17.09.2025

Indirect discrimination by association – a new milestone in CJEU case law

The judgment of the Court of Justice of the European Union (CJEU) delivered on September 11, 2025[1], in case C-38/24 [Bervidi], once again confirmed the prohibition of discrimination on grounds of disability – this time, however, with specific reference to indirect discrimination by association, in the sense of differential treatment of an employee who does not himself have a disability but who cares for his disabled child.

 The Court was asked to give a preliminary ruling in a case where an individual complained that her employer wouldn't give her reasonable accommodation to let her take care of her disabled child. More specifically, the applicant repeatedly asked her employer to assign her permanently to a position with fixed working hours, even if this would require a lower qualification, so that she could care for her minor son, who has a severe disability and is totally disabled, lives with her, and has to attend a fixed afternoon care program. The national courts dismissed her action, essentially on the grounds that she was not the person entitled to take action against discrimination in the workplace because she was not the person with a disability.

As a preliminary point, it should be noted that, according to the Directive:

• Direct discrimination occurs when a person is treated less favorably than another person is, has been, or will be treated in a similar situation on one of the grounds referred to in Article 1[2] ;
• indirect discrimination occurs when an apparently neutral provision, criterion, or practice may have the effect of putting persons of a particular religion or belief, disability, age, or sexual orientation at a particular disadvantage compared with other persons,

except in cases objectively justified or where the employer is required to take reasonable accommodation measures (Article 5 of Directive 2000/78[3]) to eliminate disadvantages.

The Court's decision provides an interpretation of Council Directive 2000/78/EC of November 27, 2000, establishing a general framework for equal treatment in employment and occupation[4], which established the right of every person to equal treatment "in employment and occupation" and which applies to all persons, including in relation to the conditions of employment and work  provided for in Article 3(1)(c) thereof. These provisions have also been interpreted in the light of international law:

• the United Nations Convention on the Rights of Persons with Disabilities[5] which defines discrimination on the basis of disability and reasonable accommodation (those appropriate and necessary modifications and adjustments that do not impose a disproportionate or undue burden, necessary in a particular case, to ensure that persons with disabilities have access to and can exercise all human rights and fundamental freedoms on an equal basis with others), and
• the Charter of Fundamental Rights of the European Union.

On that occasion, reference was made to an earlier ruling by the Court (judgment of 17 July 2008, Coleman, C-303/06, EU:C:2008:415, paragraph 56),  which had already established that directdiscrimination ‘by association’ on grounds of disability is prohibited by Directive 2000/78, that prohibition not being limited to persons who themselves have a disability: where an employer treats an employee who does not himself have a disability less favorably than has been or will be treated in a similar situation, and it is proven that the unfavorable treatment to which that employee is subject is based on the disability of his child, for whom the employee provides most of the care he needs, such treatment is contrary to the prohibition of direct discrimination.

It has been established that the principle of equal treatment should not be interpreted restrictively, in the sense that only direct discrimination on grounds of disability is prohibited and that it refers exclusively to persons with disabilities themselves, especially since the Directive refers both to combating discrimination in all its forms and to the need to take appropriate measures to promote the social and economic integration of persons with disabilities (see, to that effect, judgment of 17 July 2008, Coleman, C-303/06, EU:C:2008:415, paragraph 43). According to recital 12 of that directive, ‘any discrimination’, whether direct or indirect, on grounds of disability must be prohibited in the Union.

The issue of recognizing discrimination "by association" on grounds of disability arises in the same way, regardless of whether that discrimination is direct or indirect, and therefore justifies not only the prohibition of direct discrimination, but also indirect discrimination "by association."

Furthermore, the European Court of Human Rights has already ruled that discriminatory treatment suffered by a person on the grounds of the disability of their child, with whom they have close personal ties and whom they care for, is considered a form of discrimination on grounds of disability falling within the scope of Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see, in this regard, ECtHR, 22 March 2016, Guberina v. Croatia, CE:ECHR:2016:0322JUD002368213, § 79), without distinguishing whether such discrimination is direct or indirect.

In those circumstances, it has been held that Directive 2000/78, and in particular Articles 1 and 2(1) and (2)(b) thereof, read in the light of Articles 21, 24, and 26 of the Charter, as well as Articles 2, 5, and 7 of the UN Convention, must be interpreted as meaning that the prohibition of indirect discrimination on grounds of disability also applies to an employee who does not himself have a disability but who is subject to such discrimination in consideration of the assistance he provides to his child with a disability, which enables him to receive most of the care he needs in view of his condition.

With regard to the employer's obligation to make "reasonable accommodation" for an employee who provides assistance to his or her child with a disability, the Court emphasized the importance of this obligation, without which the prohibition of indirect discrimination "by association" of an employee would be deprived of an important part of its useful effect. More specifically:

• an employer has an obligation to provide reasonable accommodation, within the meaning of Article 5 of Directive 2000/78, for such an employee;
• the Directive has provided a broad definition of the concept of "reasonable accommodation," in the sense that a reduction in working hours or a transfer to another position could constitute such effective measures – without, however, imposing a disproportionate burden on the employer;
• where the employee is not himself disabled but cares for a disabled child, the measures referred to must also allow, for the same purpose, the adaptation of his working environment.

 Directive 2000/78/EC was transposed into domestic law by Ordinance No. 137/2000 on the prevention and punishment of all forms of discrimination[6], and the Labor Code adopted by Law 53/2003 also regulates the principle of equal treatment in employment relationships, defining the concepts of direct discrimination, indirect discrimination, and discrimination by association. The two regulations allow victims of alleged discrimination to bring legal action as follows:

• pursuant to the provisions of Government Ordinance No. 137/2000 - an action for compensation and restoration of the situation prior to discrimination or annulment of the situation created by discrimination, in accordance with common law. The application is exempt from court fees and is not conditional on referral to the Council (Article 27). These provisions constitute common law in this area, which may be invoked when discrimination is based on criteria other than those regulated by the Labor Code;
• according to the Labor Code – an action seeking to compel the employer to pay compensation for alleged material or moral damage caused by the employer's fault during the performance of work duties or in connection with work (Art. 253) – these provisions are special in relation to Government Ordinance No. 137/2000.

From a procedural point of view, both actions are exempt from court fees, are subject to the general limitation period, and the burden of proof that there has been no violation of the principle of equal treatment lies with the person against whom the complaint was filed/the employer.

Of course, it is not excluded that the person concerned may lodge a complaint directly with the National Council for Combating Discrimination, but in this case, only the removal of the consequences of the discriminatory acts and the restoration of the situation prior to the discrimination may be requested, and not the award of damages (Article 20 of Government Ordinance No. 137/2000).

The CJEU judgment in the Bervidi case is a particularly important landmark in case law, clarifying expressly that the prohibition of discrimination on grounds of disability is not limited to persons who themselves have a disability, but also applies in cases of indirect discrimination by association. Thus, the protection of Directive 2000/78/EC can be invoked by an employee when they are disadvantaged at work because of the care they provide to their child with a disability, not only when they are directly discriminated against.

At the same time, the principle of equal treatment implies not only a formal prohibition of discrimination, but also an obligation on employers to make reasonable adjustments, such as adapting working hours or assigning a job compatible with the family situation, as long as these measures do not impose a disproportionate burden on them. It remains the task of the national courts to determine whether, in light of the considerations developed by the CJEU, the request of a person alleging discrimination of this type constitutes a disproportionate burden on the employer within the meaning of Directive 2000/78/EC.

 An article signed by Oana Zamă, Partner - ozama@stoica-asociatii.ro - STOICA & ASOCIAȚII