Through seeking equality, the law seems to aspire to do the impossible: erase differences. Though progressive legislation and regulations in Europe often single out disabled persons for favourable treatment to overcome systemic and historical disadvantages, the core approach of the law remains the same. This is undoubtedly a more challenging task when seeking to ensure all disabled people live on an equal footing, and the law has often given up when it seems too hard, particularly considering how the disabled community are uniquely diverse in their characteristic that qualifies them for protected status; for the LGB+ community, they are protected by virtue of their sexual orientation, for ethnic and racial minorities, it may be their culture or their skin colour, and for women, men, and transgender individuals, they are protected because of their sex. Disabilities are far more diverse than even culture: some estimates have there being 6,000 distinct cultures in the world, whereas there are 2 billion disabled people worldwide, whom all have slightly varying conditions, diagnoses, and abilities.
It is impossible to provide a statutory basis that would adequately protect all of these individuals, including the 12 million disabled people in the UK, and so, to some extent, the law allows common sense to bridge the gaps. They do this, in the Employment Equality Directive for example, through using the favourite 'stop-gap' term of lawyers: "reasonableness". To enable disabled people to enter the workforce, the EED creates a duty on employers to provide "reasonable accommodation" to "enable a person with a disability to have access to, participate in, or advance in employment" and the concept of 'reasonable accommodation' has been replicated throughout the world. In the US, the Americans With Disabilities Act (ADA) even spells out some of the possible required accommodations, from "making existing facilities... readily accessible" to "job restructuring, part-time or modified work schedules... [or] the provision of qualified readers or interpreters." The use of such reasonable accommodations thus places a positive duty on employers and the public sector to take action to enable the fair and equal participation of disabled individuals in society, where no such positive duty exists for other protected groups. Karlan and Rutherglen illustrate this with a useful example: if a male worker who is required to carry fifty-pound sacks is physically disabled by a back ailment and no longer able to perform this function of his job, the company he works for can be required to make the reasonable accommodation of providing the worker with a dolly on which to transport the sacks, but if the worker was a woman, and couldn't carry the heavy sacks, but was not physically disabled, no accommodation would be required by law, and the woman could be fired for being unable to perform this function of her job.
Karlan and Rutherglen therefore view the 'reasonable accommodation' requirement as a form of affirmative action, with the key difference that it is far likelier to involve personalised special treatment than affirmative action on the basis of race or sex, because the law, where such positive action is required, does not differentiate between 'degrees' of race or sex, but necessarily must between 'degrees' of disability. However, this duty to make reasonable accommodations is not unlimited, and, as has been discussed in the April 2021 blog post on religious discrimination, the law attempts a balancing exercise between the two competing rights: the right of the disabled person to be allowed access to society, and not placing an undue burden on the employer or public service that would inhibit their right to be efficient and profitable. Of course, as Karlan and Rutherglen point out, the cost of making these reasonable accommodations may be outweighed by the increased productivity of the disabled worker, but such long-term investments may not be reasonable, or even possible, when an employer is confronted with the bill for the reasonable adjustments, leaving the disabled individual prevented from fully engaging in society.
There are numerous examples of cases in which disabled employees, or prospective employees, have been denied employment on the basis that their requirements constituted unreasonable accommodations. One such emotive case is that of Kenny v Hampshire Constabulary, where an applicant for a job was denied employment as he required a carer to attend to his personal needs, such as going to the toilet, which placed an undue burden on the employer. Despite Kenny being the most qualified candidate, and the Constabulary having provisionally offered him employment pending assessment of the reasonable accommodations he required, the Employment Appeal Tribunal held that "it is going too far in our judgment to suggest that employers are under a statutory duty themselves to provide carers to attend to their employees' personal needs." As a result, Kenny was denied employment. Though such cases may be upsetting to read about, they are the uncomfortable reality faced by disabled employees.
In the USA, the employment rate for disabled people is less than half that of people without disabilities, and those in employment suffer a $6,000 annual pay gap on average compared to the pay of those without disabilities, or just 64 cents for every dollar a non-disabled employee earns, leading 28% of disabled people living below the poverty line, compared with 12% of non-disabled people. These huge disparities evidence the financial struggle that disabled individuals face, and the use of the positive duty on the employers of disabled people arguably hamper their ability to assimilate into the workforce, particularly when considering individuals like Kenny. In fact, one of the primary reasons Kenny was unable to enter the workforce was that the public sector organisation tasked with aiding companies in hiring disabled individuals, by providing both financial and real support to enable reasonable accommodations to be made, did not respond to his request for aid.
Though the use of 'reasonable accommodations' may be a "remarkable legislative accomplishment", as Harlan writes, her research also uncovered numerous barriers in the provision of these accommodations, from employers' reluctance to recognise conditions as disabilities to the "knowledge-resource differential", whereby 1 in 3 disabled employees are unaware of the law, but employers are better informed and better situated to find a way out of these reasonable accommodations. These issues led 40% of the respondents in Harlan's research to hesitate asking for an accommodation they felt they needed, and the culture of the working environment has led most employees to come to work sick, in pain or without adequate sleep, leaving them less productive than their non-disabled peers in an attempt to prevent "their disability [from being] used against them." Harlan concludes that "employers succeed in limiting mandated reforms by using their organisational power to discourage employees from asking for accommodation and rejecting requests they perceive as disruptive to the organisation."
Clearly, the use of the positive duty to make reasonable accommodations is not succeeding in its aim to provide equal opportunities for disabled and non-disabled employees. While the statutory bases for such a duty is innovative, it is unfairly weighted towards the employer in practice, and without state intervention or funding, it is likely to continue.
The opinions of this article are solely those of the author and are not intended to provide accurate legal advice for anyone to rely on. While the content is intended to be factually correct, the author does not accept any responsibility or liability arising from the use or misuse of this article or any loss/inconvenience/damage stemming from this. Legal advice should be sought from a qualified professional, not this blog. The opinions represented in this blog are personal and belong solely to the blog owner, and do not represent those of the people, institutions, or organisations that the owner may or may not be associated with in a professional or personal capacity, unless explicitly stated. The views expressed by any podcast guest are their own entirely, and do not necessarily reflect those of the blog owner. The blog owner is not responsible and liable for any discrepancy, if any. Any content provided by this blog or its companion podcast is not intended to malign any religion, ethnic group, club, organisation, company, individual, or anyone or anything.
Sources:
- Department for Work and Pensions, Family Resources Survey: United Kingdom 2011/12 (National Statistics, 2013)
- Pamela S Karlan and George Rutherglen, 'Disabilities, Discrimination and Reasonable Accommodation' (1996) 46 Duke Law Journal 1
- Kenny v Hampshire Constabulary [1998] UKEAT
- Yin, Schaewitz and Megra, An Uneven Playing Field: The Lack of Equal Pay for People With Disabilities (American Institutes for Research 2014)
- Sharon L Harman and Pamela M Robert, 'The Social Construction of Disability in Organisations: Why Employers Resist Reasonable Accommodation' (1998) 25 Work and Occupations 4
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