Accommodating All? (Or: ‘Ask Not What You Can Do for the Labour Market; Ask What the Labour Market Can Do for You’)
93 Bulletin of Comparative Labour Relations 191 (2016)
30 Pages Posted: 22 May 2016
Date Written: May 1, 2016
This is a chapter in a volume on "Reasonable Accommodation in the Modern Workplace", edited by Roger Blanpain and Frank Hendrickx (chapter 12).
The goal of this chapter is to consider – and justify – the expansion of the duty to accommodate in labour law. Section §12.02 explains the two basic parameters setting the breadth of the duty. One question is whether it takes the form of concrete duties in legislation (e.g., an employer must grant maternity leave after an employee gives birth) or rather includes also an open-ended general duty to do whatever can reasonably be done to accommodate. The other question is whether the duty applies to a specific group of people that are especially vulnerable or rather to many different groups of people, or even (ultimately) every employee. Otherwise put, do employers have to accommodate every special need, or just specific needs such as those of workers with disabilities? Section §12.03 argues that there is a gradual change (as a descriptive matter) towards expansion on both fronts: more open-ended duties and more reasons for accommodation (or: more groups of people possessing a right to enjoy accommodation). We draw on Israeli developments for the purpose of stylizing this process of change, but also give some examples from other countries. Section §12.04 justifies this development and calls for further expansion towards a universal duty to accommodate. We argue that such a change goes beyond the context of equality and reaches into the fundamental structure of the employment contract, deeply affecting the primacy of the managerial prerogative. Section §12.05 addresses some possible critiques.
Keywords: labour law, labor law, employment law, accommodation, duty to accommodate, equality, managerial progrogative
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