Protection of Persons with Disabilities from Employment Discrimination, with a Focus on Serbian Legislation and Practice

Abstract

Like so many European countries, the Republic of Serbia is facing high rates of unemployment among persons with disabilities. This can be explained by various factors, including indirect discrimination of persons with disabilities within the school system and employment procedures, as well as their fear of forfeiture of social benefits upon entering into an employment contract. Law on vocational rehabilitation and employment of persons with disabilities (2009) is promoting employment of such persons in the open market, in accordance with the general conditions or by reasonably adjusting the workplace to their needs, while 'sheltered' employment is, as a rule, reserved for persons who, due to the grade of their disability, are unable to fulfill their need for economic security as initially described above. Based on international standards and comparative experience, the legislator prescribed multiple measures, including employment quotas, for equal participation of persons with disabilities in the labour market as well as increase in their employment. Although the rate of employment of persons with disabilities has risen slightly since the Law came into force, many of these people are still without work, mainly because employers sought to 'bypass' their designated employment obligations any way they could, even pressuring the (existing) staff to register as persons with disabilities. On the other hand, judges are faced with the challenge of 'honing down' reasonable adjustments standard, especially as the corresponding obligation of the employer exceeds the ban for indirect discrimination, and yet differs from positive discrimination. Therefore, the paper shall reassess the limits of the obligation for reasonable adjustments, as well as the circle of protected persons, since comparative law recognizes the practice of reserving employment quotas exclusively for people with severe disabilities. Especially so, because limiting the designated employment obligation to persons with severe disabilities is justified when the purpose of the quota system is to facilitate employment for people facing the biggest problems on the labour market. Conversely, the need to reduce the number of users of social benefits speaks in favour of establishing a general obligation for employment of persons with disabilities.