The following selection of abstracts or summaries of articles and reports concern reasonable accommodation:

 

(A)  General

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

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

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This Article assesses the potential of reasonable accommodation in the CRPD. Reasonable accommodation is a unique domestic concept that gradually diffused transnationally. It is in the process of being thoroughly internationalized and ought to be re-domesticated for impact maximization. The  domestic implementation of the concept has not been very promising thus far, at least not in countries which do not already have experience with the concept. This Article traces some obstacles to implementing reasonable accommodation (which include the enduring allure of formal equality, disputes on the definition of ‘reasonable’ and the related notion of ‘undue burden’, the need to evaluate the bearer of the obligation, and how reasonable accommodation fits within the immediate versus progressive realization debate).

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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)

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

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This Chapter reviews the concept of reasonable accommodation under the CRPD (the human rights treaty where the concept first emerged). This is set against relatively more timid manifestation of the concept as articulated in other human rights frameworks (including the UN and regional human rights systems). It is hoped that the CRPD would give life to the duty to provide reasonable accommodation and impetus for its further development in international as well as national human rights practices. Given the procedural mechanisms for advancing disability discrimination and the provisions on reasonable accommodation under the two new Optional Protocols to the CRPD and ICESCR, this is a real possibility.

 

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

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(a) Asia-Pacific

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Japan

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

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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 the employment of persons with disabilities focused on employment quotas. Accordingly, the prohibition of discrimination signalled a major turning point. This Paper clarifies the framework and characteristics of Japan’s anti-discrimination legislation on the employment of persons with disabilities and compares Japan with the  legal systems of the USA and other countries. The Paper also highlights problems concerning reasonable accommodation with  reference  to  the current discussions on the “Draft  Guidelines”. Finally, the Paper considers Japan’s position on reasonable accommodation within the framework of the country’s unique employment and legal system. This consideration takes into account the principle of abuse of dismissal rights (Labor Contract Act, Article 16) and obligation to consider safety (health) (Labor Contract Act, Article 5).

 

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

 

(b) Europe

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

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

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The EU Framework Directive of 2000 on equal treatment in employment and occupa­tion introduces the obligation to provide reasonable accommodation to persons with disabilities. This Article considers the impact and meaning of the obligation from a human rights perspective. The substantive approach to equality recognizes that States Parties have positive obligations to bring about equality, which may entail imposing related duties on third parties. Although there is little case law thus far from the European Court of Justice in this respect, the judgments of other international human rights bodies provide interpretive guidance.

 

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)

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

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Ableism is a powerful social force that leads to the exclusion of persons with disabilities. The CRPD is based on equality and freedom for all peoples and contains two important principles to protect the rights of persons with disabilities, being accessibility and reasonable accommodation. The extent to which these principles may be relied upon depends on whether the State Party in question implements the CRPD adequately and whether companies in the State Party bear and fulfil its responsibility to employ persons with disabilities (and design workplaces so as to make them accessible to such individuals).

 

Civil society can call for the adequate implementation of the human rights asserted in the CRPD and national legislation. However, it is crucial to note that only States that have ratified the CRPD are obliged to implement its provisions. Articles 4 and 33 provide civil society with the right to participate in the implementation process of the CRPD. The CRPD can assist persons with disabilities in participating in the labour market without discrimination and if it is not implemented or followed sufficiently, the State Party must further its implementation. Where the State Party fails to fulfil its obligations under the CPRD, it would be in violation of its human rights obligations, which has direct consequences for the living conditions of persons with disabilities. The powerful ideological force of ableism would remain dominant and hamper or prevent the participation of persons with disabilities in the labour market and society.

 

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.

 

(c) America

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United States

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1. Unreasonable Accommodation and Due Hardship (2010)

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

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This Article analyses authoritative sources regarding the accommodation requirement under the Americans with Disabilities Act (ADA) and makes the following conclusions:

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(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. The duty 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.

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These abovementioned conclusions are in some respects consistent with, and in other respects inconsistent with, leading judicial interpretations, including the 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 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  analyse both Barnett and the lower court cases in light of that understanding.

 

(d) Africa

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South Africa

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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)

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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 CRPD 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)