Interpreting "reasonable accommodation" of persons with disabilities in the South African workplace

Abstract

This study aims to establish how reasonable accommodation requirements for the fair and equal treatment of persons with disabilities should be interpreted and applied in South African labour law. The rationale of this study is to advance the rights of persons with disabilities; moreover their right to be provided with reasonable accommodation in the workplace to eliminate disability-based discrimination. However, the right to reasonable accommodation is limited when such reasonable accommodation might cause unjustifiable hardship for the employer who is required to provide the accommodation. An employer may use such unjustifiable hardship as a defence for failure or refusal to provide reasonable accommodation to persons with disabilities. Despite an employer’s ability to rely on unjustifiable hardship as a defence, no clear criteria are followed in testing the threshold of a reasonable accommodation to determine when an employer has reached unjustifiable hardship in the South African workplace. The aforementioned inadequacy may lead to the arbitrary denial of providing reasonable accommodation to persons with disabilities, which in itself might constitute unfair discrimination. The study consequently sets out to establish a standard of fair treatment of persons with disabilities with specific reference to reasonable accommodation, and it is the view of this study that such a standard can only be reached by the development of a uniform test by which the threshold of reasonable accommodation can be tested to determine whether an unjustifiable hardship has occurred. Notwithstanding the fact that legislation and codes of good practices exists in South Africa that regulate the treatment of persons with disabilities, these legislations are, in the view of this study, not always sufficiently applied and interpreted to ensure equal and fair treatment of persons with disabilities. Consequently, the standardisation of a test to determine unjustifiable hardship within the South African workplace can only be done if the interpretation and implementation of reasonable accommodation and unjustifiable hardship in foreign jurisdictions are taken into consideration These foreign jurisdictions for purposes of this study consist of those of Canada due to its jurisprudence which has established several determining factors for unjustifiable hardship, and of the United States of America, which has integrated the criteria for unjustifiable hardship into legislation. In conclusion, the implementation of a standardised test for unjustifiable hardship will ensure the advancement of the right of persons with disabilities to equality, more over the equal opportunity for employment within the South African workplace.