A Denial of a Reasonable Accommodation: Direct Discrimination, Indirect Discrimination, or a Third Form of Discrimination? Lisa Waddington, EDF Chair in European Disability Law

How to classify a denial of a reasonable accommodation How to classify a denial of a reasonable accommodation? What kind of discrimination is it? The reasonable accommodation duty is a complex and often misunderstood concept - any approach should seek to add clarity and not create more confusion.

Should a Denial of a Reasonable Accommodation be classified as Direct Discrimination? Definition of direct discrimination: where one person is treated less favourably than another is, has been, or would be treated, in a comparable situation on the ground of disability. A denial of a reasonable accommodation could be classified as direct discrimination, but there are problems with this approach:

1. Comparator Issue In general a comparator is required to establish direct discrimination. Identifying a comparator can be difficult in a case of a denial of a reasonable accommodation. The comparator requirement sits rather uneasily with the reality of the way the reasonable accommodation duty works. Possible solution: Remove the comparator requirement for reasonable accommodation claims, and say that direct discrimination includes the failure to create equal opportunities. However, this is a complicated approach.

2. Justification Issue Direct discrimination is generally prohibited outright and there are no possible justifications. Cost is never accepted as a legitimate justification or reason for direct discrimination. However cost (disproportionate or undue burden) can be a justification for a denial of a reasonable accommodation. Recognising cost as a legitimate reason for a denial of a reasonable accommodation (as direct discrimination), could undermine the strict prohibition of direct discrimination that exists elsewhere, and imply that cost could be a reason to justify other forms of direct discrimination.

3. Conclusion: A denial of a reasonable accommodation can be regarded as a form of direct discrimination but there are problems: This approach fits uneasily with the requirement to have a comparator to establish direct discrimination. This could undermine the strict prohibition of direct discrimination which otherwise does not permit cost as a justification. This could result in confusion concerning the concepts of direct discrimination and reasonable accommodation.

Should a denial of a Reasonable Accommodation be classified as Indirect Discrimination? Definition of indirect discrimination: An apparently neutral provision, criterion or practice which would put persons having a particular disability at a disadvantage, unless the apparently neutral provision, criterion or practice is justified by a legitimate aim, and the means chosen for achieving that aim are appropriate and necessary. A denial of a reasonable accommodation could be classified as indirect discrimination, but there are problems with this approach:

1. Indirect Discrimination is a form of discrimination directed at groups not individuals Indirect discrimination is assessed in terms of groups – one group of people e.g. wheelchair users must be disadvantaged in comparison with another group – e.g. people who can walk upstairs with little effort. In some cases this comparison would identify a denial of a reasonable accommodation as a form of discrimination – but not in all cases.

2. A Reasonable Accommodation is an Individualised Measure A reasonable accommodation is an individualised measure, and does not require that the absence of the accommodation disadvantage anyone other than the claimant. Where a specific individualised reasonable accommodation is at issue, it might be impossible to establish the group based disadvantage required for indirect discrimination – meaning that no indirect discrimination could be identified. Possible solution: Classify any unjustified failure to make a reasonable accommodation as an act of indirect discrimination. However, this is a complicated approach.

3. Different Justifications The justification for what would otherwise be an indirectly discriminatory act (legitimate aim, and means chosen to fulfil legitimate aim are appropriate and necessary) is different from the justification for a denial of a reasonable accommodation (disproportionate or undue burden). Are these justifications the same or different in practice? Not clear …

4. Conclusion: A denial of a reasonable accommodation can be regarded as a form of indirect discrimination but there are problems: This approach fits uneasily with the group-based assessment inherent to indirect discrimination. The justification tests for denial of reasonable accommodation and indirect discrimination are worded differently.

What is the overall conclusion? A denial of a reasonable accommodation could potentially be classified as a form of direct discrimination or as a form of indirect discrimination. In both cases it would need to be defined as a special non-typical form of such discrimination. These two approaches would be in accordance with the CRPD.

Denial of a reasonable accommodation as a third form of discrimination However, the favoured approach is to define a denial of a reasonable accommodation as a third and separate form of discrimination: Emphasizes the difference between discrimination in the form of a denial of a reasonable accommodation and other forms of discrimination. Helps to heighten awareness of the existence of discrimination in the form of a denial of a reasonable accommodation. Does not create additional confusion with regard to the concepts of direct and indirect discrimination.