Along came a spider...

6.1. Introduction

6.EC.1. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

6.1.1. The Duty to Make a Reasonable Accomodation—Theoretical Background

6.1.2. Reasonable Accomodation and The Non-Discrimination Requirement

6.1.3. Goals of This Chapter

6.2. The Meaning of The Term “Reasonable Accomodation”

6.2.1. The Meaning of The Term “Reasonable”

6.2.1.A. An Accomodation that does Not Result in Excessive Difficulties for The Employer

6.FI.2. Finnish Non-Discrimination Act 21/2004
6.FI.3. Extracts from the Preparatory Works to the Finnish
6.IE.4. Irish Equal Status Act 2000
6.IE.5. Irish Employment Equality Act 1998
6.IE.6. Labour Court, 23 January 2000, A Company (represented by the Irish Business and Employers’ Confederation) v A Worker (represented by Irish Municipal, Public and Civil Trade Union). failure to do all that is reasonable to accommodate an employee – failure to reassign tasks and provide parking space
6.IE.7. Equality Tribunal, 4 February 2002, An Employee (represented by IMPACT) v A Local Authority. Failure to do all that is reasonable to accommodate an employee – failure to follow expert advice
6.IE.8. Equality Tribunal, 1 August 2000, Mr John Roche v Alabaster Associates Limited t/a Madigans. refusal to allow access to a restaurant of a guide dog amounts to a failure to provide reasonable accommodation
6.BE.9. Belgian Act of 25 February 2003 to Combat Discrimination and to Amend the Act of 15 February 1993 to Establish a Centre for Equal Opportunity and to Combat Racism
6.BE.10. Belgian Guide to... Reasonable Accommodations for Persons with a Disability at Work, March 2005
6.DE.11. German Social Law Code, Book Nine, Rehabilitation and Participation of disabled persons
6.US.12. Americans with Disabilities Act
6.US.13. Equal Employment Opportunity Commission (EEOC), Regulations on the ADA
6.US.14. 7th Circuit 1995, 44 F 3d 538, Vande Zande v State of Wisconsin Department of Administration. No failure to make a reasonable accommodation not allowing an employee to work full time at home and by not adapting kitchen
6.US.15. Supreme Court of the United States, 2002 535 US 391, US Airways, Inc v Barnett. An accommodation which conflicts with a seniority rule will generally not be reasonable

6.2.1.B. An Accomodation that is Effective

6.NL.16. Dutch Act on Equal Treatment on the Grounds of Disability or Chronic Illness 2004
6.NL.17. Equal Treatment Commission, Opinion 2004-140. failure to provide accommodated exams at same price as ordinary exams amounted to discrimination
6.NL.18. Equal Treatment Commission, Opinion 2005-18. requirement to react in adequate and timely manner to request for an accommodation
6.IE.19. Irish Equality Act 2004
6.FR.20. French Labour Code
A Reasonable Accomodation With Regard to Religous Practices
6.US.21. The US Equal Employment Opportunity Commission

6.2.1.C. Both an Accomodation which does Not Result in Excessive Difficulties for The Employer and an “Effective Accomodation”

The Employment Equality Directive
6.EC.22. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation
Legislative Provisions in EU Member States Based on Article 5 of The Framework Directive
6.Lv23. Latvian Labour law, amended 7 May 2005
6.BE.24. Decree (Flemish Community), 8 May 2002 concerning balanced participation in the labour market
United Kingdom
6.UK.25. The Disability Discrimination Act 1995, as amended

6.2.1.D. Comparative Overview

6.2.2. The Meaning of The Term “Accomodation” and The Kinds of Accomodations that are Required

6.2.2.A. General Classifications of Accomodation

Employment -Related Accomodations —“Hard” and “Soft” Costs
6.US.26. MA Stein, The Law and Economics of Disability Accommodations
Stage Within The Employment Process
Characteristics of Beneficiaries

6.2.2.B. Terminology

6.2.2.C. The Qualities Required for any Accomodation

6.BE.27. Belgian Guide to... Reasonable Accommodations for Persons with a Disability at Work, March 2005
6.IE.28. Irish Employment Equality Act 1998-2004, Amended Section 16
6.SK.29. Slovakian Act No 29/1984 Coll. on the system of primary and secondary schools (the School Act) as amended
6.ES.30. Spanish Law 51/2003 For Equal Opportunities and Against the Discrimination of Disabled Persons

6.2.2.D. The Kinds of Accomodations which are Required

Statutory Provisions
United Kingdom
6.UK.31. The Disability Discrimination Act 1995 (as amended)
6.UK.32. The Disability Discrimination Act 1995 (as amended)
Ireland
6.IE.33. Irish Equal Status Act 2000
Guidelines Accompanying Legislation
United Kingdom
6.GB.34. Disability Discrimination Act 1995 – Code of Practice – Employment and Occupation
Belgium
6.BE.35. Belgian Guide to... Reasonable Accommodations for Persons with a Disability at Work, March 2005
Guidelines Related to Accomodating Religious Practices — US and UK
6.US.36. Code of Federal Regulations, Title 29, Volume 4, Part 1605, Guidelines on Discrimination because of Religion
6.GB.37. Advisory, Conciliation and Arbitration Service (ACAS), A Guide for Employers and Employees. religion or belief and the workplace
Examples From Case-Law - Transfer of Employee to Another Position
6.NL.38. Equal Treatment Commission, Opinion 2004-21. transfer to another position can be an effective accommodation
6.UK.39. House of Lords, Session 2003-04, Archibald v Fife. transfer to another position without requiring standard competitive interview can be a reasonable adjustment
6.IT.40. Court of Pistoia, Labour Section, 30 September 2005, Laura Neri v Ministry of Justice. failure to allow disabled employee to continue working near to a place of residence and to insist on transfer to another office can be a form of discrimination

6.2.2.E. Choice as to The Approriate Accomodation

6.DE.41. State Labour Court of Lower Saxony, 1 July 2003, Anonymous. right to reasonable accommodation/right to be employed in a way that allows a severely disabled employee to utilise and improve skills and knowledge to the full extent possible – variety of means of achieving this goal

6.2.2.F. Comparative Overview

6.3. Entitlement to Claim a Reasonable Accomodation and Obligations on Both Parties

6.3.1. The Generic Categories

6.3.1.A. People with Disabilities

6.3.1.B. Members of Religious Minorities and Individuals Wishing to Manifest Their Religion

6.BG.42. Bulgarian Protection against Discrimination Act (effective as of 1 January 2004)
6.ES.43. L Cachón, Report on measures to combat discrimination: Directive 2000/43/EC and 2000/78/EC. country report Spain. Spanish Cooperation Agreements
6.GB.44. Court of Appeal, 25 July 2005, Copsey v WBB Devon Clays Ltd. employers might be obliged to accommodate needs of religious employees in certain circumstances

6.3.1.C. Other Groups

6.FR.45. French Labour Code

6.3.2. Specific Requirements — People with Disabilities

6.3.2.A. Employment

Person with Disability Must be Qualified for The Job/Employment - Related Activities
Employment Equality Directive
6.EC.46. ECJ, 11 July 2006, Case C-13/05, Sonia Chacón Navas v Eurest Colectividades. discrimination occurs where an individual with a disability is dismissed where they would be competent, capable and available to perform the essential functions of the post following the making of a reasonable accommodation
Ireland
6.IE.47. Employment Equality Act 1998–2004
6.IE.48. Labour Court, ED/00/8 Determination No 013, 18 July 2001, A Computer Component Company v A Worker. employee with a disability not required to be able to carry out minor tasks related to function
The Netherlands
6.NL.49. Equal Treatment Commission, Opinion 2004-59. no obligation to make an accommodation where it is unclear that this would enable an individual to successfully complete exams
The Obligation on The Person with a Disability to Inform The Employer
United Kingdom
6.UK.50. Disability Discrimination Act 1995, as amended
The Netherlands
6.NL.51. Equal Treatment Commission, Opinion 2005-18. claimant is obliged to ensure employer or vocational trainer is aware of need for accommodation
Latvia
6.Lv52. Latvian Labour Law
The Obligation on The Employer to Consider and Identify a Reasonable Accomodation
United Kingdom
6.UK.53. Employment Appeals Tribunal, 6 June 2001, Casgrove v Caesar & Howie. obligation to consider whether any reasonable adjustments is possible lies with employer
Ireland
6.IE.54. Labour Court, ED/02/59 Determination No 037, 18 February 2003, A Health and Fitness Club v A Worker. employer is obliged to engage in a two stage enquiry process to establish whether an employee is capable of carrying out work and whether employee requires a reasonable accommodation

6.3.2.B. Services

Impossible or Unreasonably Difficult to Access Services
United Kingdom
6.UK.55. BJ Doyle, Disability Discrimination, Law and Practice
6.UK.56. C Gooding and C Casserley, Disability Discrimination Laws and Goods and Services
A Reactive Duty Owed to Individuals or an Anticipatory Duty Owed to The Group of People with Disabilities?
United Kingdom
6.GB.57. Code of Practice – Rights of access: services to public, public authority functions, private clubs and premises
6.UK.58. C Gooding and C Casserley, Disability Discrimination Laws and Goods and Services

6.3.3. Specific Requirements — Religion

6.3.3.A. An Individual may Need to Prove that They are of a Particular Faith

6.CoE.59. ECtHR, 13 April 2006, Kosteski v The Former Yugoslav Republic of Macedonia. an individual who claims a right to take a public holiday to celebrate a Muslim holiday can be required to provide evidence that he is a Muslim

6.3.4. Comparative Overview

6.4. Limitations on the Duty to Accomodate

6.4.1. Introduction and Exploration of The Issues

6.EC.60. ECJ, 11 July 2006, Case C-13/05, Sonia Chacón Navas v Eurest Colectividades. discrimination occurs where an individual with a disability is dismissed where they would be competent, capable and available to perform the essential functions of the post following the making of a reasonable accommodation
6.EC.61. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation

6.4.2. National Legislative Provisions

6.4.2.A. Financial Considerations

6.BG.62. Bulgarian Protection Against Discrimination Act (effective as of 1 January 2004)
6.BE.63. Belgian Guide to... Reasonable Accommodations for Persons with a Disability at Work, March 2005

6.4.2.B. Ireland — Financial Issues and the Impact of The Employment Equality Directive

6.IE.64. Supreme Court, 15 May 1997, In the matter of Article 26 of the Constitution and in the matter of the Employment Equality Bill, 1996. oligation to make an accommodation unless this amounted to undue hardship breached the right to carry on a business and earn a livelihood
6.IE.65. Irish Employment Equality Act 1998

6.4.2.C. Non-Financial Issues which Justify a Failure to make Accomodation

6.SK.66. Slovakian Act No 365/2004 Coll on Equal Treatment in Certain Areas and Protection against Discrimination, amending and supplementing certain other laws (Anti-Discrimination Act) of 20 May 2004
6.AT.67. Austrian Act on the Employment of People with Disabilities (effective as of 1 January 2006)

6.4.3. Comparative Overview

6.5. Fitting The Duty to Accomodate into The Non-Discrimination Framework

6.5.1. Failure to Make a Reasonable Accomodation as a Form of Direct Discrimination

6.SE.68. Swedish Prohibition of Discrimination in Working Life of People with Disability Act (1999:132)

6.5.2. Failure to Make a Reasonable Accomodation as a Form of Indirect Discrimination

6.SK.69. Slovakian Act No 365/2004 Coll on Equal Treatment in Certain Areas and Protection against Discrimination, amending and supplementing certain other laws (Anti-discrimination Act)

6.5.3. Failure to Make a Reasonable Accomodation as a Sui Generis Form of Discrimination

6.5.4. Failure to Elaborate on The Status of an Unjustified Failure to Make a Reasonable Accomodation

6.5.5. Comparative Overview

6.6. Reasonable Accomodation and Positive Action

6.6.1. Introduction and Exploration of The Issues

6.6.2. A Clear Separation of Reasonable Accomodation From Positive Action

6.UK.70. House of Lords, Session 2003-04, Archibald v Fife Council. reasonable adjustments can involve an element of more favourable treatment where this is needed in order to achieve equality
6.UK.71. P Hughes, Disability Discrimination and the Duty to Make Reasonable Adjustments: Recent Developments

6.6.3. Ambiguity or Confusion

6.6.4. Reasonable Accomodation as an Exception to the Principle of Equal Treatment

6.EE.72. Law of Republic of Estonia on Employment Contracts

6.6.5. Reasonable Accomodation Labelled as a Form of Positive Action

6.PT.73. Portuguese Labour Code

6.6.6. Comparative Overview

6.7. Comparative Analysis