Training Outline

3.4 Standard Lecture: Reasonable Accommodation (1 hour, 30 minutes)

• Begin this subsection by asking participants to share from their own experiences objects, supports, technologies, or people that make life or their jobs easier for them. Record their responses on flipchart paper.

  Explain to participants that disability can sometimes affect an individual’s ability to carry out a job in the usual or accustomed way. The obligation to make a reasonable or effective accommodation, or the right to be accommodated, is often found in modern disability non-discrimination law. Disability non-discrimination legislation increasingly requires employers and others to take account of an individual’s disability and to make efforts to cater for the needs of a disabled worker or job applicant, and to overcome the barriers erected by the physical and social environment. This obligation is known as the requirement to make a reasonable accommodation, otherwise referred to as a reasonable adjustment or an effective accommodation/adjustment. The failure to provide a reasonable accommodation to workers and job applicants who face obstacles in the labour market, is not merely a bad employment practice, but is increasingly perceived as an unacceptable form of employment discrimination. The law should define closely what is meant by reasonable accommodation, so that misinterpretation is avoided and employers clearly understand what they must do.

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  OPTIONAL EXERCISE (60 minutes): Explain to participants that the way reasonable accommodation has been described has been to reference people with disabilities, but “accommodations” are allowed for employees without disabilities as well. Have participants work in small groups of 3 to 5 participants, designate a reporter and recorder. Referencing Transparency 51, ask groups to prepare to answer the following questions, discuss and be prepared to present to the rest of the group. Allow 30 minutes for small group activity and 30 minutes for debriefing as a large group.

  “Describe a time when accommodations were effectively implemented either at your workplace or at a place known to you.”

  • What were the “reasonable accommodations”?
  • How were they implemented?
  • Who was involved in the process?
  • What about accommodations for employees without disabilities –what would they be and are they provided in your place of employment?
  • What about an occasion when they weren’t effectively implemented… what could have been done better?
• Using Transparency 52, describe that reasonable accommodation is defined as modification or adaptation of a job, employment practice, or work environment that makes it possible for a qualified person with a disability to apply for a job, perform an essential function of the job, or access a benefit of employment. Use Transparency 53 to highlight some examples that may parallel the responses participants gave to the first question. Reasonable accommodation may include an adjusted office chair (for a person with a back impairment), adapted working hours (e.g. for a person with a medical condition requiring frequent rest-breaks), a computer keyboard with a Braille reader (for a blind person, and the assignment of a job coach (e.g. for a person with an intellectual or mental health disability).

• Highlight the obligation to make a reasonable accommodation as it is contained in the Americans with Disabilities Act using Transparency 54.

  In the United States of America, the obligation to make a reasonable accommodation is understood to mean any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities. There are three categories of “reasonable accommodations”: changes to a job application/interview process; changes to the work environment or the way a job is typically done; and changes that enable an employee with a disability to enjoy equal benefits and privileges of employment, such as access to training.

  Explain that in other countries like Australia, New Zealand and South Africa, there are legal provisions stipulating that the failure to provide a reasonable accommodation constitutes a form of discrimination. They differ slightly from the United States in that in Australia the law requires “removal of unreasonable requirements which disadvantage people with a disability”; in New Zealand that “it is always the duty of the employer to take reasonable measures to ensure the equal treatment of all employees regardless of disability; and in South Africa that “affirmative action measures implemented by a designated employer must include [...] making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer”.

• Emphasize that the provision of a reasonable accommodation is an individualized measure that does not need to be temporary in nature - in fact often they are for the duration of a person’s employment. Using Transparency 55, explain that reasonable accommodation is not affirmative action. Affirmative action is action aimed toward favorable or preferable treatment toward a larger group or population.

  An example of affirmative action would be if a company, realizing that their workforce was almost completely white males, decided actively to recruit women and racial minorities and set a goal for a certain percentage of the new employees to be from the under-represented groups. Similarly, a company might decide that their workforce should be more representative of the general population and therefore, it would actively recruit people with disabilities. Alternatively, a complaint filed under affirmative action laws might be brought by a group of women who allege that the company they worked for routinely chose males for promotions to managerial positions. Such a complaint or lawsuit that is filed on behalf of a whole group of employees is called a class action suit.

• Explain that reasonable accommodation is an individualized and customized process based on the support needs that exist for the individual to conduct his/her job effectively. Explain that in the example mentioned above where the company engages in affirmative action to hire employees with disabilities, one or more of these people might need a reasonable accommodation in order to perform the duties of his or her job. For example, the company might normally have rules that prohibit animals in their building. However, if one of the new employees uses an assist dog and asks that the prohibition be waived so the companion dog was allowed, the company would need to make that reasonable accommodation. The duty to provide a reasonable accommodation should not be confused with the duty to comply with general accessibility and occupational health and safety standards.
• Using Transparency 56, explain to participants that an applicant or worker with a disability requesting a reasonable accommodation needs to demonstrate three things: 1. The person is (otherwise) qualified for the job; 2. The employer (or other party) was aware of the person’s needs; and, 3. With an accommodation, the person could (safely) perform the essential functions of that particular job.
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  OPTIONAL EXERCISE (1 hour 15 minutes): Have participants break up into small groups of 3-5 individuals. Assign each group a case study provided in Appendix D. Have each small group designate a reporter and recorder. Ask groups to prepare to answer the questions provided in the case study, discuss and be prepared to present to the rest of the group. Provide groups 45 minutes to work the case studies and 30 minutes to debrief as a larger group.

• Follow-up using Transparency 57 to illustrate the three conditions under which an employer could be exempted from providing a reasonable accommodation. This includes that he/she was not aware of the need for an individual accommodation. For example, a worker who suffers from depression, but who failed to tell his employer, then has a breakdown requiring several months hospitalization and asks the employer for an accommodation by holding his job during his absence; or, an effective accommodation, enabling the applicant or worker with a disability to perform the essential functions of a job is not available. For example, an engineer whose primary job involves doing computer-assisted design (CAD) becomes blind as a result of diabetes. He asks the employer for an accommodation, but the employer cannot comply because the worker can no longer do the primary functions of his job and that is the only kind of work the company does, or the requested accommodation imposes a ‘disproportionate burden’ on the employer Transparency 58. In this last situation, an example would be if, because of an accident, a worker now uses a wheelchair and his employer is in a building that does not have an elevator. It might prove a disproportionate burden to expect the employer to move his facility or install an elevator.

  Explain that the ‘defense’ or ‘justification’ for not accommodating a person with a disability needs to be drafted carefully. Otherwise, unscrupulous employers would have recourse to this in order to avoid any obligation. In practice, the question as to what constitutes a disproportionate burden may very much depend on the context of the case concerned, and is not merely dependent on the financial costs of an accommodation or financial compensation scheme. It depends on such factors as its practical implications, effects on the overall work process, number of disabled workers already employed and length of the envisaged employment contract.