Policy and Guidelines on Disability and the Duty to Accommodate, 2000
Legal Principles:
In the event that discrimination based on disability is found, those responsible for accommodation are obligated to show that discrimination is "justifiable" (2000, p. 16). Legally, a three-step test must be met by the providers of accommodation in this regard. A requirement, rule, standard etc. must be inclusive and must accommodate individual differences, up to the point of undue hardship. This ensures that each person is assessed according to his or her own abilities.
Providers of the accommodation must demonstrate that:
• a requirement, rule, standard etc. is essential by showing that the needs cannot be accommodated without undue hardship
• the requirement, rule, standard etc. is clearly connected to the function
• the requirement was adopted in good faith, for the fulfillment of the purpose
The Commission identifies the following factors in the analysis of whether the provider has met their obligation to assess and provide an accommodation:
• "whether the person responsible for accommodation investigated alternative approaches that do not have a discriminatory effect;
• reasons why viable alternatives were not implemented;
• ability to have differing standards that reflect group or individual differences and capabilities;
• whether persons responsible for accommodation can meet their legitimate objectives in a less discriminatory manner;
• whether the standard is properly designed to ensure the desired qualification is met without placing undue burden on those to whom it applies; and
• whether other parties who are obliged to assist in the search for accommodation have fulfilled their roles" (2000, p. 18).
Most Appropriate Accommodation
The most appropriate accommodation is one that most respects the dignity of the individual with a disability, meets individual needs, best promotes integration and full participation, and ensures confidentiality. Accommodation is a process, not an all or nothing prescription.
Accommodation will be considered appropriate if it will
• "result in equal opportunity to attain the same level of performance; or,
• to enjoy the same level of benefits and privileges experienced by others; or,
• if it is proposed or adopted for the purpose of achieving equal opportunity, and
• meets the individual's disability-related needs.
The Commission expects that the highest point in the continuum of accommodation must be achieved (full accommodation).
Full accommodation! = most appropriate
• phased-in full accommodation (over time)
• full, after reserve funds have been set aside
• alternative accommodation
Appropriateness of accommodations is determined separately and distinctly from whether or not the accommodation would result in "undue hardship".