Lesson 1, Topic 1
In Progress

2 Legislative Framework

ryanrori October 11, 2020

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People with disabilities in South Africa and throughout the world are demanding and exercising their human rights. Central to their struggle is the need to overcome the handicapping conditions of society and the environment. Increasingly, this development is linked with a basic appreciation of the fact that disability is a routine and normal part of the human experience. South Africa’s Constitution and employment legislation reflect this principle.

Disability employment is nothing more than a special application of the provisions of employment equity directed towards one of the specifically designated groups of persons in terms of the Employment Equity Act, 55 of 1998 as amended.

Legislation impacting upon the employment of the person with a disability needs to be seen from two perspectives:

  • Legislation that protects and guarantees the rights of all persons, including people with disabilities, since it pertains to all individuals and “protected” groups designated in the Bill of Rights in the South African Constitution. There is also related general legislation specifically promulgated to address people with disabilities.
  • Workplace legislation is aimed at ensuring employment equity, of which people with disabilities is a specifically mentioned group in terms of this legislation and are entitled to the “positive discrimination” benefits that the EEA affords.

 

Employees with disabilities are subject to all employment statutes governing all of the general conditions of employment.

The interrelationship between the legislation and codes as they relate to the employment of people with disabilities is illustrated graphically below.

Legislation pertaining to the employment of people with disabilities is a subset of the specialised employment legislation covered by the EEA, which in turn, falls within the domain of the Labour Relations Act, 66 of 1995 as amended and the Basic Conditions of Employment Act, 75 of 1997. The Constitution of South Africa, 108 of 1996 is the overarching legislation that covers all of the above.

Managers are often overwhelmed by reasonable accommodation issues. Many of the requirements are safety issues, of which people without disabilities are unaware. The lack of guardrails, for example, presents a severe threat to the blind. Because sighted people naturally steer themselves around these obstacles, they are not necessarily aware of the risks.

It is only when the employer addresses these issues that they become aware of the safety hazards within the workplace. A quick review of standard safety procedures such as fire evacuation, lift operating procedures, door sensors and warning of glass doors will confirm that these requirements are not onerous.

1 The Constitution of the Republic of South Africa, 108 of 1996

The Constitution promotes and protects human rights and dignity as its guiding principle. It was conceptualised to be restorative and seeks to heal the nation from previous wrongs. It is in this restorative outlook that it provides for affirmative action that is required to restore the rights and place in society of people and groups whom, previously, were victims of discrimination and injustice. It is against such injustices and discrimination, that the Bill of Rights protects people with disabilities as one of the designated protected groups. This is evident in the preamble of the Constitution as well as in terms of Chapter 2, Section 9 and Section 23.

2 Promotion of Equality & Prevention of Unfair Discrimination Act, 4 of 2000

Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, identifies unfair practices such as creating artificial barriers to employment opportunities or applying human resource practices which unfairly discriminate against persons from identified groups on prohibited grounds. These groups include race, gender, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, work or any other grounds for discrimination based on causes that perpetuate systemic disadvantages, undermines human dignity or adversely affects the equal enjoyment of rights and freedoms. It also applies to failing to respect the principle of equal pay for equal work.

The right to equality in the workplace is also protected in PEPUDA and enacted through national legislation to give full effect to the right of equality in the Constitution. It is not solely confined to the workplace, however. While PEPUDA does not apply to those conditions that are covered by the EEA it does contain an illustrative schedule of unfair practices that may be deemed to be unfair and include areas, such as:

  • Labour and employment
  • Education
  • Health care services and benefits
  • Housing, accommodation, land and property
  • Insurance services
  • Pensions
  • Partnerships
  • Professional bodies
  • Provision of goods, services and facilities
  • Clubs, sports and associations

 

3 Other Legislation

Besides the legislation that addresses and deals with disability objectives in South Africa and the required employment of people with disabilities, other legislation has practical implications of which an employer needs to be aware:

  • Non-compliance can be avoided if attention is paid to the specific relevant components of legislation.
  • The employer also needs to avoid discriminating against people with disabilities. Failure to comply with requirements may result in a dispute being taken to the Commission for Conciliation, Mediation and Arbitration (CCMA), Labour Court or Equity Court. The employer must realise that poor corporate citizenship will result in a poor public image and reputation for the organisation.
  • A loss of valuable benefits can be avoided if the organisation puts in place proper plans to claim the financial incentives for practices, which the company is entitled to claim.
  • Not achieving the required B-BBEE and sector charter targets will put the organisation under compliance pressures. This can be avoided once again by proper planning.

 

Skills development legislation recognises people with disabilities as candidates for skills and workplace advancement in terms of the incentives available. Also, provisions of the Compensation for Occupational Injury and Diseases Act, 130 of 1993 have recognised a set of scheduled diseases for which compensation is entitled. These include a set of “mental impairments”, such as Post Traumatic Stress Disorder (PTSD) and some Affective Disorders such as psychological illnesses with a disability status within the work context which can require “reasonable accommodation measures”.

The Occupational Health and Safety Act, 85 of 1993 also provides for the safety of employees within the workplace. These conditions are equally applicable to people with disabilities. Thus, any condition of safety, which is only applicable to the non-disabled, and excludes the necessary provisions for people with disabilities, can be considered discriminatory and providing insufficient safety provision for a select category of employees. Provisions should first consider the health and safety requirements of all employees before any exclusion of people with disabilities are considered. Minimum standards established by OHSA pertain to all employees and not only certain groups of employees. Thus, if a person with a disability trips over a “raised tile, uneven step, etc.”, clemency cannot be sought because the person was “blind” and could not see properly. Basic safety and procedures are applicable to all employees and not only those with certain qualities or abilities, such as sight or hearing.

4 Special Workplace Legislation Applicable To People With Disabilities

All employment legislation is applicable to the employment of people with disabilities. Law and statute have both a “spirit” and a “letter” to it. When it comes to employment legislation of people with disabilities, since they form part of the “protected and previously disadvantaged” groups that are designated as needing equity protection, it is important not to address issues in terms of the letter of the law, but to rather understand the “spirit” of the law and why it was enacted in the first place. If the latter is borne in mind, the employer is unlikely to fall foul of the law and will enjoy the many benefits associated with the active employment of people with disabilities. The EEA is a key piece of legislation and provides some key principles underpinning the legislation.

The spirit of the legislation as it relates to disability encompasses the following:

  • Recognise past and current discrimination experienced by people with disabilities.
  • Avoid discrimination from occurring in future.
  • Create an inclusive society where diversity is valued.
  • Make provision for positive discrimination in favour of people with disabilities.
  • Recognise the rights of people with disabilities as a human rights issue rather than a welfare issue.
  • Provide people with disabilities with the basis on which to declare disputes relating to unfair work practices.

 

Employment legislation that safeguards the employment of people with disabilities is a fundamental component of employment equity. Thus, to understand the employment requirements of persons with a disability, one must understand the EEA.

5 The Employment Equity Act, 55 of 1998 As Amended

The legislation seeks to:

  • Protect employees and job applicants from direct or indirect unfair discrimination and the inclusion of arbitrary grounds for employment policies and practices, including race, religion, gender, age, HIV status and language. Harassment is also included in the list contained in the EEA.
  • Positive “discrimination” aimed at addressing the discrimination and employment imbalances of the past. The legislation gives rise to the employment equity targets and requirements on employers for the development of Employment Equity Plans (EEP). “Disability targets” form part of these plans.

 

The EEA seeks to eradicate all forms of discrimination. It protects people who have been historically discriminated against in the workplace from unfair discrimination practices. It also instructs employers to implement affirmative action measures to redress discrimination practices. The EEA recognises black people, women and people with disabilities as those groups of people who have been historically discriminated against, and thus the recipients of the non-discrimination and affirmative action measures prescribed.

Section 6(1) of the EEA provides that no person may unfairly discriminate, directly or indirectly, against an employee in any employment policy or practice, on one or more grounds, including disability. The complainant of discrimination in the employment context will usually be an employee or job applicant, as an “employee” for the purpose of the abovementioned section also includes an applicant for employment. A worker other than an employee or applicant for employment may bring a claim for unfair discrimination in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000.

Section 6(2) of the EEA states that it is not unfair discrimination to take affirmative action measures consistent with the purpose of the EEA, or to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job.

Section 11 of the EEA provides that, whenever unfair discrimination is alleged in terms of the EEA, the employer against whom the allegation is made must establish that the discrimination is fair.

The EEA is a statute that was enacted in terms of section 9(4) of the Constitution which provides, amongst others, that national legislation must be enacted to prevent or prohibit unfair discrimination. The purpose of the EEA is to achieve equity in the workplace. One of the means by which this purpose is to be accomplished, is by eradicating unfair discrimination so as to promote equal opportunity and fair treatment in employment.

The prohibition of unfair discrimination in terms of the EEA applies to all employers and employees. Every employer must take reasonable steps to promote equal opportunity in the workplace by eliminating unfair discrimination in any practice or form it may exist.

Section 3 of the EEA states that the EEA must be interpreted in compliance with the Constitution, to give effect to its purpose, taking into account any relevant code of good practice that is issued in terms of the EEA (including The Code of Good Practice: Key Aspects on the Employment of People with Disabilities) or any other employment law, and in compliance with the international law obligations of the Republic of South Africa, in particular those contained in ILO Discrimination (Employment and Occupation) Convention 111 of 1958.

It is not expected from employers to employ people that cannot perform the tasks or duties of a specific position or to retain employees that are unable to meet set performance standard, required for the specific job merely because the person is disabled. It is submitted that any appointment or retention should be based on merit, or at least based on the fact that a person with a disability is capable of being trained and developed to adequately perform the tasks of the specified job. If an applicant with a disability is suitably qualified, an employer may make a job offer conditional on medical or functional testing to determine an applicant’s actual or potential ability to perform the essential functions of a specific job.

6 The Code of Good Practice on the Employment of People with Disabilities

The Disability Code is issued in terms of section 54(1)(a) of the Employment Equity Act, No. 55 of 1998, that is based on section 9(3) of the Constitution Act, No.108 of 1996.

According to the Constitution, the State (or any other employer) may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

The Disability Code is not an authoritative summary of the law, nor does it create additional rights and obligations. Failure to observe the Code does not by itself render a person liable in any proceedings. Nevertheless, when the Courts and tribunals interpret and apply the EEA, they must consider it. The Disability Code should be read in conjunction with other relevant Codes of Good Practice issued by the Minister of Labour.

The Disability Code is intentionally general because every person and situation is unique and departures from the guidelines in the Disability Code may be justified in appropriate circumstances. Employers, employees and their organisations should use the Code to develop, implement and refine disability equity policies and programmes to suit the needs of their own workplaces. The Disability Code was formally gazetted on 19 August 2002, which means, after that date, Courts and tribunals must consider the Code when interpreting and applying the Act. It was redrafted in 2015 with necessary amendments.

7  The Technical Assistance Guidelines on the Employment of People with Disabilities

The Technical Assistance Guidelines on the Employment of People with Disabilities should be read and used in conjunction with the EEA, the Disability Code, other Codes of Good Practice and other TAGs that have been issued by the Minister of Labour, as well as other related labour legislation and policies. The TAG is intended to be used as a practical guide to provide information and advice for employers, employees, trade unions and employees with disabilities in understanding and implementing the EEA and the Disability Code

8 Rights Of People With Disabilities

In terms of the various pieces of legislation, codes of practices and regulations all disabled people in South Africa have the right to employment in the open labour market and appropriate measures, such as quota systems and training programmes, shall be implemented by government and employers to ensure that opportunities are created in the workplace which allow for the full enjoyment of this right. Accordingly,

the State shall provide incentives to employers, such as tax concessions, to encourage them to employ disabled people. State assistance shall be provided to disabled people to encourage them to engage in income generation through workshops and self-help projects.

It is necessary that the benefits and rights of people with disabilities in the workplace should be accurately identified from relevant legislation, agreed codes of good practice and specified documentation regarding the employment of people with disabilities. This will not only focus on Employment Legislation, but also legislation in terms of Skills Development and Broad Based Black Economical Empowerment legislation to ensure that both the employer and the employee has a clear understanding of the associated rights.

9 Reasonable Accommodation For People With Disabilities

All designated employers under the EEA and Disability Code, should reasonably accommodate the needs of people with disabilities. This is both a non-discrimination and an affirmative action requirement. For employers who are required to develop employment equity plans, reasonable accommodation is an effective affirmative action measure. The aim of this accommodation is to reduce the impact of the impairment on the person’s capacity to perform the essential functions of the job.

Accommodation, which are modifications or alterations to the way a job is normally performed, should make it possible for a suitably qualified person with a disability to perform as everyone else. The type of reasonable accommodation required would depend on the job and its essential functions, the work environment and the person’s specific impairment.

 

Reasonable accommodation measures may include:

  • Assistance in making the workplace more accessible on the kind of person’s limitations and needs – for example, amongst others, removal of physical barriers and access to information and technology (equipment and software).
  • Workstation modifications.
  • Adjustment to work schedules.
  • Adjustment to the nature and duration of the duties of the employee at work, either on a temporary or permanent basis.
  • The reallocation of non-essential job tasks and any other modifications to the way the work is normally performed or has been performed in the past.

 

Criteria for reasonable accommodation – The criteria for reasonable accommodation includes three interrelated factors:

  • First, the accommodation must remove the barriers to performing the job for a person who is otherwise qualified. The employer must take steps, wherever reasonably practicable, to mitigate the effect of an individual’s disability to enable him/her to play a full part in the workplace in order to achieve his/her full potential.
  • Secondly, it must allow the person with a disability to enjoy equal access to the benefits and opportunities of employment. All staff must have equal rights to promotion. The employer must take all reasonable steps to ensure that the working environment does not prevent people with disabilities from accessing or retaining positions for which they are suitably qualified.
  • Thirdly, employers can adopt the most cost-effective means consistent with the above two criteria.

If the individual cannot perform the essential job functions with reasonable accommodation, the employer need not employ the person. The employer need not create a new job for the person with the disability, nor must the employer reallocate essential functions to another employee. An employer may be required to restructure a job by reallocating non-essential, marginal job functions, but only if the applicant or employee with a disability can perform the essential functions of the job, with or without reasonable accommodation.

 

Reasonable accommodation that apply to applicants and employees throughout the period of employment – The issue of reasonable accommodation starts before the person with a disability is employed and continues throughout the employment process. The following are important stages through which reasonable accommodation measures should be considered.

 

  • Job profiling – An employer should analyse the job functions to determine the inherent requirements, basic qualifications and competencies required to perform essential functions. Job specifications must be drafted to ensure that they do not unnecessarily exclude people with disabilities. As people with disabilities, either individually or as a group, express their needs for modifications and adjustments, the employer should consider the kinds of accommodation proposed to ensure that performance standards will be met.
  • Job advertisements and applications – Information about vacancies must be made available in an appropriate format. This may include the use of Braille, tapes, large print or appropriate language. Application forms should focus only on asking how an applicant is qualified to perform the essential functions of the job.
  • Interview process – Shortlisted applicants with disabilities must be guaranteed an interview at a location, which will be fully accessible. When individuals are invited to come in for interviews, they must be provided with the opportunity to voluntarily disclose their requirements for accommodation during the interview and/or employment. Since the employer may not know if the short-listed candidate has any accommodation requirements for the interview, creating an opportunity for voluntary disclosure of such needs should be something that is afforded to all potential interviewees. Applicants with self-evident or disclosed disabilities must be given the opportunity to provide, in advance, information on their requirements during the interview.
  • Assessments or skills testing – Medical and psychological testing and other similar assessments should be free of bias and should not be discriminatory. If the assessment of certain skills is imperative, accommodation must be made for applicants with disabilities.
  • Placement and workplace diversity – Staff of an organisation must be sensitised and made aware of diversity in the workplace. The following are examples of situations that employers might be confronted with and the solutions that might be implemented based on actual South African employment workplace experiences.
  • Training and career advancement – Employees with disabilities should be consulted in order to ensure input specific to their career advancement. In terms of the career of a person with a disability, determination should be made on where the person with a disability is presently; where the person wants to be; and the career path to be followed to get there. Appropriate interventions, training or any other, should be identified and a plan of action developed and implemented. Training, including materials, facilities, work organisation and recreation should be accessible to people with disabilities. For example, where reasonably possible, voice synthesis should be a pre-requisite for any computer training involving totally blind persons; venues of workshops and seminars should have accessible toilets for people on wheelchairs; and lectures should have a sign language interpreter, or alternatively, presentations should also be captured visually if deaf persons are involved.
  • Retention – The employer is required to ensure through rehabilitation, training or any other appropriate measure the retention of existing staff with disabilities. Where an existing employee becomes disabled, the employer must ensure that the employee remains in her/his job before considering alternatives, for example, re-deployment. Based on operational requirements, the employer must give objective consideration to requests from employees with disabilities for reduced, part-time or alternative duties. Where an existing employee becomes disabled, the employer should maintain contact with the employee and, where reasonable, encourage early return to work. This may require vocational rehabilitation, adjustment to work arrangements, transitional work programmes and, where appropriate, temporary or permanent flexible working times.
  • Health and safety – According to the Occupational Health and Safety Act, 85 of 1993, the employer is obligated to provide and maintain a working environment that is safe to all employees. As part of any ongoing health and safety audit, the needs of employees with disabilities must be included. Evacuation procedures should take into account any specific or additional measures to ensure that an employee with a disability is safely evacuated from a building or work site during emergencies.
  • Working environment – The employer must take all reasonable steps to ensure that the working environment does not prevent people with disabilities from accessing or retaining positions for which they are suitably qualified. The employee with the disability must be consulted on any proposed changes to the working environment. For example, in the case of an employee who is blind or visually impaired, the employer must ensure that the employee receives orientation training related to any change in the environment. The employer must encourage the participation of employees with disabilities to ensure that, wherever possible, employment practices recognise and meet their needs. When the employer buys new buildings, reasonable effort should be made to provide for the needs of people with disabilities. Unless it creates unjustifiable hardship to the employer, the employer must install facilities for people with disabilities in existing premises.
  • Performance management and rewarding of performance – Systems and practices to evaluate work performance should clearly identify, fairly measure and reward performance of the essential functions of the job. Work that falls outside the essential functions of the job should not be evaluated. Therefore, key performance or measurable output indicators should be identified between the employer and employees with a disability prior to the job taking place. Assessment of performance should be done only on key performance areas or output indicators that were initially identified. Additional areas must be assessed only if agreed upon by both parties. Assessment of performance should give an indication of the performance gaps that may exist; help identify the appropriate intervention measures to close these gaps; and establish the appropriate reward or recognition for actual performance. Any performance processes involving interventions or reward or recognition, must not unfairly discriminate on the basis of disability. In many instances, employees are rewarded on criteria such as efficiency, which is often limited to perceptions of “getting a job done as quickly as possible”. Efficiency and other criteria used to evaluate performance should be developed from a holistic perspective where attention is given, among others, to objective performance standards, effectiveness and quality of output.

The obligation to make reasonable accommodation available may arise when an applicant or employee voluntarily discloses a disability related accommodation need or when such a need is reasonably self-evident to the employer.

Applicants with disabilities must be given the opportunity to voluntarily disclose their accommodation requirements during recruitment, interviewing and any subsequent phase of employment. Where it is self-evident during the interview and selection process that an applicant or employee requires accommodation (e.g. ramps into the building), the employer should enquire and reasonably respond to such requests.

Detailed request for information on their requirements, however, can only be sought after a decision has been taken that they are suitably qualified for the job and a conditional job offer has been made. If reasonable accommodation is discussed before the job offer is made and in any other detail, it may be difficult to prove that there was no discrimination on the basis of disability. More specifically, if an employer discusses with a potential employee her/his accommodation requirements before a conditional offer is made and the offer is then withdrawn, the withdrawal may be seen to relate to the employer’s possible reluctance to provide reasonable accommodation. The Courts could regard such reluctance as discrimination on the basis of the person’s disability.

 

Following are examples of appropriate requests for reasonable accommodation based on objective facts:

  • An employee tells her supervisor “I’m having trouble getting to work at my scheduled starting time because I’m having trouble walking from the train station to my office on crutches.”
  • An employee tells his supervisor “I need a Sign Language interpreter to communicate with my colleagues
  • during business meetings.”
  • An employee tells her supervisor, “As a result of my emotional issues in the past, I have learned from working with my mental health therapist to inform you that I cannot handle stressful and confrontational situations.”
  • An employee tells his supervisor, “As a result of Retinitis Pigmentosa, my sight is deteriorating. I cannot read written material even with a magnifying glass.”

 

Reasonable accommodation obligation when changes to work, environment or the impairment occur – Following are two examples of such situations –

  • When the employee tells her supervisor, ” I now have only the use of my left arm since my condition is deteriorating, so I am having difficulty typing huge volumes of documents for that new project.”
  • The employee who uses a wheelchair tells his supervisor, ” Someone has blocked the only accessible entrance to my office.”

 

The employer should consult the employee and, where reasonable and practical, technical experts to establish appropriate mechanisms to accommodate the employee.

Accommodation requirements should be identified and developed through a process that involves the individual employee with a disability and the employer. This process should focus on establishing the particular accommodation that is required for the individual employee to effectively perform the work for which the individual was employed – i.e. accommodation required to perform the inherent requirements of the job. In this way, reasonable accommodation is most effectively identified as employees with disabilities often have the most knowledge of their requirements.

However, additional technical expertise may be required, especially if the job situation includes aspects that are unfamiliar to the person with the disability. In such instances, it is very important that the technical expert develop recommendations in consultation with the employee with a disability and the employer. This will ensure that the solutions developed and the accommodation that is made is acceptable and supportive to both the employee and the employer.

Each individual’s impairment, degree and nature of impairment, requirements and choice of accommodation will vary. In addition, the job, the nature of the job and the working environment at each workplace will also vary. As a result, accommodation that is made should be conducive to conditions that positively impact on both the employer and the employee with the disability.

Each individual’s impairment, degree and nature of impairment, requirements and choice of accommodation will vary. In addition, the job, the nature of the job and the working environment at each workplace will also vary. As a result, accommodation that is made should be conducive to conditions that positively impact on both the employer and the employee with the disability.

The Code provides a list of representative but not exhaustive examples of reasonable accommodation. When reading this list, bear in mind that any reasonable accommodation must meet certain criteria (e.g. removal of barriers, accessibility and cost effectiveness) and should not constitute an unjustifiable hardship. These include but are not limited to:

  • Adapting existing facilities to make them accessible, e.g., building a ramp to ensure wheelchair access and making toilets accessible.
  • Adapting existing or acquiring new equipment, e.g. computer hardware and software, including voice input/output software for persons with sensory impairments.
  • Re-organising workstations to ensure that people with disabilities can work effectively and efficiently.
  • Changing training and assessment materials, processes and systems, e.g. providing training materials on request in electronic format, Braille or on tape for people with visual disabilities; identifying and hiring venues that are accessible to people with disabilities for training sessions that are held outside the organisation.
  • Restructuring jobs so that non-essential functions are re-assigned; e.g. taking routine but physically demanding filing tasks if they are non-essential from the duties of a person who uses a wheelchair and reassigning them on a rotational basis among other employees.
  • Adjusting working time and leave; e.g. in cases of cyclical, but non-predictable impairments such as progressive health conditions (HIV/AIDS, cancer) and emotional disabilities.
  • Providing specialised supervision, training and support in the workplace, e.g., interpreters for the deaf, readers for the blind, job coaches for people with intellectual disabilities or personal assistants for people with physical disabilities. Depending on the requirements of the individual, support might be temporary or permanent.

Employees with disabilities should only be measured on essential job functions. The employee cannot be penalised for low performance on non-essential job functions. The nature of the impairment and disability may require an employer to adapt the way performance is measured.

The employer need not accommodate a qualified applicant or an employee with a disability if this would impose an unjustifiable hardship on the business of the employer. After setting aside detailed inquiries related to any specific accommodation, their effectiveness and costs, and making a conditional job offer, the employer may conclude after an objective assessment that the accommodation creates an unjustifiable hardship on the business. This is a higher standard than in some other countries, where the phrase undue hardship is used, because in the case for South Africa where there has been so little employment and accommodation for people with disabilities, the Disability Code encourages employers to make more effort to reduce and eliminate discrimination and/or promote affirmative action.

Unjustifiable hardship’ is action that requires significant or considerable difficulty or expense. This involves considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business. Using unjustifiable hardship as a reason not to provide a specific accommodation must involve an objective process. On the one hand, this may involve identifying and determining the effectiveness of the accommodation and, on the other, whether the implementation of such accommodation will create difficulty or expense that will seriously disrupt the operation of the business. The assessment should also take into account the impact of providing or failure to provide accommodation to the employee and the systemic patterns of inequality in society. The objectives of the EEA and the Constitution should also be considered.

An accommodation that imposes an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time. Disabilities or impairments, jobs, equipment and technology and work design are dynamic in nature, i.e. they are changing all the time. As a result, accommodation also has to become dynamic in nature in order to suite the requirements of a person with a disability at any given point in time. Both employers and employees with disabilities must continuously monitor developments and, where relevant, make appropriate adjustments and arrangements necessary to maintain and improve performance. Therefore, an unjustifiable hardship in one organisation may not apply to another or, an unjustifiable hardship that was identified previously should not influence current or future reasonable accommodation decisions.

The following examples are indicative of some employers’ lack of information or knowledge about how to appropriately respond to accommodation requirements that may constitute discrimination under the EEA:

  • A large commercial bank refused to promote a switchboard operator who is blind because he needs a voice–output software package to access clients’ information electronically.
  • An organisation refused to employ a highly skilled information systems specialist because he cannot do the filing due to a physical impairment.
  • A large financial concern refused to employ a receptionist with motor co-ordination impairment because she walks too slowly when she meets clients.
  • A large retailer refused to employ a client service consultant with cerebral palsy because it is degenerative and they fear that the individual might have a high absenteeism rate.
  • A national garden refused to employ a receptionist who has a physical disability because the premises was not connected to major transport routes and they feared that the person would have a problem with punctuality.

Employers should:

  • Become familiar with reasonable accommodation and how it can assist both the employee and employer — this section truly summarises what an employer must be prepared to consider doing in case someone is considered as having a disability under the EEA.
  • Use the criteria for reasonable accommodation either in policy or in your own decision-making — it must remove barriers for an individual with a disability, it must assure equal access and the employer may choose the more cost-effective option.
  • Prepare to respond to requests for reasonable accommodation at any time in an employee’s relationship with work – in selection, training, placement, through promotion and job changes, and changes in the environment, the impairment and the person him/herself. Experience from other countries shows that the most common initial source of requests for reasonable accommodation will come from existing employees – be prepared to listen to and respond to those requests. This is actually an opportunity for employers to openly engage in the process – with employees they already know.
  • Treat the person with a disability as a primary partner in the process of selecting reasonable accommodation — and only consult with experts when needed, but make sure that the experts are familiar with best practices in equity based disability employment.
  • Performance evaluation needs to be conducted without respect to the reasonable accommodation that may be required. A person’s performance must be evaluated on how they perform the essential functions of a job, not non-essential functions.
  • A reasonable accommodation is also one that does not create an unjustifiable hardship for the employer.
  • Unjustifiable hardship is defined as an action that requires significant or considerable difficulty or expense. This involves considering, amongst others, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business. If an employer can make the case for an unjustifiable hardship, it cannot generalise that to other applicants/employees or workplaces. However, expense should not be used as a shield not to provide reasonable accommodation.

 

People with disabilities should:

  • Familiarise themselves with the term “Reasonable Accommodation”.
  • Be able to explain in their own words the type of accommodation they may require relating to their specific nature, degree and severity of their disability.
  • Take responsibility to ask for accommodation if they should require any.
  • Know that they have the right to ask for accommodation at any stage of the employment process.
  • Make the final decision about the type of accommodation they may require, but be responsible enough to know that it must be a “viable” option for both themselves and the employer.