Article 7 of the Federal Constitutional Act (B-VG) contains a disability-specific ban on discrimination and a commitment by the Republic (Federation, Länder and municipalities) to the equal treatment of disabled and non-disabled persons in all areas of daily life.
Since 1 January 2006, Austria has had its own disability equality law, an anti-discrimination law tailored to the disability field, which guarantees disabled people a legally enforceable right to non-discrimination or equal treatment.
Disability equality law
The disability equality law includes in particular:
The Federal Disability Equality Act (for matters of daily life),
a section in the Disability Employment Act (with provisions for the world of work), and Provisions in the Federal Disability Act (Disability Ombudsman).
The protection against discrimination applies to physically, mentally, psychologically or sensory disabled persons as well as to persons close to them (e.g. relatives).
In order to claim protection against discrimination, the disability does not have to be officially confirmed, but the discrimination must relate to the disability.
Direct and indirect discrimination and harassment are prohibited by law.
Prohibited: Discrimination and harassment
Discrimination under disability equality law occurs when people are disadvantaged compared to others because of their disability, for example through less favourable treatment, but also through barriers.
In principle, discrimination through barriers exists when it is legally possible and reasonable to remove them. If, for example, the subsequent installation of a passenger elevator in an old building is not possible for reasons of building law or monument protection, the lack of accessibility in this case does not constitute discrimination.
If the installation is legally possible, an examination of reasonableness takes place in court. Barriers only constitute discrimination if the creation of accessibility is reasonable.
Other forms of discrimination include instructions to discriminate and harassment for disability.
Instruction means that one person causes another to discriminate against or harass one or more people with disabilities.
Harassment is unwanted, inappropriate or offensive behaviour that violates the dignity of a person.
Prohibition of discrimination in the world of work
The prohibition of discrimination against disabled people in the world of work includes labour law, federal service law and the rest of the world of work.
The prohibition of discrimination applies in particular:
- in the establishment of the employment relationship (application, recruitment),
- in fixing the remuneration,
- in the granting of voluntary social benefits,
- for training and retraining measures,
- in career advancement,
- other working conditions,
- on termination of employment (discriminatory dismissals or dismissals may be challenged in court),
- access to vocational guidance, vocational training, further vocational training and retraining outside employment,
- membership of and involvement in an organisation of workers or employers, or an organisation whose members belong to a particular profession, including the benefits provided for by such organisations,
- the conditions for access to self-employment.
The legal prohibition of discrimination against disabled people in the world of work has historically arisen from the need for Austria to implement the EU Framework Directive 2000/78 on equal treatment in employment and occupation.
Other non-discrimination provisions in favour of disabled people (state and municipal employees, farm workers) are also included in the competence of the Länder.
Legal approach to discrimination
If someone feels discriminated against, the first way leads to the Ministry of Social Affairs Service. They try to solve the problem by mediation.
During the conciliation procedure, there is a time limit. This means that the deadlines are postponed and the claims cannot expire or become statute-barred.
Only if the mediation attempt fails can a claim for damages be brought before the court and, in the event of harassment, an injunction be sought.
According to civil law (§ 1293 Allgemeinem Bürgerlichem Gesetzbuch – ABGB), damages can be asserted if they were caused to the injured party in the property, in their rights or in their person (material damages). However, immaterial damages can also be asserted (e.g. pain inflicted).
In the event of discrimination in the form of harassment (e.g. abuse, ridicule, abuse), the victim of discrimination is entitled to a minimum compensation of € 1,000. From 1 January 2018, it will also be possible to bring an action for injunctive relief in the event of discrimination through harassment.
The respective claims must be asserted in court, in matters of employment law with the service authority.
If the court finds discrimination, it is entitled to damages. Within the scope of this obligation to pay damages, the person affected receives compensation for the financial loss, and in the event of gross negligence or intent on the part of the injuring party, also the loss of profit.
In addition, an appropriate amount of money is due as compensation for the personal impairment suffered or the discrimination-related impairment. If the discrimination took the form of harassment (e.g. verbal abuse, ridicule, abuse), the victim of the discrimination receives the minimum compensation.