Protection against Discrimination on Grounds of Chronic Diseases

2013

- Fact sheet on the research project -

Significant discriminations against persons suffering from chronic diseases

There are large gaps in the available data on the occurrence of discriminations on grounds of chronic diseases. This is why the authors recommend to gather more data in order to get a more or less representative impression of discriminations on grounds of chronic diseases. As can be derived from the existing studies and reports, it is particularly the group of persons suffering from a visible chronic disease and/or a disease with a stigma attached which is affected by discriminations, especially in working life and in relation to insurance services. ‘The most frequent cases of deprivation and discrimination are reported by persons suffering from HIV/AIDS or obesity, one of the reasons for this being that relevant data about these disorders are available.

Discrimination against persons suffering from chronic diseases in working life

In working life, discrimination on grounds of chronic diseases can be discerned at all stages of an employment relationship – during the application procedure, when concluding the employment contract, during employment and when terminating the employment relationship. Reported cases include discriminations against persons suffering from diabetes mellitus and HIV/AIDS, but also obesity, severe forms of neurodermatitis and mental disorders. Frequently, chronic diseases are concealed in applications and in employment relationships for fear of negative consequences, such as being dismissed or not being employed.

Discrimination of persons suffering from chronic diseases in the private insurance service sector

The private insurance system is a large sector where people are rather often affected by discrimination on grounds of chronic diseases. Discriminations have been reported, both by refusal of an insurance police but also by differences in determining the premium - in cases of diabetes mellitus, HIV/AIDS, multiple sclerosis, chronic enteritis and mental diseases such as depressions.

In international law, EU law and in the General Equal Treatment Act, chronic diseases are not listed as a separate characteristic.

In international law (in particular in the United Nations human rights covenants, the European Convention on Human Rights [ECHR] and the relevant ILO Conventions), in EU law and in the General Equal Treatment Act, the term ’chronic disease’ is not listed as a separate characteristic. Since the catalogues of grounds of discrimination are not conclusive, chronic diseases fall into the category “other status”, as they have not been explicitly mentioned as characteristics in the United Nations human rights conventions and in the European Convention on Human Rights.

The characteristic ‘chronic disease’ is closely linked to the term of disability included in the Basic Law and in the General Equal Treatment Act (AGG).

The question as to whether ‘chronic disease’ is implied in the term 'disability’ has not been finally settled. Starting out from the social model of disability, the experts conclude that ‘chronic disease” belongs to the term ‘disability’, as specified in Article 3, para 3, second sentence of the Basic Law (GG) and Section 1 of the General Equal Treatment Act (AGG). However, it is required that the chronic disease entails a permanent medical functional impairment, which in connection with social barriers leads to an impairment of participation in society or could rather certainly lead to this impairment or results in the threat of it. It is not decisive whether the restricted participation in social life is a result of the functional impairment or whether it was caused by the fact that the person suffering from a chronic disease is alleged to have a reduced ability of participation. A disability also exists in those cases where social prejudice and/or stigma on grounds of a chronic disease lead to an impairment of participation in social life.

Statistical discrimination against persons suffering from chronic diseases in the private insurance service sector as a particular challenge

Persons suffering from chronic diseases are considerably affected by discrimination in the private insurance sector. This particularly applies to the insurances (life insurance, occupational disability insurance, accident insurance, health insurance) which are subject to the Insurance Contract Act (German abbreviation: VVG). Due to the freedom of contract existing in the private Insurance Contract Act, the insurance enterprises are generally free to decide whether they will refuse to conclude an insurance contract or conclude it on comparatively worse conditions (e.g. higher premiums), depending on the result of their risk analysis. The risk assessment falls within the competence of the insurance enterprises. It is true that, according to the General Equal Treatment Act (Section 20, para 2, second sentence), differences of treatment on the ground of a disability shall be permissible only where these are based on recognized principles of risk-adequate calculation, in particular on an assessment of risk based on actuarial calculations which are in turn based on statistical surveys. However, it has been legally contested whether insurance enterprises may exclusively rely on statistical data or, in case of a lack of these statistics, whether other kinds of information - such as empirical knowledge of medicine – are sufficient as a basis for calculating the risks as well. 

Moreover, in general, neither the data serving as a basis of risk analysis for insurance providers nor the method of risk calculation are transparent in practice. Furthermore, it has not been settled from which definition or interpretation of the term ‘chronic disease’ the insurance enterprises start out.  It is not known either how they collect and analyse individualized data and how they weight them in relation to the statistical data and/or empirical knowledge. Moreover, there is only superficial knowledge about the practice of stating the reasons for discriminations in concrete and individual cases.

From the point of view of international and constitutional law, these legal and virtual uncertainties are extremely problematic – particularly in view of the considerable violations of the right to self-fulfilment (Article 2 of the Basic Law), the significant infringements of central spheres of life and also because of the probably continuing stigmatization of and discrimination against persons suffering from chronic diseases.

Protection of persons suffering from chronic diseases in international law

In some countries, such as Switzerland, France and Great Britain, chronic diseases are also implicitly included in the characteristic ‘disability’ in various Acts and prohibitions of discrimination, similar to the situation in Germany. Moreover, in certain decrees in Belgium, Great Britain, the Netherlands, and Portugal the ground of discrimination on grounds of chronic disease is either specifically stated or specific chronic diseases are explicitly mentioned. Another solution approach is the introduction of the ground ‘state of health’ and/or ‘health’ in decrees in France, Hungary and Slovakia.