Disability Equality in the Workplace: Making the World Differently Through Reasonable Accommodation
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Editor’s note: This blog post is an abridged version of Justin’s article published in Constitutional Court Review XIV.
The workplace is a crucial setting for promoting human rights, particularly the right to equality outlined in section 9 of the Constitution which is implemented through the Employment Equity Act 55 of 1998 (EEA).
However, human rights advancement depends on the quality and strength of the tools developed for this purpose. Regrettably, the majority of the Constitutional Court of South Africa (Court) in Damons endorsed a shallow conception of the duty to provide reasonable accommodation under the EEA to the disadvantage of persons with disabilities and the detriment of the Constitution’s transformative purpose.
Substantive equality and reasonable accommodation
Since its inception, the Constitutional Court has rejected a formal conception of equality based on identical treatment. The Court acknowledges that identical treatment that ignores pre-existing disadvantages can perpetuate rather than remedy inequality. Hence, it has embraced a substantive conception of equality which permits differential treatment aimed at achieving genuine, factual equality.
Thus, unlike its formal counterpart, substantive equality justifies tools like race-based affirmative action, not as exceptions to equality but as inherent thereto, in recognition that the achievement and promotion of equality cannot be achieved only through duties of restraint. Instead, positive steps must be taken to root out and remedy race-based exclusions and discrimination in the workplace.
Reasonable accommodation of persons with disabilities is another such tool. The UN Convention on the Rights of Persons with Disabilities (CRPD) defines reasonable accommodation as those modifications and adjustments necessary and appropriate ‘to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights…’, where the accommodations do not impose a disproportionate burden on the providers (Art 2). Under the CRPD, the failure to take reasonable accommodation is deemed a form of discrimination.
“…identical treatment that ignores pre-existing disadvantages can perpetuate rather than remedy inequality.”
Reasonable accommodation is, therefore, a subtle but substantial addition to equality’s toolkit. It is a principle of non-discrimination to which everyone, including employers, must adhere, failing which they commit unfair discrimination. At first glance, therefore, one might view reasonable accommodation as a duty of restraint: to not discriminate. However, compliance with the duty requires taking positive steps to adapt the workplace to the needs of employees with disabilities.
Reasonable accommodation bridges the ostensibly negative duty not to unfairly discriminate with the positive duty to promote equality, thereby constructing a unique positive non-discrimination duty. It therefore can achieve the EEA’s joint purposes simultaneously: ‘promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination’ (section 2(a)).
The decision in Damons
How was reasonable accommodation employed in Damons? Adam Damons was a firefighter for the City of Cape Town (the City) when, during a drill conducted as punishment, he acquired a permanent mobility impairment. After working as a non-operational firefighter for eight years, he was rejected for a promotion to senior firefighter because he could not pass the physical assessment. Damons alleged unfair disability discrimination under section 6(1) of the EEA. The City objected, arguing that Damons could not meet the inherent requirements of the job—a complete defence under section 6(2)(b) of the EEA.
A majority of the Court, per Majiedt J, agreed with the City. However, in a lone minority, Pillay AJ took a different view. She held that Damons had suffered unfair discrimination not because the City failed to promote him to the role of senior firefighter, but because it had failed to reasonably accommodate him in any other roles with prospects for career advancement. These divergent outcomes reflect each judge’s conceptual understanding of the relationship between the ostensibly negative duty to avoid unfair discrimination and the positive duty to promote equality through reasonable accommodation.
Reasonable accommodation revisited
For Majiedt J, reasonable accommodation is only available if it would allow the disabled employee to meet the inherent requirements of the job. But this is an impoverished account of reasonable accommodation. Where society, and particularly the workplace, is built without considering the inclusion of persons with disabilities in the first place, Majiedt J’s view of accommodation seeks only to include the person in the workplace and not accommodate their differences therein. Limiting the redistributive potential of equality to what is already on offer overlooks the importance of human rights in forging new opportunities for persons to exercise a wider range of their capabilities.
Furthermore, in Majiedt J’s view, accommodation aims to make the employee’s disability irrelevant so that they can be like the other ‘normal’ employees. Here, normality disguises ableist stereotypes about the contributions that a disabled employee can bring to the workplace. Ordinarily having a diversity of lived experiences across race, gender, culture and/or religion is seen as an asset, yet this view treats disability as a liability, only bringing efficiency losses and costs. This attitude is both discriminatory and untrue. As Emens has argued, by having to adapt to environments built without considering their inclusion, disabled persons often develop and uncover creative and efficient ways of doing things that add to — rather than detract from — efficiency. Their inclusion also promotes institutional change as certain accommodations (e.g., improved air filters for asthmatic employees) can be beneficial to all employees’ health and contentment, corroding the barrier between the ‘able-bodied’ norm and the ‘disabled’ other.
Conclusion
Graeber wrote that ‘the ultimate, hidden truth of the world is that it is something we make, and could just as easily make differently’. Persons with disabilities are the world’s largest minority but are invisibilised in our everyday lives. They are easier to ignore when they do not occupy space in mainstream society, like education or employment, and when our law, in its construction and application, does not imagine space for them. There is an imperative — not to bring persons with disabilities into the so-called mainstream — but to bring the mainstream to persons with disabilities. Reasonable accommodation applied transformative, can help us make the world differently — and better.
