Academic Articles

The following are a selection of abstracts or summaries of articles and reports concerning reasonable accommodation:

(A)  General

1. Global Reasonable Accommodation: How the Convention on the Rights of Persons with Disabilities Changes the Way We Think about Equality (2014)

Article written by Frederic Megret and Dinah Msipa and published in South African Journal on Human Rights (2014, Volume 30)

This article assesses the potential of the notion of reasonable accommodation as included in the UN Convention on the Rights of Persons with Disabilities. Reasonable accommodation provides a unique case of a domestic concept that has been gradually diffused transnationally, is in the process of being thoroughly internationalised and ought now to be re-domesticated so as to maximise its impact. The record of its domestic implementation so far however is not very promising, at least in countries that do not already have experience with the concept. The article traces some of the conceptual obstacles to implementation of reasonable accommodation including the enduring allure of formal equality, disputes about the meaning of ‘reasonable’ and the related notion of ‘undue burden’, the need to evaluate who the obligation applies to, and how it fits within the immediate/progressive realisation dilemma.

Citation: Frederic Megret, Dinah Msipa, Global Reasonable Accommodation: How the Convention on the Rights of Persons with Disabilities Changes the Way We Think about Equality, 30 S. Afr. J. on Hum. Rts. 252 (2014)
2. The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities (2011)

Article written by Janet E. Lord and Rebecca Brown and published in Critical Perspectives on Human Rights and Disability Law (2011)

This chapter reviews the concept of reasonable accommodation as it is articulated in the CRPD, the human rights treaty where it makes its first appearance. This analysis is then set against the more timid manifestation of the reasonable accommodation duty in other human rights realms, including its application in the UN and regional human rights systems. The CRPD, it is hoped, will help enliven the reasonable accommodation duty and thereby give impetus for its further development in international as well as national human rights practice. This possibility, the article argues, is genuine given the procedural mechanisms now in place for advancing  disability  discrimination  and  reasonable  accommodation claims under the two new Optional Protocols to the CRPD and ICESCR respectively.

Citation: Janet Lord and Rebecca Brown, The Role of Reasonable Accommodation in Securing Substantive Equality for Persons with Disabilities: The UN Convention on the Rights of Persons with Disabilities, (2011) Critical Perspectives on Human Rights and Disability Law 273-308

 

(B)By region

(a) Asia-Pacific

Japan

1. Reasonable Accommodation for Persons with Disabilities in Japan (2015)

Article written by Tamako Hasegawa and published in Japan Labor Review (2015, Volume 12 Issue 1)

In June 2013, the Act on Employment Promotion etc. of Persons with Disabilities was amended to prohibit employment discrimination against persons with disabilities  and  oblige  employers  to  provide  “reasonable  accommodation.”  Until then, Japan’s policy on employment of persons with disabilities had been focused on employment quotas, and the addition of this new element prohibit-ing discrimination signaled a major turning point for the policy. In this paper, the framework and characteristics of Japan’s anti-discrimination legislation on employment  of  persons  with  disabilities  will  first  be  clarified,  including  a  comparison with legal systems in the USA and other countries. Next, problems concerning  “reasonable  accommodation”  (which  plays  an  important  role  in  disability  discrimination  law)  will  be  highlighted  with  reference  to  “Draft  Guidelines” currently being discussed with a view to formulation. Finally, the position that should be occupied by reasonable accommodation within Japan’s unique employment system and legal system—including the legal principle of abuse of dismissal rights (Labor Contract Act, Article 16) and the obligation to consider safety (health) (Article 5 of the same)—will be discussed.

Citation: Tamako Hasegawa, Reasonable Accommodation for Persons with Disabilities in Japan, (2015) Japan Labor Review 12(1) 21-37

(b) Europe

1. Reasonable accommodation in EU equality law in a broader perspective (2007)

Article written by Jenny E. Goldschmidt and published in the Academy of European Law (ERA) Forum (2007, Volume 8 Issue 1)

The EU Framework Directive on equal treatment in employment and occupa­tion of 2000 introduces the obligation to provide reasonable accommodations to peo­ple with disabilities. In this article the author deals with the impact and meaning of this obligation from a human rights perspective. Adopting a substantive approach to equality, it has been recognised that States Parties have positive obligations to bring about equality, which may entail that duties are imposed on third parties. Although thus far there is little case law of the european court of Justice on the implications of the Framework Directive, the judgments of other international bodies on human rights law provide relevant points for interpretation

Citation: Jenny E. Goldschmidt, Reasonable accommodation in EU equality law in a broader perspective, Academy of European Law (ERA) Forum (2007) 8 (1) 39 –  48

2. “Reasonable Accommodation” and “Accessibility”: Human Rights Instruments Relating to Inclusion and Exclusion in the Labor Market (2016)

Article written by Marianne Hirschberg and Christian Papadopoulos and published at MDPI Societies Journal (2016, Volume 6 Issue 3)

Ableism is a powerful social force that causes persons with disabilities to suffer exclusion.The UN Convention on the Rights of Persons with Disabilities (CRPD) is based on the human rights principles of equality and freedom for all people.   This Convention contains two human rights instruments: the principle of accessibility and the means of reasonable accommodation, which can be used to protect the human rights of disabled persons. The extent to which they are used depends on whether the state implements the Convention adequately and whether companies accept their responsibility with respect to employing disabled persons and making workplaces available and designing them appropriately. Civil society can demand the adequate implementation of the human rights asserted in the CRPD and, thus, in national legislation, as well. A crucial point here is that only a state that has ratified the Convention is obliged to implement the Convention. Civil society has no obligation to do this, but has the right to participate in the implementation process (Art. 4 and Art. 33 CRPD). The Convention can play its part for disabled persons participating in the labor market without discrimination. If it is not implemented or not heeded sufficiently, the state must push this and put more effort into its implementation. If the state does not do this, this violates human rights and has direct consequences for the living conditions of disabled persons. The powerful ideological force of ableism then remains dominant and hampers or prevents the participation of persons with disabilities in the labor market and, thus, in society as a whole.

Citation: M. Hirschberg, M.; C. Papadopoulos, “Reasonable Accommodation” and “Accessibility”: Human Rights Instruments Relating to Inclusion and Exclusion in the Labor Market, Societies 2016, 6, 3.

(b) America

United States

1. Unreasonable Accommodation and Due Hardship (2010)

Article written by Mark C. Weber and published in Florida Law Review (2010, Volume 62 Issue 5)

This Article analyzes authoritative sources concerning the Americans with Disabilities Act (ADA) accommodation requirement and concludes:

(1) Reasonable accommodation and undue hardship are two sides of the same  coin.  The  statutory  duty  is  accommodation  up  to  the  limit  of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.”

(2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefit balance but rather a cost-resource balance; it is also subject to increase over time.

(3) The accommodation duty entails mandatory departure from neutral workplace  rules,  effectively  creating  a  preference for  workers  with disabilities, but one not to be confused with the affirmative action concept found in other anti-discrimination regimes.

These conclusions are in some respects consistent with, and in other respects inconsistent with, leading judicial interpretations, including the single  Supreme  Court  case  on  accommodations  in  employment, US Airways v. Barnett. This Article will suggest avenues by which courts may be led back to the correct interpretation of reasonable accommodation by looking to the text of the statute and its legislative history, interpretations by  the  enforcing  agency,  judicial  construction  of  analogous  language elsewhere in the ADA, and precedent from other jurisdictions. For twenty years, judicial and scholarly attention focused on who is a person with a disability entitled to the protections of the ADA. Narrow readings of coverage kept many cases with accommodations claims from reaching a decision on the merits. Recently, Congress enacted the ADA Amendments Act, vastly expanding the range of covered individuals. After the Amendments, attention will turn to what accommodations employers must provide. This Article is the first to return to the original sources to determine  what  Congress  required  and  to  analyze  both Barnett  and  the lower court cases in light of that understanding.

(c) Africa

South Africa

1. Disability and Reasonable Accommodation: HM v. Sweden Communication 3/2011 (Committee on the Rights of Persons with Disabilities) (2014)

Article written by Ilze Grobbelaar-Du Plessis and Annelize Nienaber and published in South African Journal on Human Rights (2014, Volume 30)

HM v Sweden is the first instance in which the CRPD Committee resolved a communication brought against a state under the Optional Protocol to the CRPD since the Committee was elected in November 2008. This Article discusses the issues raised in the communication and analyses the implications of the CRPD Committee’s views for the rights of persons with disabilities in South Africa.

Citation: Ilze Grobbelaar-Du Plessis, Annelize Nienaber, Disability and Reasonable Accommodation: HM v. Sweden Communication 3/2011 (Committee on the Rights of Persons with Disabilities), 30 S. Afr. J. on Hum. Rts. 366 (2014)