A Denial of a Reasonable Accommodation: Direct Discrimination, Indirect Discrimination,

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

2. 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.

3. 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:

4. 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.

5. 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.

6. 3. Conclusion: A denial of a reasonable accommodation can be regarded as a formof 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.

7. 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:

8. 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.

9. 2. A Reasonable Accommodation is an Individualised Measure • A reasonable accommodation is an individualisedmeasure, and does not require that the absence of the accommodation disadvantage anyone other than the claimant. • Where a specific individualisedreasonable 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.

10. 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 …

11. 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.

12. 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.

13. 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.