Disability discrimination: legal remedies

The discrimination against handicapped persons has a very particular history in our law, in as much as this discrimination becomes object of sanctions only a long time after other traditional types of discrimination, such as discrimination against women, have been excluded. Even the Constitutional principles which render the discriminate acts certainly unlawful (art. 2, 3, 4, 32, 35, etc.), were interpreted in respect to the protection of the handicapped persons only in the 90’s of the last century, when our legislation had to conform to the ruling of the EU. Indeed, only article 16 of Law No. 68 of March 12th, 1999 annulled the norm relating to the "testo unico" on the public employment sector which stipulates that «a state of good health» is an abstract and general requirement for recruitment into the public administration. In the year 2003, when the precise European directives were implemented, article 15 of the Workers Statute was reformed in order to define discrimination of handicapped persons unlawful also in respect to private employment. Nowadays for example, there is a protection at the level of domestic law, at the level of international law based on the UN Convention of 13 December 2006, and strictly speaking also at the level of EU law as well as a protection based on the European Convention of Human Rights. In spite of this pluralism of sources of the law, only the intervention of the various Courts, like the Constitutional Court and those of Luxembourg and Strasbourg, which are in constant dialogue with each other, manage to defend handicapped persons in the face of the most recent forms of discrimination, particularly like that of racism which quite often has as its object non-EU immigrants, at least in our particular experience.

Keywords: A satisfactory state of good health; Discrimination; Non-EU immigrant handicapped persons; International protection of handicapped persons; Handicapped persons and the EU; Handicapped persons and the Convention of Human Rights

Giuseppe Tucci, La discriminazione contro il disabile: i rimedi giuridici in "GIORNALE DI DIRITTO DEL LAVORO E DI RELAZIONI INDUSTRIALI " 129/2011, pp 1-28, DOI: 10.3280/GDL2011-129001