7, L. 111-8, L.1118-1, and L.1118-2 (ed. Dalloz 1998)
248 J.O., Jan. 28, 1994, at 1585.
249 J.O., Mar. 10, 1995, at 3754.
250 The representative of the State in the département.
251 J.O., Sept 4, 1999, at 13271.
252 Supra note 2, art. 1.
253 J.O., July 8, 2002, at 10311.
254 LE MONDE, Stéphane Mandard, Les technologies de l’information offrent aux personnes invalides un moyen de conquérir leur autonomie, June 27, 2001, Lexis: Le Monde.
255 John Bell, Sophie Boyron & Simon Whittaker, PRINCIPLES OF FRENCH LAW, 200, 201 (Oxford University Press, 1998).