Tackling Disability Discrimination at Work: Towards a Systemic Approach

Abstract

Approaching disability discrimination in systemic terms is the most fundamental challenge that disability human rights law currently faces. Achieving fundamental change in relation to disability at work necessitates challenging able-bodied norms. To that end, a social construction of disability entails adapting the environment to meet the needs of those with a variety of disabilities. Tackling disability discrimination requires contesting what is deemed “normal” because it is the way most able-bodied persons function, necessitating a thorough understanding of adverse effects discrimination, which looks behind purportedly neutral practices to uncover detrimental effects on those who do not function “normally”.

The fact that some disabilities preclude some kinds of work should not be extended to create employment barriers beyond what is warranted, requiring stringent assessments of bona fide occupational requirements (“BFOR”). The duty to accommodate is now part of the BFOR defence. Accommodation is about making adjustments (exceptions) to rules. If the rule is wholly invalid, one does not reach the stage of adjustment, one simply invalidates the rule. The duty to accommodate in the BFOR test should be seen as subsidiary to the overarching concept of “reasonably necessary”. In moving to the duty to accommodate, it is still important to think in both systemic as well as individualized terms. A systemic approach to accommodation anticipates the need for individualized accommodation, and builds in the necessary flexibility from the outset. Examples of innocent absenteeism are used to elaborate on the notion of systemic accommodation. In different settings, other recent examples blurring the distinction between the prima facie case of discrimination and the BFOR are problematic because such blurring weakens the scrutiny of respondents’ justificatory arguments.

Full integration of disabled workers largely depends on the extent to which systemic approaches to disability discrimination can be incorporated into anti-discrimination law.

Keywords: disabilities, employment, discrimination, bona fide occupational requirements, BFOR, accomodation, duty to accommodate, work