Reasonable Accommodation as a Legal Duty

In one line

Reasonable accommodation is a duty to make necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, so that a person can exercise rights on an equal basis with others; and its legal significance is that the denial of it is itself an act of discrimination.

Why the idea was needed

Formal equality fails a person with a disability in a particular way.

A rule that applies to everybody equally can exclude one person completely. A written examination applies to every candidate; a blind candidate cannot sit it. A staircase serves every employee; a wheelchair user cannot use it. Neither rule mentions disability, neither is intended to exclude, and both exclude absolutely.

Substantive equality answers part of this, by permitting special provision under article 15(3), article 15(4) and article 16(4). But reservation is a group remedy and it operates at entry. It does not tell an employer what to do about the staircase after the person is appointed.

Reasonable accommodation is the individual remedy that operates continuously. It asks a different question: what adjustment does this person need in this situation to do what everyone else can do?

The three elements

One: necessary and appropriate modification and adjustments. The measure must be needed in a particular case, which makes the duty individual rather than general. Accessibility under article 9 is owed to everyone in advance; accommodation is owed to a person on the facts.

Two: not imposing a disproportionate or undue burden. This is the limit, and it is the word reasonable doing its work. The burden is assessed against the resources of the person who owes the duty, so what is undue for a small shop is not undue for a public undertaking.

Three: to ensure enjoyment or exercise on an equal basis with others. The measure of success is comparative. The question is not whether something has been done but whether the person is now in the same position as everybody else.

The move that made it law

The Disability Convention's definition of discrimination includes, in terms, "denial of reasonable accommodation".

That single clause changes the legal character of the duty in four ways.

It creates a cause of action. A person refused an adjustment does not have to show hostility, intention or comparative treatment. They show that they asked, that the adjustment was reasonable, and that it was refused.

It shifts the burden of justification. Once the request is shown to be necessary and appropriate, the party refusing must establish the disproportionate or undue burden.

It reaches private parties, because the definition is not confined to State action.

And it makes inaction actionable. Discrimination law ordinarily catches what someone did. This catches what they failed to do, which is what disability exclusion mostly consists of.