The European Court Of Justice Extends Protection Against Discrimination "By Association" On Grounds Of Disability

On 11 September 2025 in case C-38/24 (Bervidi), the European Court of Justice ruled that employees associated with a person with a disability may not only be protected against direct discrimination "by association" on grounds of disability but also be protected against indirect discrimination "by association" on grounds of disability. The judgment also confirms that employers may be required to provide reasonable accommodation for such employees. This issue had previously been unresolved in Danish and EU case law, as noted by the Danish Supreme Court back in 2016. This judgement of principle is expected to significantly impact Danish employment law in this area.

The case

The specific case concerned an employee working as a station operator for an Italian metro company. She claimed to have been subjected to unlawful indirect discrimination after repeatedly requesting a permanent reassignment to fixed morning shifts to take care or her minor son, who was severely disabled and required assistance specifically in the afternoons. While the employer did not grant a permanent change, it provided certain temporary accommodations, such as assigning her to a fixed workplace and allowing her to select her preferred working hours.

The ECJ ruling

In its judgment, the European Court of Justice clarified the scope of protection against discrimination "by association" under the Employment Equality Directive (2000/78/EC). This protection applies to employees, who do not themselves have a disability, but who provide the assistance that enables a person with a disability to receive the primary care required due to their condition. The Employment Equality Directive has been implemented into Danish law by the Danish Act on Prohibition of Discrimination (in Danish: "forskelsbehandlingsloven").

The core legal issue of the case was a textual discrepancy in the Employment Equality Directive concerning direct versus indirect discrimination. While it is clear that direct discrimination "by association" on grounds of disability is prohibited, as established by the European Court of Justice in the Coleman-case (C-303/06), the wording of the Employment Equality Directive limits protection against indirect discrimination to situations where the employee themselves has a disability. Similarly, the duty for an employer to provide reasonable accommodation is framed as applying only towards the disabled employees, not to those employees associated with a disabled person. This uncertainty has been reflected in Danish case law, where there have been no (published) cases on indirect discrimination by association since the Danish Supreme Court noted in 2016 that the legal situation was not settled.

The European Court of Justice held that the textual distinctions in the Employment Equality Directive do not preclude a broader interpretation in line with the purpose of the Directive, which is to combat all forms of discrimination on grounds of disability.

The European Court of Justice found that there is no justification for limiting the protection against indirect discrimination to employees who are themselves disabled. It should also include protection, where the detrimental treatment is rooted in the disability of a person for whom the employee has primary care responsibilities. Accordingly, the concept of "discrimination by association" must be understood to cover both direct and indirect discrimination.

Likewise, the European Court of Justice held that the duty to provide reasonable accommodation may, depending on the circumstances, extend to employees who are not themselves disabled but who provide essential care for a disabled person, e.g., by adjusting working hours or reassigning duties, unless doing so would impose a disproportionate burden on the employer.

It is for the national courts to assess whether such adjustments would impose a disproportionate burden in the specific case.

Remarks

While the judgment settles uncertainty on indirect discrimination by association related to disability in the context of employment, the outcome aligns with the European Court of Justice's case law in other areas of discrimination. In C-83/14 (CHEZ), the European Court of Justice confirmed that indirect discrimination "by association" is prohibited under the Race Equality Directive (Directive 2000/43/EC) in relation to race and ethnic origin - even though the wording of the said Directive, as in the Bervidi-case, referred only to individuals who themselves belong to a particular racial or ethnic group. This reflects a purposive approach from the European Court of Justice in its interpretation of EU equality law.

The judgement in the Bervidi-case highlights that employers must be attentive when making decisions or implementing measures based on criteria that appear neutral but may amount to indirect discrimination by association. We note that there is a particular risk when criteria such as flexibility, availability or number of working hours are emphasized, as these can disproportionately disadvantage employees associated with persons with disabilities. This risk should also be considered if an employer wishes to reject an employee's request for accommodations indirectly related to disability by association.

Read the European Court of Justice's judgement of 11 September 2025 in case C-38/24 Bervidi